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72 Notre Dame L. Rev. 447 (1996-1997)
Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity

handle is hein.journals/tndl72 and id is 457 raw text is: SUSCEPTIBLE TO FAULTY ANALYSIS: UNITED STATES v. GAUBERT AND THE RESURRECTION OF FEDERAL SOVEREIGN IMMUNITY Bruce A. Peterson* Mark E. Van Der Weidet Let every man make known what kind of government would com- mand his respect and that will be one step toward obtaining it. -Henry David Thoreau Concord Lyceum (February 1848) INTRODUCTION The king can do no wrong. That legal fiction, while perhaps equal- led in transparency only by the jury will disregard that, nonetheless char- acterized a century and a half of federal sovereign immunity in this country.' The king's invulnerability finally ended in 1946, after a thirty-year siege, when the 79th Congress passed the Legislative Reor- ganization Act, Title IV of which has become known as the Federal Tort Claims Act (FTCA). Except for several carefully considered ex- ceptions, American citizens suffering injury at the hands of their gov- * Shareholder, Popham, Haik, Schnobrich & Kaufman, Ltd., Minneapolis, Minnesota; BA. Cornell University 1972; J.D. Yale Law School 1978. The authors gratefully acknowledge the important contributions to this article made by Susan Gustad, J.D. Hamline University Law School 1996. This article is dedicated to the memories of C.R.S. and her mother and to her father. t Associate, Cleary, Gottlieb, Steen & Hamilton; B.A. University of Iowa 1992; J.D. Yale Law School 1995. 1 See, e.g., Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the author- ity that makes the law upon which the right depends.); see also 1 Wn.uaLi BLACK- sroNE, CoMMENTARIES, *237-45. For a different view of this maxim, see Langford v. United States, 101 U.S. 341 (1880).

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