| Abstract: |
Throughout the nineteenth century and much of the twentieth, remedies for federal government misconduct were often predicated on rights to sue conferred by such common law forms as trespass, assumpsit, and ejectment. But Erie, the law-equity merger, and other factors pushed those common law forms to the side. In 1946, Congress adopted the Federal Tort Claims Act (FTCA), imposing vicarious liability on the federal government for many of the torts of its officers and employees. Then, in the 1970s, the Supreme Court recognized federal common law rights to sue federal officers for certain constitutional torts under the Bivens doctrine. Yet these expanded remedies, available in theory, often fail in practice. For example, in Hernández v. Mesa (2020) the Court refused to recognize a right to sue under the Bivens doctrine while, at the same time, assuming that the FTCA barred the victim’s family from pursuing tort-based redress at common law for a cross-border shooting. Egbert v. Boule (2022) confirms that the Bivens doctrine, lacking a textual foundation, has no growing power. Invoking the history of nineteenth-century tort-based redress and channeling the textualism of Egbert v. Boule, this Article argues that current law, correctly interpreted, permits victims to pursue a wide range of tort claims against the federal government and its employees at common law. The Article first shows the many ways common law modes of redress can contribute to a remedial system for government wrongdoing that is now crowded with statutes and constitutional remedies. Turning to the text of the FTCA, the Article demonstrates that Congress preserved the right of individuals to sue in tort, either by naming the government in claims within its vicarious liability or by naming the responsible officer for tort-based wrongs to which the FTCA does not extend. A concluding section sketches the many ways tort litigation, brought against the official at common law, can supplement the current system of government accountability as the sun sets on the Bivens doctrine. [ABSTRACT FROM AUTHOR] |
