THE ELUSIVE DISCRETIONARY FUNCTION EXCEPTION FROM GOVERNMENT TORT LIABILITY: THE NARROWING SCOPE OF FEDERAL LIABILITY

An examination is made of the parallel development of the discretionary function exception (DFE) under the Federal Tort Claims Act (FTCA) in 1948 and under certain state statutes and decisions that waive sovereign immunity. The faulty reasoning in this line of cases is explored, and the legislative history of the statutes is examined. A more theoretically coherent model for analysis of DFE is proposed. This model clarifies governmental immunity without returning to the vagaries of the cumbersome and unpredictable system of private compensation bills or to the erroneous theories underlying sovereign immunity. The model also reflects new insights into the complexity of administrative process as tort liability evolves into another means of judicial control over the expansion of regulators' influence.