GOVERNMENTAL LIABILITY: Fall 2014
Tues. and Thurs. 1:30-2:50 (Room)
Professor Mark Niles
Room 386
274-4069
(mniles@wcl.american.edu)
SYLLABUS AND COURSE INFORMATION
The Course:
This course will examine the theoretical and practical considerations that arise in this country in
cases alleging civil liability on the part of governments, or employees of governments. We will
begin with an analysis of the basic doctrinal limitation on governmental liability C the sovereign
immunity doctrine – discussing both the historical and theoretical development of the doctrine,
and its most important representation in our legal system: the Eleventh Amendment to the United
States Constitution. The course will then focus on three important exceptions to the basic
sovereign immunity doctrine: the Federal Tort Claims Act, Section 1983 of the Civil Rights Act
of 1871, and the line of cases, beginning with Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, which allow for claims alleging the commission of constitutional torts by
federal government officials. In addition to our focus on the development of the sovereign
immunity doctrine and the impact of these three main exceptions, we will also address the most
important practical considerations that arise in civil cases involving the government, and the
major strategic issues that must be addressed by litigators on both sides of these cases. We will
also discuss the potential for developing a successful legal practice representing clients in civil
lawsuits against governments and government officials.
Required Texts:
Sisk, Litigating with the Federal Government (Second Edition, Foundation Press 2000)
Jeffries, Karlan, Low, Rutherglen, Civil Rights Actions: Enforcing the Constitution
(Foundation Press 2000)
Office Hours:
I will have regular office hours Monday and Wednesday mornings from 10 - Noon. I encourage
you to drop by during this time with questions or comments about the class or anything else. If
this time is not convenient for some reason, please call or email me and I will be happy to set up
an appointment. You are certainly welcome to come by my office at any other time, but if I am
otherwise occupied, I may have to ask you to come back during office hours or to make an
appointment.
Grades:
This class will have a Amidterm@ exam on October 14th. This exam will count for 40% of
your grade. There will be a take-home final examination which will count for 40% of your
grade. The remaining 20% of your grade will be based on class participation.
Midterm: The Amidterm@ exam will cover the material on sovereign immunity and the Federal
Tort Claims Act. The exam will take up one class period (1 hour and 20 minutes) and will be
“open book” and “open note.”
Final Exam: The final exam will test the material covered in the course after the midterm. It
will be an eight-hour take home final (about three hours for the answer, and the rest of the time
for commuting, printing, review, etc.) which may be picked up at any time during the exam
period.
Class Participation: I expect that all students will come to each class and complete all reading
assignments. Twenty percent of your final grade will be based on class participation. I will call
on students at random. You may Apass@ when called on twice during the semester without a
negative impact on your class participation grade, but if you pass more than twice, or are clearly
unprepared to discuss the material when called on, deductions will be made to your class
participation grade. Otherwise, class participation will be evaluated based on both the frequency
and quality of contributions to class discussion. Frequent absences from class will also factor
negatively into your class participation grade.
Reading Assignments
(All reading assignment are in either the Sisk or Jeffries texts on in the 11th Amendment
supplement available on the MyWCL site for the course)
I.
Sovereign Immunity
A.
1. (8/26):
CLASS CANCELLED
2. (8/28):
The Evolution of Federal Sovereign Immunity: Sisk, pp.104-135
3. (9/2):
Critiques of Federal SI: Sisk, pp. 135-146; Niles, Nothing but Mischief
(posted on MyWCL site), pp. 1-9
4. (9/4):
Judicial Construction of Immunity Waivers: Sisk, pp. 146- 163
B.
II.
Federal
State
5. (9/9):
State Sovereign Immunity and the 11th Amendment (Chisolm v.
Georgia, Hans v. Louisiana (11th Amd. Suppl., pp. 1- 10)
6. (9/11):
11th Amendment (cont.), Parden v. Terminal Railroad, Penn v. Union
Gas, Seminole Tribe v. Florida, (Suppl., pp. 11 - 33)
7. (9/16):
11th Amendment (cont.) Alden v. Maine, College Savings Bank v.
Florida Prepaid, Kimel v. Florida Bd of Regents (Suppl., pp. 33-59)
8. (9/18):
OPEN (11th Amendment (cont.))
The Federal Tort Claims Act B Express Waiver of Federal Sovereign Immunity
9. (9/23):
The Statute and Prerequisites for Suit (Sisk, pp. 173-198)
10. (9/25):
Standards for Liability (Sisk, pp. 198-225)
11. (9/30):
Discretionary Function Exception (Niles, Nothing But Mischief,…; Sisk,
pp. 227-250)
12. (10/2):
DFE (cont.) (Sisk, pp. 250-279)
III.
13. (10/7):
Intentional Torts and Damages (Sisk, pp. 284 – 296; 308-314)
14. (10/9):
Review; Official Liability and FTCA practice in the solo and small
firm
15. (10/14):
Midterm
Constitutional Torts
A.
Section 1983
16. (10/16):
AUnder Color of Law@ (Jeffries, pp. 1-18)
17. (10/21):
The Eleventh Amendment and 1983 (Jeffries, pp. 31-41)
1.
AOfficer Liability@
18. (10/23):
Absolute Immunity (Jeffries, pp. 42-70)
19. (10/28):
Qualified Immunity (Jeffries, pp. 75-97)
21. (11/4):
Governmental Bodies as APersons@ (Jeffries, pp. 148-160) (Guest
Lecturer)
2.
AGovernmental Liability@
22. (11/6):
Immunity of Governmental Bodies (Jeffries, pp. 160- 184) (Guest
Lecturer)
23. (11/11):
Policy, Training and Custom) (Jeffries, pp. 184-203)
24. (11/13):
Policy, Training and Custom (cont.) (Jeffries, pp. 203-223))
3.
Kinds of Harm Actionable
25. (11/18):
Constitutional Rights (Jeffries, pp. 223-247)
26. (11/20):
Constitutional Rights (cont.) (Jeffries, pp. 248 - 270)
27. (11/25):
B.
Non-Constitutional Rights (Jeffries, pp. 271-293)
Actions Against Federal Officers
28. (12/2):
Common Law Claims and Immunity (Sisk, pp. 639-654; 698-712)
29. (TBD):
Constitutional Claims (Bivens) (Sisk, pp. 677-698)