The Federal Tort Claims Act and the “Discretionary Function” Exception: The Sluggish Retreat of an Ancient Immunity

Abstract

The older pattern of governmental immunity is familiar. Almost no one contends that it is fully defensible, yet almost no one contends that there should be compensation for all the ills that result from governmental operations. No one, for instance, suggests that there should be liability for the injurious consequence of political blunders such as the unwise imposition of tariff duties or the premature lifting of OPA controls. As long, at least, as liability is to be rested on fault there is a very good reason why the courts should not inquire into such matters. Fault here would mean an unreasonable mistake in legislative or executive action. The separation of powers in our form of government and a decent regard by the judiciary for its co-ordinate branches should make courts reluctant to sit in judgment on the wisdom or reasonableness of legislative or executive political action. Moreover, courts are not particularly well suited to pursue the examinations that would be necessary to make this kind of judgment.