Daniel Cohen

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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 of “discretionary” functions and has left this vague exception for the courts to interpret.

The Supreme Court has used a wide array of terms to describe the discretionary function exception and has intermittently revived and overruled prior language. The discretionary function exception has therefore rested entirely on judicial discretion in practice, changing in application based on the whims of the Court without any concrete factors on which to rely. This Note proposes that the Court formally adopt a factor- based standard in interpreting the discretionary function exception, based on five factors. By clearly articulating these factors, the Court can prevent future courts from abusing their discretion in applying the exception. This is especially important considering that such abuse could leave the government either largely immune from the consequences of its actions or open to crippling liability at every turn. The Federal Tort Claims Act was a pivotal step forward in solving this problem in 1946; clarifying the discretionary function exception today will be another crucial milestone.

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