BIVENS AND THE ANCIEN REGIME.

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Date: May 2021
From: Notre Dame Law Review(Vol. 96, Issue 5)
Publisher: University of Notre Dame Law School
Document Type: Article
Length: 8,989 words
Lexile Measure: 1800L

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INTRODUCTION

In its most recent decision narrowly construing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, (1) the Supreme Court derided Bivens as the product of an "' ancien regime,'... [in which] the Court assumed it to be a proper judicial function to 'provide such remedies as are necessary to make effective' a statute's purpose." (2) In the context of statutorily created rights, the Court has rejected this ancien regime on the ground that it reflects a mistaken understanding of the nature of the legislative process. As the Court wrote in Hernandez v. Mesa:

[W]hen a court recognizes an implied claim for damages on the ground that doing so furthers the "purpose" of the law, the court risks arrogating legislative power. No law "'pursues its purposes at all costs.'" Instead, lawmaking involves balancing interests and often demands compromise. Thus, a lawmaking body that enacts a provision that creates a right or prohibits specified conduct may not wish to pursue the provision's purpose to the extent of authorizing private suits for damages. (3)

The Court's decision in Hernandez was based on the view that these considerations also apply with respect to damage remedies for constitutional violations.

This Essay considers the relevance for Bivens claims of the Court's shift to a nouveau regime to address the implication of private rights of action under statutes. Part I describes and assesses the Court's reasons for shifting to the nouveau regime in the statutory context. Part II explains why the Court's shift to a nouveau regime for implying damage remedies under federal statutes does not justify a similar shift with respect to constitutional remedies. The Constitution's omission of specific remedies for violation of the Constitution's substantive provisions does not reflect the Founders' belief that such remedies are unnecessary to give efficacy to those provisions, or that those provisions should be of only limited efficacy. The Constitution was adopted against the background of an ongoing system of common-law remedies, and the Founders understood that such remedies would be available to victims of constitutional violations. This Essay explains why this ancien regime of common-law remedies for constitutional violations retains considerable relevance to the current status and scope of Bivens remedies.

For most of our history, these remedies were regarded as neither federal law nor state law; they were understood to be part of the general common law. When the Supreme Court in Erie Railroad v. Tompkins eliminated this in-between category of law, the courts without discussion came to regard the common-law remedies as state-law remedies and, in Bivens, the Court recognized a supplemental federal remedy. Congress subsequently preempted state-law remedies against federal officials, preserving only the Bivens remedy. The Court, in turn, has been chipping away at Bivens on the ground that it constitutes improper judicial lawmaking. These developments risk leaving us with a remedial regime far narrower than that which had prevailed for most of our history. This Essay argues that the federal damage remedy recognized in Bivens could have been framed--and should...

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Gale Document Number: GALE|A666682355