Some federal common-law skeptics have provided criteria for keeping federal common law in check. Although not specifically addressing Bivensactions, Professor Nelson has argued that when engaged in federal common lawmaking, federal courts should see themselves as more tied to custom, general principles of the common law, and precedent, rather than seeing themselves as engaged in a freewheeling search for the best policy. This methodology makes federal common law less subject to criticism as usurping the lawmaking roles of other government actors. Professor Merrill has argued that federal common law needs to be specifically intended by the framers of a constitutional or statutory provision, or necessary to “preserve or effectuate some other federal policy that can be derived from the specific intentions” of the framers of a constitutional or statutory provision. He argued that Bivens was illegitimate under his criteria.

For those with more capacious views of federal common law, Bivens is not hard to defend. Some such scholars argue that federal common law is appropriate so long as the court can “point to a federal enactment, constitutional or statutory, that it interprets as authorizing the federal common law rule,” or to a federal interest, in order to justify federal common law. Indeed, Judge Friendly suggested that federal courts could appropriately make federal common law in areas of federal concern where a uniform rule was desirable, and suggested that tort suits against federal officers was such an area. And even some jurists who criticize implied statutory actions have argued that federal courts should be able to imply rights of action to implement the Constitution.

This Essay, by contrast, will address the extent to which Bivens actions might be justified even under the more restrictive views of the federal courts’ common-law powers. We particularly look to actions such as Bivens itself: damages actions for a trespassory harm that cannot be justified given constitutional limitations. Under restrictive criteria, one might ask if the framers of the Constitution or relevant statutes contemplated the trespass action as a vehicle for enforcement of constitutional prohibitions. This inquiry overlaps with whether the remedy is supported by common-law methodology and precedent. We also proceed to ask if the remedy is constitutionally necessary. This can be divided into two questions: (1) whether this trespass-type remedy is constitutionally necessary?; and (2) whether the federal form of the remedy is constitutionally necessary? We conclude that the Bivens decision itself may have been justified under these criteria, although other decisions implying constitutional actions may not be.



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