The Catholic University of America

CUA Law Professor A.G. Harmon recently published an article entitled "'Should' or 'Must'?: Distinguishing Mandates from Guidelines in Tort Claims Contexts," in the West Virginia Law Review (18 W. Va. L. Rev. 1007). See below. 

“Should” or “Must”?: Distinguishing Mandates from Guidelines in Tort Claims Contexts


Whether under the historic justification that “the King can do no wrong,” or for the practical reason that it is best to preserve the public treasury as much as possible, the government—both federal and state—has deemed itself nearly impregnable to actions taken against it. Of course, exceptions exist, but only when the government deems that they do by way of a waiver.

When it comes to negligence, the sovereign—again, both state and federal—has generally granted that waiver by means of tort claims acts—in which the state deigns to be sued on any grounds that the courts recognize under the common law.

However, what the state grants, it can also take away. And when it comes to matters that require discretion, the state will argue most stridently that the waiver should not take effect. Under what is generally known as a “discretionary function exception,” (the “DFE”) courts must dismiss actions that amount to no more than second-guessing of some matter that the plaintiff claims led to his injury.
But just when it seemed the exceptions to the exceptions were at an end, there is yet one more—though it is seldom articulated as such: if the case in question involves non-compliance with a mandatory matter (i.e., a rule that the government made and then broke), the question of policy never enters the picture. Plaintiffs may proceed to their proofs.

To put it another way, although a plaintiff cannot argue “you should have done a better job of it,” which amounts to second-guessing the government in matters of judgment and is disallowed under the DFE, the plaintiff can argue that “you didn’t do what you said you would,” which will lead to government liability, if proven. A government that did not follow its own rule is open to that charge; as such, the waiver will apply.
But therein lies the question in such matters: does the case involve a rule? which precipitates yet another question: what exactly is a “rule,” in the sense meant in this context?, or, to put it another way, what is a “mandate” and what is only a “guideline”?

Much has been written about the second question—the nature of policy matters—which is the second prong of the standard two-part test for determining the applicability of tort claims acts. But little has been written about the first question, related to whether alleged breaches should be considered mandates or only guidelines.

This article brings some order to the discussion, both by means of explaining what the science of the language arts—linguistics—says about the matter, and how that science comports with what courts think they are doing when they determine a government statement is, or is not, a mandate. It will also provide an analytical framework—a set of factors—for courts to use in determining this issue, prioritize those factors, suggest a rationale for their application, and explain how they comport with other tools of statutory interpretation and construction. Considering that a plethora of actions for millions upon millions in damages each year are brought against the state, the article’s contribution should have a considerable impact.

Click here to view the article.


Professor's A.G. Harmon
Areas of Expertise

Written and Oral Argument


Legal Scholarship

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