This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. Part I describes and assesses the Court’s reasons for shifting to the nouveau régime in the statutory context. Part II explains why the Court’s shift to a nouveau régime for implying damage remedies under federal statutes does not justify a similar shift with respect to constitutional remedies. The Constitution’s omission of specific remedies for violation of the Constitution’s substantive provisions does not reflect the Founders’ belief that such remedies are unnecessary to give efficacy to those provisions, or that those provisions should be of only limited efficacy. The Constitution was adopted against the background of an ongoing system of common-law remedies, and the Founders understood that such remedies would be available to victims of constitutional violations. This Essay explains why this ancien régime of common- law remedies for constitutional violations retains considerable relevance to the current status and scope of Bivens remedies.
Carlos M. Vázquez,
Bivens and the Ancien Régime,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol96/iss5/6