Bivens and the Ancien Regime Federal Courts, Practice & Procedure: The Fiftieth Anniversary of Bivens 96 Notre Dame Law Review 2020-2021

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96 Notre Dame L. Rev. 1923 (2020-2021)
Bivens and the Ancien Regime

handle is hein.journals/tndl96 and id is 1965 raw text is: BIVENS AND THE ANCIEN REGIME

Carlos M. Vdzquez*
INTRODUCTION
In its most recent decision narrowly construing Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics,' the Supreme Court derided Bivens
as the product of an ancien regime,' ... [in which] the Court assumed it to
be a proper judicial function to 'provide such remedies as are necessary to
make effective' a statute's purpose.2 In the context of statutorily created
rights, the Court has rejected this ancien regime on the ground that it reflects
a mistaken understanding of the nature of the legislative process. As the
Court wrote in Herndndez v. Mesa:
[W]hen a court recognizes an implied claim for damages on the ground that
doing so furthers the purpose of the law, the court risks arrogating legisla-
tive power. No law 'pursues its purposes at all costs.' Instead, lawmaking
involves balancing interests and often demands compromise. Thus, a law-
making body that enacts a provision that creates a right or prohibits speci-
fied conduct may not wish to pursue the provision's purpose to the extent of
authorizing private suits for damages.3
The Court's decision in Herndndez was based on the view that these consider-
ations also apply with respect to damage remedies for constitutional
violations.
This Essay considers the relevance for Bivens claims of the Court's shift
to a nouveau rigime 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 regime in the statutory context. Part II explains why the
Court's shift to a nouveau rigime for implying damage remedies under federal
statutes does not justify a similar shift with respect to constitutional remedies.
© 2021 Carlos M. Vizquez. Individuals and nonprofit institutions may reproduce and
distribute copies of this Essay in any format at or below cost, for educational purposes, so
long as each copy identifies the author, provides a citation to the Notre Dame Law Review,
and includes this provision in the copyright notice.
* Scott K. Ginsburg Professor of Law, Georgetown University Law Center. I am
grateful to Yuki Segawa for helpful research assistance.
1 403 U.S. 388 (1971).
2 Hernindez v. Mesa, 140 S. Ct. 735, 741 (2020) (quoting Ziglar v. Abbasi, 137 S. Ct.
1843, 1855 (2017)).
3 Id. at 741-42 (first quoting Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 234
(2013); and then citing Bd. of Governors of the Fed. Rsrv. Sys. v. Dimension Fin. Corp.,
474 U.S. 361, 373-74 (1986)).

1923