The Federal Tort Claims Act: A Proposed Construction of the Discretionary Function Exception

The purpose of this article is a limited one. It contains no suggestions for a broad statutory scheme for distributing all the burdens and costs of government. Its purpose is to suggest no more than a workable and just construction for the discretionary function exception of the statute. For the greatest part, the suggestion is no more than what the legislative history of the exception suggests—that the courts take note of the special problems of determining the liability of the Government for torts and then proceed to decide the cases as they would have done if the exception were not present in the act. They will not be without guides if they do so. Historical analogies from the fields of mandamus actions and private damage suits against government officials, if analyzed in light of the reasons for the decisions, give some aid. More important, the principles of ordinary tort law supply answers to the liability of the Government under the act