Copyright (c) 2001 Vermont Law School
Vermont Law Review
NOTE: THE TOTTEN DOCTRINE AND ITS POISONED PROGENY
25 Vt. L. Rev. 793
Sean C. Flynn
Essential to the American system of jurisprudence is the ability of all litigants to conduct complete discovery and obtain all pertinent information needed to present a worthy case or defense. 1 Additionally, the United States Constitution guarantees that all Americans shall not be deprived of life, liberty or property without due process of law. 2 These fundamental principles have, for the most part, gone unchallenged. During the past 125 years, however, a legal doctrine has emerged that impermissibly inhibits a plaintiff's ability to bring suit when the subject matter of the action involves state secrets. A Civil War era United States Supreme Court decision, Totten Administrator v. United States, originally stood for the proposition that the courts of the United States lacked jurisdiction to hear complaints against the United States brought by parties who alleged that they entered into contracts for secret services with the national government. 3 However, over the last century the Totten doctrine and its distant relative, the state secrets privilege, have expanded both in scope and application to frightening levels. 4 While courts invoked the Totten doctrine only six times between 1875 and 1951, 5 since 1951 it has been cited more than sixty-five times. 6 The principle for which Totten stands is no longer limited to cases involving contracts for secret services. In recent years, courts have used Totten to defeat otherwise valid claims under the Resource Conservation and Recovery Act 7 (RCRA) and the National Environmental Policy Act 8 (NEPA). 9
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