(Extra)ordinary Tort Law: Evaluating the Federal Tort Claims Act as a Constitutional Remedy.

Shortly after the Bivens remedy was born, the Federal Tort Claims Act nearly killed it. In Carlson v. Green, the United States argued that an implied constitutional remedy was no longer necessary because Congress had amended the FTCA to cover intentional torts. The Supreme Court disagreed, and Bivens survived. Today, Bivens is alive but showing its age. The Supreme Court has repudiated its rationale and refused to extend it to any new rights or fact patterns. Scholars fear that there is no longer a remedy for many of the constitutional violations of federal officers. But perhaps these concerns are overstated: As the United States argued in Carlson, the FTCA has the potential to serve as a constitutional remedy. This Note assesses just how great that potential is. First, it discusses the doctrinal viability of using the FTCA as a constitutional remedy. As it turns out, a growing circuit split over the FTCA's discretionary function exception now threatens the FTCA's ability to serve as a constitutional remedy just when it is most needed. After considering that threat, this Note evaluates the FTCA's effectiveness as a constitutional remedy. It considers the kinds of constitutional violations that the FTCA can redress and the defenses available to the United States. Finally, this Note examines the theoretical implications of relying on state tort law to vindicate federal constitutional rights. [ABSTRACT FROM AUTHOR]