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Bivens v. Six Unknown Named Agents recognized a damages remedy when federal agents violate an individual’s constitutional rights. The Bivens case law denies that remedy when “special factors” mark a case, but never defines what constitutes a special factor. Through a detailed review of doctrine at both the Supreme Court and the federal Circuit court level, this article shows that the special factors analysis has evolved to maintain the proper balance of power between the judiciary and the legislature. Courts deciding whether to grant a constitutional damages remedy must probe the will of Congress to determine whether existing laws preclude a Bivens remedy. Providing a principled, coherent approach to the tangled history of special factors, my analysis demonstrates that courts err when they find special factors in the preferences or prerogatives of the executive.

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Indiana Law Review

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Originally published in the Indiana Law Review. Reprinted with permission.