Alternatives to the Judicially Promulgated Feres Doctrine
Abstract
The U.S. Supreme Court, in Feres v. United States (1950), established the Feres Doctrine to protect the Government from tort liability derived from military decisions, such as those occurring in the cell extraction exercise described in this thesis (Baker v. United States). The Court has often concluded that this function of the Feres Doctrine, preserving military decision making and discipline, is necessary for the effective and efficient functioning of the U.S. military. Military decision making entails balancing the demands of the mission with the safety of the individual service member and the safety of the unit. This paper analyzes the nature of the Court's decisions in Brooks v. United States and Feres v. United States and concludes that the promulgation of the Feres Doctrine was an act of judicial legislation that violated the principles of separation of powers. The paper also addresses the need to critically look at the Feres Doctrine and determine whether the Federal Tort Claims Act and its 13 enumerated exceptions shield the Government from liability for most military leaders' decisions. Section II describes the history of the gradual abrogation of the United States' sovereign immunity, and Section III discusses the Federal Tort Claims Act. Section IV outlines the development of the Feres Doctrine. Sections V and VI critique the rationales for and against the Feres Doctrine. Section VII proposes applying the Federal Tort Claims Act's enumerated exceptions as an alternative to the Feres Doctrine. Section VII returns to the cell extraction exercise case and other cases to demonstrate how applying the Act's enumerated exceptions can protect military discipline and decision making while also ensuring that service members enjoy rights more commensurate with those of civilians under the Act. Section VIII addresses the possible future of the Feres Doctrine, given recent changes in the composition of the Supreme Court.
Document Details
- Document Type
- Technical Report
- Publication Date
- Apr 01, 2007
- Accession Number
- ADA521076
Entities
People
- Deirdre G. Brou
Organizations
- The Judge Advocate General's Legal Center and School