Legal History Commons^™

State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.

The concerns that …

Is Law? Constitutional Crisis And Existential Anxiety, Alice G. Ristroph

Georgetown Law Faculty Publications and Other Works

In the recurring discussions of constitutional crises, one may find three forms of existential anxiety. The first, and most fleeting, is an anxiety about the continued existence of the nation. A second form of anxiety—to my mind, the most interesting form—is an anxiety about the possibility of the rule of law itself. Third, and most solipsistically, references to crisis in constitutional law scholarship could be the product of a kind of professional anxiety in the legal academy. We may be asking ourselves, “Constitutional theory: what is it good for?” and worrying that the answer is, “Absolutely nothing.” And yet, I …