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Not Fully Discretionary: Incorporating A Factor-Based Standard Into The Ftca's Discretionary Function Exception, Daniel Cohen

Northwestern University Law Review

The Federal Tort Claims Act (FTCA) pulls back the curtain of sovereign immunity and allows private citizens to directly sue the federal government for damages resulting from negligence. Passed in 1946 and never amended, the statute carries no limit on potential damages, only prohibiting punitive damages and jury trials. Other than those procedural limitations, the potential liability of the government is unlimited—except for one single exception: the discretionary function exception. The discretionary function exception shields the government from liability for “the failure to exercise or perform a discretionary function or duty.” Congress failed to elaborate on the definition and scope …