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In Copyright


This brief piece responds to Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 University of Pennsylvania Law Review 509 (2013).

Vázquez and Vladeck's provocative article suggests that courts dismiss Bivens claims because judges believe that “extending” Bivens into any “new context” instantiates disfavored judicial lawmaking. Focusing on Bivens’s peculiar place in federalism and federal law, Vázquez and Vladeck demonstrate that the logic of courts’ own legal interpretations suggests expanding Bivens remedies, yet courts paradoxically choose to narrow them instead. Why, and how, does that happen? Courts claim to reject Bivens actions out of passive virtue and institutional competence concerns. Vázquez and Vladeck focus on the former.

But neither justification fully explains the situation. Examining how courts justify their Bivens dismissals — through a results-oriented conflation of doctrines — reveals that the outcome drives the reasoning. That outcome is to insulate the Executive from those individuals it harms. Evaluating the relevant prudential concerns behind the goal of executive insulation — and their relation to institutional realities — may tell us more about Bivens than the Westfall Act can.

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University of Pennsylvania Law Review Online

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