The Experts below are selected from a list of 37737 Experts worldwide ranked by ideXlab platform
William P Kratzke - One of the best experts on this subject based on the ideXlab platform.
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the convergence of the discretionary Function Exception to the federal tort claims act with limitations of liability in common law negligence
2012Co-Authors: William P KratzkeAbstract:The Federal Tort Claims Act (FTCA) preserved the government's common law immunity from tort liability by excepting the Act’s applicability to any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary Function or duty on the part of a federal agency or any employee of the government, whether or not the discretion involved be abused.” This phrase has generated much case law and commentary. In fact, the words may be shrouded in more confusion and mystique than necessary. The discretionary Function Exception to the FTCA contributes little to the determination of tort claims against the government that is not already provided by the common law of negligence. The development of the law of discretionary Functions or duties so closely parallels the development of policy limitations upon tort liability generally that they are indistinguishable, except for the fact that a jury is given a part to play in tort claims not made under the FTCA. A finding of discretion in fact turns only upon the inability of a court to evaluate the government's conduct against an objective standard of negligence. Beyond this, it is not possible to conceive a more sophisticated test of discretion. In light of the fact that negligence cases do not generally arise from planned transactions, this is really neither surprising nor alarming. Rather the limitations placed upon the government’s liability under the FTCA’s discretionary Function Exception converge with the limitations imposed by the common law doctrine of proximate cause.
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the supreme court s recent overhaul of the discretionary Function Exception of the federal tort claims act
1993Co-Authors: William P KratzkeAbstract:The discretionary Function Exception to the Federal Tort Claims Act (FTCA) establishes a line beyond which federal courts may not assess liability for negligence in favor of injured persons against the United States. After the Supreme Court’s Dalehite and Indian Towing decisions, lower courts developed serviceable standards by which to mark that line. Recently, the Court in three opinions established a new analytical model for lower courts to follow in marking that line. The risk of establishing any model is that it may be a pointless quest for unattainable exactitude. Courts in fact define the range of governmental activities for which there is no liability simply by refusing to make any determination regarding negligence. An analytical model cannot change this. Some may endeavor to describe how to apply the discretionary Function Exception in terms of how agencies operate, i.e. a process approach. This article describes application of the discretionary Function Exception in terms of how courts operate. This approach makes application of the discretionary Function turn only on a court’s capacity to review particular conduct of government employees against a negligence standard. This article undertakes to summarize the policy objectives of negligence law and to examine how courts determine whether they can pursue such objectives in a particular FTCA case. The discretionary Function Exception does not compel any particular outcome in a case, and so this article may appear to offer less than others to guide determinations of whether government conduct falls within the discretionary Function Exception.
Steven L Schooner - One of the best experts on this subject based on the ideXlab platform.
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the ftca discretionary Function Exception and accounting malpractice
1999Co-Authors: Steven L SchoonerAbstract:These two short pieces discuss General Dynamics Corp. v. United States, in which the Ninth Circuit reversed what appeared to be the first successful use of the Federal Torts Claims Act (FTCA) by a government contractor to pursue a professional malpractice claim against a federal agency, awarding more than $25 million in damages due to professional malpractice committed by the Defense Contract Audit Agency (DCAA). The latter piece: (1) briefly summarizes the history of the case, explaining how a routine contractual compliance audit lead to a $25 million malpractice award; (2) introduces the discretionary Function Exception to the FTCA; (3) examines the application of the discretionary Function Exception in the context of prosecutorial discretion; (4) discusses two significant cases that demonstrate the fragile boundaries of the discretionary Function Exception; (5) describes guidance from the Department of Justice for government counsel faced with raising the discretionary Function Exception to dismiss FTCA actions; and (6) concludes by acknowledging that efforts to reign in the scope of the discretionary Function Exception to the FTCA are sure to continue. The earlier piece discusses the district court decision.
John L Watts - One of the best experts on this subject based on the ideXlab platform.
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differences without distinctions boyle s government contractor defense fails to recognize the critical differences between civilian and military plaintiffs and between military and non military procurement
2007Co-Authors: John L WattsAbstract:This article explores the Supreme Court’s creation of the federal common law government contractor defense in Boyle v. United Technologies, Inc. and the subsequent split in the lower federal courts regarding the scope of the defense. First, this article examines the military roots of the defense, in particular the importance of separation of powers in military matters and military discipline in the development of the defense. It then dissects the Supreme Court’s approval of the defense in Boyle, as well as the unexpected adoption of the discretionary Function Exception to the Federal Tort Claims Act as the rationale for the defense. It explains how this shift in rationale expanded the application of the defense, but also created a logical incongruity between the broad rationale and the limiting test approved by the Supreme Court. This incongruity has led to disagreement in the lower federal courts as to the proper scope of the defense. The test approved by the Supreme Court also resulted in a divide between the goals of the defense and the realities of military procurement today. Because of the requirements of modern armed combat, Congress has passed legislation that greatly increases the speed and ease with which the military can procure the latest technological improvements through off-the-shelf purchases, rather than the slow process of designing and developing products to military specification. However, the defense articulated by the Supreme Court in Boyle does not apply to these off-the-shelf purchases. Accordingly, servicemembers and the judiciary are allowed to use state tort law to question military decisions constitutionally allocated to the political branches of government.The solution proposed by this article is a military contractor defense designed principally to ensure respect for the Constitution’s express allocation of military matters to the political branches of government and to protect the uniquely federal interest in military discipline. The military contractor defense provides a strong basis for the creation of federal common law, results in a defense that reflects the actual procurement process, and eliminates the current split in the courts by providing a clear and logical scope to the defense.
Thomas Longoria - One of the best experts on this subject based on the ideXlab platform.
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bureaucracy that kills federal sovereign immunity and the discretionary Function Exception
2002Co-Authors: William G Weaver, Thomas LongoriaAbstract:Political scientists normally discuss sovereign immunity in the context of international law and relations. The domestic effects of sovereign immunity are almost never examined, even though those effects are profound and implicate a range of issues of interest to political scientists. The Federal Tort Claims Act (FCTA) (1946) is a main waiver of federal sovereign immunity and is designed to allow people injured by government employees to sue for money damages. The FTCA has a number of Exceptions, the most prominent of which is known as the “discretionary Function Exception.” This Exception retains sovereign immunity for the United States when a federal employee acts “based upon the exercise or performance or the failure to exercise or perform a discretionary Function or duty:::whether or not the discretion involved be abused.” This simple Exception expanded into a comprehensive tool of government that now confounds justice and federal governmental accountability.
William G Weaver - One of the best experts on this subject based on the ideXlab platform.
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bureaucracy that kills federal sovereign immunity and the discretionary Function Exception
2002Co-Authors: William G Weaver, Thomas LongoriaAbstract:Political scientists normally discuss sovereign immunity in the context of international law and relations. The domestic effects of sovereign immunity are almost never examined, even though those effects are profound and implicate a range of issues of interest to political scientists. The Federal Tort Claims Act (FCTA) (1946) is a main waiver of federal sovereign immunity and is designed to allow people injured by government employees to sue for money damages. The FTCA has a number of Exceptions, the most prominent of which is known as the “discretionary Function Exception.” This Exception retains sovereign immunity for the United States when a federal employee acts “based upon the exercise or performance or the failure to exercise or perform a discretionary Function or duty:::whether or not the discretion involved be abused.” This simple Exception expanded into a comprehensive tool of government that now confounds justice and federal governmental accountability.
