Bivens: The New Normal

Abstract

The Bivens cause of action has long been regarded as presumptively available in any case where a federal official has violated one's constitutional rights. Although Bivens itself recognized limited exceptions, and although those exceptions have multiplied and expanded over the years, the presumption remained in place. In the last five years, however, the presumption has disappeared; the courts are to make ad hoc judgments about whether to make damages available on policy grounds. Moreover, the War on Terror has made its own categorical inroads on the Bivens remedy. Recognizing that the separation of powers and national security arguments have force, this Essay argues that the Supreme Court has nonetheless lost its perspective on the doctrine.

Keywords: Bivens, separation of powers, War on Terror, alternative remedial scheme, constitutional torts

JEL Classification: K10, K19