The enactment in 1946 of legislation recognizing a general liability on the part of the United States, and providing definite machinery for enforcement thereof, for damage or injury caused by the negligent or wrongful act or omission of employees of the Government while acting within the §cope of their employment, brought to an end an era of Federal immunity from responsibility frequently and harshly criticized by the bar and by students of government alike.
It is interesting to note that the barrier of sovereign immunity which precluded a judicial remedy against the Government for its wrongdoing, other than for breach of contract or pursuant to specific authorization by Congress, resulted, in the words of Professor Borchard, from an "historical error," and was "neither sound, just nor responsive to the demands of modern social engineering." The eighteenth century concept that "The king can do no wrong" apparently originally meant that the king was not privileged to do wrong, not that he was incapable of doing wrong or immune to liability for the consequences of wrongdoing. Only through misinterpretation and a process or rationalization has it been accepted in the United States as precedent for the doctrine of the Government's nonsuability in tort-that there can be no legal right as against the authority that makes the law on which the right depends. The great influence of the doctrine is illustrated by the fact that Government corporations created in recent years with authority "to sue and be sued" in their own names could not, in fact, be sued in tort until the decision of the Supreme Court in Kiefer & Kiefer v. Reconstruction Finance Corp.
"The Federal Tort Claims Act After Five Years,"
Mercer Law Review: Vol. 3:
2, Article 4.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol3/iss2/4