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Remedies Symposium: Reexamining Bivens After Ziglar V. Abbasi, Bernard W. Bell
Remedies Symposium: Reexamining Bivens After Ziglar V. Abbasi, Bernard W. Bell
ConLawNOW
In Ziglar v. Abbasi, the U.S. Supreme Court revisited Bivens doctrine, suggesting that courts recognize constitutional tort actions only in cases closely analogous to one of the cases comprising the 1970s/1980s era Bivens trilogy, namely Bivens v. Six Unknown Named Agents, Davis v. Passman, and Carlson v. Green. In doing so the Court set forth several factors that might make a case distinguishable from those 1970s/1980s cases. This essay argues that the key to Ziglar v. Abbasi is not the analogical exercise the Court imposed, but the Court’s concern that Bivens actions could become a mechanism for …
Remedies Symposium: Remedial Discretion In Constitutional Adjudication: A Codicil, John M. Greabe
Remedies Symposium: Remedial Discretion In Constitutional Adjudication: A Codicil, John M. Greabe
ConLawNOW
This symposium paper elaborates on two questions raised by the author’s prior work, Remedial Discretion in Constitutional Adjudication. That paper disagreed with calls for a revival of non-retroactive judicial rulings to facilitate more constitutional innovation and argued that the Supreme Court’s practice of developing doctrines that withhold remedies for constitutional violations—e.g., qualified immunity, exceptions to the exclusionary rule, and harmless-error rules— is both sufficient to facilitate constitutional innovation and preferable to reviving non-retroactivity. Of necessity, the paper also developed a theory of when courts may withhold remedies for constitutional violations and when they may not: courts may withhold remedies responsive …