(Extra)ordinary tort law: Evaluating the 'Federal Tort Claims Act' as a constitutional remedy

• Published in: Stanford law review 2024-02, Vol.76 (2), p.481-525
• Main Author: Goldberg, Olivia
• Format: Article
• Language: English
• Subjects: Accountability; Civil rights; Constitutional law; Constitutional torts; Exceptions (Law); Federal court decisions; Federal government; Government liability; Government regulation; History; Judicial discretion; Law and legislation; Laws, regulations and rules; Privileges and immunities; Qualified immunity (Law); Remedies; Remedies (Law); Torts; Violations
• ISSN: 0038-9765; 1939-8581

Shortly after the 'Bivens' remedy was born, the 'Federal Tort Claims Act' nearly killed it. In 'Carlson v Green' the US argued that an implied constitutional remedy was no longer necessary because Congress had amended the FTCA to cover intentional torts. The Supreme Court disagreed, and 'Bivens' survived. Today, 'Bivens' is alive but showing its age. The Supreme Court has repudiated its rationale and refused to extend it to any new rights or fact patterns. Scholars fear that there is no longer a remedy for many of the constitutional violations of federal officers. But perhaps these concerns are overstated: As the US argued in 'Carlson', the FTCA has the potential to serve as a constitutional remedy. This note assesses just how great that potential is. First, it discusses the doctrinal viability of using the FTCA as a constitutional remedy. As it turns out, a growing circuit split over the FTCA's discretionary function exception now threatens the FTCA's ability to serve as a constitutional remedy just when it is most needed. After considering that threat, this note evaluates the FTCA's effectiveness as a constitutional remedy. It considers the kinds of constitutional violations that the FTCA can redress and the defenses available to the US. Finally, this note examines the theoretical implications of relying on state tort law to vindicate federal constitutional rights.