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96 Notre Dame L. Rev. 1755 (2020-2021)
Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation against Federal Officers

handle is hein.journals/tndl96 and id is 1797 raw text is: FEDERAL COURTS, PRACTICE & PROCEDURE
Andrew Kent*
This Essay was written for a symposium marking the fiftieth anniversary of the Supreme
Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcot-
ics. As the current Court has turned against Bivens-seemingly confining it to three specific
contexts created by Bivens and two follow-on decisions in 1979 and 1980-scholars and liti-
gants have developed a set of claims to respond to the Court's critique. The Court now views the
judicially created Bivens cause of action and remedy as a separation-of-powers foul; Congress is
said to be the institution which should weigh the costs and benefits of allowing constitutional tort
suits against federal officers for damages, especially in areas like national security or foreign
affairs in which the political branches might be thought to have constitutional primacy. Schol-
arly writing and litigation briefs critical of the Court's treatment of Bivens now frequently focus
on damages suits under common law or general law against American government officers in the
early republic, reading them as giving Bivens a quasi-originalist pedigree. This historical writ-
ing about officer damages suits claims that courts in the early republic: acted independently of
Congress to impose significant restraints on federal officers; protected persons from federal over-
reach no matter their citizenship and territorial location, and even during wartime; and refused
to grant anything like qualified immunity that might have softened the blow of strict personal
liability and promoted government efficiency. Common-law damages suits against federal officers
are said to have remained routinely available until after Bivens was decided when, in the 1988
Westfall Act, Congress barred state-law tort suits against federal officers acting within the scope of
their employment.
Through case studies of litigation against federal offcers involved in customs enforcement
and maritime seizures, this Essay qualifies and revises these claims. In those two contexts, I show
that there was substantial political branch endorsement of personal damages liability of federal
©   2021 Andrew Kent. 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.
*   Professor and John D. Feerick Research Chair, Fordham Law School. Thanks to
other participants in this symposium for lively discussion, the Notre Dame Law Review editors
for their hard work, my colleague Thomas Lee for expert review of an earlier draft, and
Patrick Reed for helpful conversations about customs taxation and judicial remedies.


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