Backing Off Bivens and the Ramifications of this Retreat for the Vindication of First Amendment Rights

72 Pages Posted: 4 Oct 2011

See all articles by Joan E. Steinman

Joan E. Steinman

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: 1984


In 1983 the United States Supreme Court decided two cases that together constitute a significant retrenchment from the Court's previous position in the Bivens line of cases. In these two newest cases, Chappell v. Wallace and Bush v. Lucas, the Supreme Court substantially raised the barriers to federal court recognition of certain causes of action for money damages arising directly under the Constitution. The Court did so without acknowledging that this was the purpose or effect of its line of reasoning, and without proffering any cogent explanation or justification for this change in the law. Additionally, the Court wrote opinions in these two cases that provide no guidance to lower federal courts on the critical question of how the constitutional adequacy of congressional remedial schemes is to be judged.

Part I of the Article, analzyes Chappell and Bush against the backdrop of the preceding Bivens cases. The analysis explains how these cases presented situations that were similar to one another but unlike any the Supreme Court previously had faced in Bivens cases. It demonstrates how the Court departed from the line of analysis that its previous Bivens cases had established, in a way that made it more difficult for at least some plaintiffs seeking vindication of their constitutional rights to succeed in having a money damage remedy implied directly under the Constitution. The Article then argues that this raising of the barriers to recovery under the Constitution was not convincingly supported, and enhanced the risk that the constitutional rights of some people, in some circumstances, will be so unenforceable as to violate constitutional minima. In conjunction with this analysis of Chappell and Bush, the Article explores the constitutional theory that underlies Bivens actions. It suggests some specific questions courts ought to address when faced with the issue of whether a legislated remedial scheme should preclude a Bivens remedy. In particular, the Article proposes several matters courts ought to examine when judging whether a legislated remedial scheme is constitutionally adequate.

Part II argues in favor of a money damage remedy under the Constitution for violations of first amendment rights. It then discusses a number of Bivens actions brought under the first amendment to the Constitution to illustrate the possible implications of Chappell and Bush. The discussion shows how these recent Supreme Court decisions increase the risk that first amendment rights will be under-enforceable, even unconstitutionally so. Finally, the Article identifies first amendment Bivens cases which remain largely unaffected by Chappell and Bush.

Keywords: Bivens, First Amendment

JEL Classification: K40, K41, K49

Suggested Citation

Steinman, Joan E., Backing Off Bivens and the Ramifications of this Retreat for the Vindication of First Amendment Rights (1984). Michigan Law Review, Vol. 83, No. 269, 1984, Available at SSRN:

Joan E. Steinman (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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