Origins and abolishing of sovereign immunity in tort?

Sovereign immunity is a legal doctrine that originated from English common law, which held that the government or sovereign could not be sued without its consent. This doctrine was based on the idea that the government should not be held liable for its actions in the same way that private individuals or entities are.

In the United States, sovereign immunity was initially adopted from English common law and applied to the federal government and state governments. However, over time, the doctrine has been limited and modified through legislation and court decisions.

One significant development in the abolishment of sovereign immunity in tort was the passage of the Federal Tort Claims Act (FTCA) in 1946. This law waived the federal government's immunity from tort liability in certain circumstances, allowing individuals to sue the government for tortious acts committed by its employees.

Similarly, many states have also passed laws that waive sovereign immunity in tort cases, allowing individuals to sue state and local governments for negligence or other wrongful acts. These laws typically include exceptions and limitations on the government's liability, such as caps on damages or notice requirements.

Overall, the trend in the United States has been towards limiting sovereign immunity and allowing individuals to seek redress for injuries caused by government actions. However, sovereign immunity still exists in certain circumstances, such as in cases involving discretionary government functions or certain types of claims against the federal government.

Origins of Sovereign Immunity in Tort

- Divine Right of Kings: Monarchs were considered divinely ordained and above the law.
- The State as a Legal Entity: The concept that the state is a distinct legal entity, separate from its individual members, developed gradually.
- Prerogative of the Crown: The English Crown claimed the right to be immune from legal liability.
- US Constitution's 11th Amendment (1795): Established sovereign immunity for states within the federal judicial system.

Abolishing Sovereign Immunity in Tort

- Federal Tort Claims Act (1946): Waived sovereign immunity for the federal government in certain circumstances.
- Westfall Act (1988): Extended the FTCA to include employees of the federal government.
- State Tort Claims Acts (varying by state): Gradually abolished or limited sovereign immunity for state and local governments.
- Common Law Developments: Courts have used the "ultra vires" doctrine to hold governments liable for actions beyond their legal authority.
- Public Policy Considerations: The need to protect individuals from governmental harm and the fairness of holding governments accountable outweighed the traditional reasons for immunity.

Exceptions to Sovereign Immunity

Despite the abolishment of sovereign immunity, exceptions still exist in certain cases, such as:

- Intentional Acts: Governments are generally not liable for intentional torts.
- Discretionary Functions: Governments are immune from liability for decisions or actions taken in the exercise of discretionary authority.
- Immunity from Suit: Governments cannot be sued directly in certain circumstances, such as when an injunction or damages are sought.