This study examines the Feres doctrine, the judicial policy that immunizes service members from civil liability when causing harm to each other. Created by the Supreme Court nearly 70 years ago, the insulation from judicial review is practically absolute, applying to nearly every variety of intra-military harm, from a negligent delivery that leads to the mother’s death to intentional, abhorrent wrongdoing such as sexual assault. The doctrine bars service member suits across the board. The study traces the doctrine’s theoretical and philosophical roots, assessing its historical development and documenting its current state. A comprehensive legal analysis, not only is every Supreme Court decision in the Feres context considered, account is taken of most lower court decisions as well as the academic scholarship. Significant findings include the fact that the doctrine, while receiving near universal criticism, has been dramatically expanded by lower courts. Today, immunity applies to wrongdoing where the “military aspect” of the activity is remote, such as malfeasance during off-duty recreational activities. It was also found that the judges applying the doctrine likely sustain moral injury as a consequence. Viewing the policy as unjust, judges violate deeply held beliefs when dismissing service members’ claims, claims civilians in similar situations are allowed to bring. Finally, the study found that most courts also dismiss ancillary suits stemming from intra-military harm, including state-level claims filed against wrongdoers personally. The result is that military survivors of non-duty-related misconduct, such as survivors of sexual assault, are “effectively denied any civil remedy against a wrongdoer who was not acting within the scope of his military employment” (Day v. Massachusetts, 1999, p. 684 [italics in original]). The study concludes with a recommendation for curing the doctrine of its most objectionable aspects, a proposal intended to bring the policy into better alignment with traditional notions of justice and fair play.
|Commitee:||Patterson, Michael, Tobin, John|
|School Location:||United States -- California|
|Source:||DAI-A 80/08(E), Dissertation Abstracts International|
|Subjects:||Law, Military studies|
|Keywords:||Civil liability, Feres, Legal analysis, Military, Service member, Sovereign immunity|
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