The propriety of Bivens (1) actions is part of the debate about federal common law. (2) For some judges and scholars, implied actions are a particularly reprobated form of federal common law. (3) Justice Alito's opinion for the Court in Hernandez v. Mesa treated Bivens and its progeny as "products of an era when the Court routinely inferred 'causes of action'" under statutes and then "extended th[e] practice [to] the Constitution." (4) Both implied statutory and constitutional actions, he stated, are in tension with the Constitution's "separation of legislative and judicial power." (5) And he rejected arguments that the historical availability of common-law claims against federal officers in federal courts supported Hernandez's claim, because those cases preceded Erie Railroad Co. v. Tompkins's admonition that "[t]here is no federal general common law." (6) He also suggested that if Bivens were decided today, the Court would be unlikely to reach the same result. (7)
The beginning premise for critiques of federal common law is that federal common lawmaking often involves policymaking discretion more properly exercised by the states or Congress. (8) Were courts more constrained by custom, precedent, and the general principles of common law, then federal common law arguably would be of less concern. (9) But because precedent is easily malleable, it provides little constraint on courts using federal common law to implement their own policy choices. (10)
Some federal common-law skeptics have provided criteria for keeping federal common law in check. (11) Although not specifically addressing Bivens actions, Professor Nelson has argued that when engaged in federal common lawmaking, federal courts should see themselves as more tied to custom, general principles of the common law, and precedent, rather than seeing themselves as engaged in a freewheeling search for the best policy. (12) This methodology makes federal common law less subject to criticism as usurping the lawmaking roles of other government actors. Professor Merrill has argued that federal common law needs to be specifically intended by the framers of a constitutional or statutory provision, (13) or necessary to "preserve or effectuate some other federal policy that can be derived from the specific intentions" of the framers of a constitutional or statutory provision. (14) He argued that Bivens was illegitimate under his criteria. (15)
For those with more capacious views of federal common law, Bivens is not hard to defend. Some such scholars argue that federal common law is appropriate so long as the court can "point to a federal enactment, constitutional or statutory, that it interprets as authorizing the federal common law rule," (16) or to a federal interest, in order to justify federal common law. (17) Indeed, Judge Friendly suggested that federal courts could appropriately make federal common law in areas of federal concern where a uniform rule was desirable, (18) and suggested that tort suits against federal officers was such an area. (19) And even some jurists who criticize implied statutory actions have argued that federal courts should be able to imply rights of action to implement the...