Document Type
Article
Publication Date
2012
Rights
Abstract
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.
Publication Title
Indiana Law Review
First Page
719
Last Page
765
Required Text
Originally published in the Indiana Law Review. Reprinted with permission.
Recommended Citation
Anya Bernstein,
Congressional Will and the Role of the Executive in Bivens Actions: What Is Special about Special Factors?,
45
Ind. L. Rev.
719
(2012).
Available at:
https://digitalcommons.law.buffalo.edu/journal_articles/60
Comments
Originally published in the Indiana Law Review. Reprinted with permission.