Class 17

Government Duty

Suing the government is not easy to do. In common law, courts may find that the government had no duty to act or that a failure to resolve a problem was not negligent. And in a variety of settings, the government enjoys sovereign immunity—freedom from suit without consent.

In this Section, we will first focus on suits brought under the Federal Tort Claims Act. The Federal Tort Claims Act (FTCA) is a limited waiver of the sovereign immunity of the U.S. government. But the FTCA retained several broad and controversial exemptions from liability. We will study those that apply to intentional torts and so-called discretionary functions. The FTCA defines a discretionary function as a claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty.” But what kinds of policy judgment should be immune from suit?

Next, we will consider cases that arise when the government fails to act. How should these cases be resolved from the standpoint of duty? Of breach? Should government actors be held to a higher or lower standard than others?

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