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The Discretionary Function Exemption: Legislation and Case Law

Author: NICHOLAS A. GIANNATASIO
Published in PAQ, Vol. 29 No. 2

Public administrators are often left without a decision
schematic in the execution of public policy. All decisions are not made
with certitude; rather, discretionary decisions are frequently made in
deciding the who, what, where, and how of politics. The Discretionary
Function Exemption of the Federal Tort Claims Act offers immunity
from prosecution to public administrators who exercise discretion
within the scope of their employment. This paper will explore the
political rationale of discretion and the protection of discretion by the
legislatures and courts. Furthermore, it offers a perspective on the
future of the Discretionary Function Exemption.

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