Reinert on the Actual Success of Bivens Claims and Its Implications for the Constitutional Rights of Federal Employees
Alex Reinert (Cardozo) has posted on SSRN his forthcoming article in the Stanford Law Review: Measuring the Success of Bivens Litigation and its Consequences for the Individual Liability Model.
Here’s the abstract:
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called “Bivens” cause of action — initially extended to other constitutional provisions and then sharply curtailed over the past two decades — has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens — one that has been repeated in different venues for thirty years — is that the Court’s individual liability model, in which the offending officer is personally liable in damages, should be abandoned in favor of a governmental liability model akin to respondeat superior liability.
If Congress makes an obvious error in drafting a statute, can a court correct that error by effectively adding something to the statute that is not there? Such was the interesting jurisprudential question the Seventh Circuit confronted last January in United States v. Head, 552 F.3d 640 (2009). Because of a mix-up with statutory cross-references, the statute that lists permissible conditions of supervised release in the federal system does not include assignment to a halfway house. However, the first seven circuits to consider the question held that sentencing judges could indeed order placement in a halfway house, reasoning that a literal interpretation of the statute would produce an absurdity. In Head, the Seventh Circuit bucked the trend and rejected the government’s absurdity argument. (My post on Head is