Duquesne Law Review


Absent any clear legislative history, the Supreme Court concluded in Feres that Congress had not intended the Federal Tort Claims Act to apply to injuries incident to military service. Since the Feres decision, the Court has offered a series of unpersuasive and inconstant rationales for its conclusion. This article offers a unified rationale that reflects a rational legislative concern and invites intelligent and consistent application by the Courts. Paradoxically, in determining the validity and scope of the government contractor defense, the Court having available a carefully considered, clearly articulated judicial opinion spelling out the applicability of that defense, saw fit to repudiate that judicial reasoning, thereby fashioning a defense far more sweeping than the defense requested. The author suggests that the Court would do well to reconsider its conclusion, tempering it with the preexisting judicial reasoning and with the unified rational the author offers for the Feres doctrine.

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