Noah Smith-Drelich (Chicago-Kent College of Law – Illinois Institute of Technology) has posted Is Bivens Dead? (Georgia Law Review, forthcoming) on SSRN. Here is the abstract:
For much of its fifty-year existence, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics has served as a tenuous counterpart to Section 1983, providing a cause of action for federal violations of the Constitution. When a federal officer, such as an ICE agent, unjustifiably shoots a protestor, or improperly detains a U.S. citizen, or seizes property in defiance of a court order, any subsequent path to compensation, deterrence, and ultimately justice likely runs through Bivens.
But Bivens may be dead—or so most think. Decades of Supreme Court decisions have criticized and limited Bivens. And where earlier empirical work suggested that Bivens survived the Court’s initial attacks, scholars and commentators alike have pronounced Bivens now fully defunct: the Court’s recent decisions in Ziglar v. Abbasi (in 2017) and Egbert v. Boule (in 2022) appear to have finally rendered Bivens, as Judge Don Willett of the Fifth Circuit put it, “practically a dead letter.”
This Article empirically tests this question, revealing, surprisingly, that Bivens persists. I catalogue and hand-code every federal and state decision relying on Bivens (4,808) issued after Egbert v. Boule. In so doing, I seek to answer not only whether Bivens is, in fact, a dead letter (it is not!), but how courts are resolving Bivens actions. Identifying the precise failure point for Bivens actions is illuminating, in part because the respective tests used in Ziglar and Egbert emphasize different priorities salient to the study of federal courts more generally, implicating the role of precedent, separation of powers, and constitutional rights and remedies. These results, too, are surprising: Ziglar continues to be the dominant analytical framework for courts considering Bivens actions, even after Egbert, suggesting, in turn, courts’ prioritization of Ziglar’s focus on stare decisis over Egbert’s separation-of-powers concerns. Finally, there is little uniformity across jurisdictions; this Article’s analysis reveals significant emerging circuit splits with respect to both the success rate of Bivens actions and also the test(s) used.
Highly Recommended!
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