Differences Without Distinctions: Boyle’s Government Contractor Defense Fails to Recognize the Critical Differences Between Civilian and Military Plaintiffs and Between Military and Non-military Procurement




Watts, John L.

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Oklahoma Law Review


This article explores the Supreme Court’s creation of the federal common law government contractor defense in Boyle v. United Technologies, Inc. and the subsequent split in the lower federal courts regarding the scope of the defense.

First, this article examines the military roots of the defense, in particular the importance of separation of powers in military matters and military discipline in the development of the defense. It then dissects the Supreme Court’s approval of the defense in Boyle, as well as the unexpected adoption of the discretionary function exception to the Federal Tort Claims Act as the rationale for the defense. It explains how this shift in rationale expanded the application of the defense, but also created a logical incongruity between the broad rationale and the limiting test approved by the Supreme Court. This incongruity has led to disagreement in the lower federal courts as to the proper scope of the defense.

The test approved by the Supreme Court also resulted in a divide between the goals of the defense and the realities of military procurement today. Because of the requirements of modern armed combat, Congress has passed legislation that greatly increases the speed and ease with which the military can procure the latest technological improvements through off-the-shelf purchases, rather than the slow process of designing and developing products to military specification. However, the defense articulated by the Supreme Court in Boyle does not apply to these off-the-shelf purchases. Accordingly, servicemembers and the judiciary are allowed to use state tort law to question military decisions constitutionally allocated to the political branches of government.

The solution proposed by this article is a military contractor defense designed principally to ensure respect for the Constitution’s express allocation of military matters to the political branches of government and to protect the uniquely federal interest in military discipline. The military contractor defense provides a strong basis for the creation of federal common law, results in a defense that reflects the actual procurement process, and eliminates the current split in the courts by providing a clear and logical scope to the defense.



Military, Government contractor, Procurement


60 Okla. L. Rev. 647