Some Recommendations Concerning Tort Liability of Government and its Employees for Torts and Constitutional Torts

79 Pages Posted: 24 Dec 2010

See all articles by William P. Kratzke

William P. Kratzke

University of Memphis - Cecil C. Humphreys School of Law

Date Written: 1996

Abstract

Statutory revisions of common law liability rules make liability determinations turn on construction of statutory terms. When those terms embody considerations that should be irrelevant to liability determinations, allocation of losses becomes perversely principled. The exceptions to the waiver of government immunity in the Federal Tort Claims Act (FTCA) either do not reflect sound policy or they do not articulate a policy particularly well. The FTCA’s applicability should be defined by a court’s ability to evaluate the conduct of government employees against standards courts have derived to serve the objective of reducing the combined costs of accident prevention measures and expected accident costs. Thus, Congress should repeal the exceptions from the FTCA’s waiver of sovereign immunity.

Federal courts have also developed rules imposing liability exclusively on individual federal government employees who violate the constitutional rights of individual citizens. Such placement of liability is ineffective in vindicating an individual’s constitutional rights and leads to inefficient and ineffective government. Congress should structure liability rules to serve appropriate guiding principles of government accountability by repealing 28 U.S.C. § 2679(b)(2)(A) and amending 28 U.S.C. § 2679(b) to provide that the United States shall be the exclusive defendant for alleged violations of constitutional interests whenever a government employee could have been directed, not inconsistently with regulatory policy and within the scope of his employment, to perform the act giving rise to the constitutional injury. This would better vindicate the rights recognized in Bivens and its progeny without impeding achievement of government policy.

Suggested Citation

Kratzke, William P., Some Recommendations Concerning Tort Liability of Government and its Employees for Torts and Constitutional Torts (1996). The Administrative Law Journal of The American University, Vol. 9, No. 4, p. 1105, 1996, University of Memphis Legal Studies Research Paper No. 92, Available at SSRN: https://ssrn.com/abstract=1730251

William P. Kratzke (Contact Author)

University of Memphis - Cecil C. Humphreys School of Law ( email )

One North Front Street
Memphis, TN 38103-2189
United States

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