Measuring the Success of Bivens Litigation and its Consequences for the Individual Liability Model

55 Pages Posted: 22 Sep 2009 Last revised: 15 Apr 2010

Alex Reinert

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: September 18, 2009

Abstract

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called “Bivens” cause of action - initially extended to other constitutional provisions and then sharply curtailed over the past two decades - has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens - one that has been repeated in different venues for thirty years - is that the Court’s individual liability model, in which the offending officer is personally liable in damages, should be abandoned in favor of a governmental liability model akin to respondeat superior liability.

Commentators base their criticism of the individual liability model on two empirical assumptions: (1) Bivens suits are almost never successful; and (2) the defense of qualified immunity, available only to individuals, is a nearly insuperable barrier to plaintiffs’ prevailing in Bivens claims. On this account, a move to the governmental liability model will ensure adequate compensation and deterrence while removing a substantial barrier to plaintiffs’ success. These empirical claims about the general failure of Bivens suits and the explanation for that failure have never been tested. This Article corrects that oversight by offering the results of the first detailed empirical study of the determinants and outcomes of Bivens litigation. Based on data collected from cases filed in five district courts from 2001-2003, this Article concludes that the truths that scholars and judges have taken as a given are unsupported. Bivens claims succeed at a much higher rate than previously thought, especially compared to other civil rights litigation, and the defense of qualified immunity rarely plays a role in the outcome of Bivens litigation. These data call into question the given wisdom about the characteristics of Bivens litigation, and undermine the policy proposals that have occupied the field in Bivens scholarship.

Keywords: Bivens, civil rights, individual liability, entity liability, docketology, qualified immunity

Suggested Citation

Reinert, Alex, Measuring the Success of Bivens Litigation and its Consequences for the Individual Liability Model (September 18, 2009). Cardozo Legal Studies Research Paper No. 273; Stanford Law Review, Vol. 62, p. 809, 2010. Available at SSRN: https://ssrn.com/abstract=1475356

Alexander A. Reinert (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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