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96 Notre Dame L. Rev. 1893 (2020-2021)
Was Bivens Necessary?

handle is hein.journals/tndl96 and id is 1935 raw text is: WAS BIVENS NECESSARY?

Ann Woolhandler* & Michael G. Collins*
The propriety of Bivens' actions is part of the debate about federal com-
mon law.2 For some judges and scholars, implied actions are a particularly
reprobated form of federal common law.3 Justice Alito's opinion for the
Court in Herndndez v. Mesa treated Bivens and its progeny as products of an
era when the Court routinely inferred 'causes of action' under statutes and
then extended th[e] practice [to] the Constitution.4 Both implied statu-
tory and constitutional actions, he stated, are in tension with the Constitu-
tion's separation of legislative and judicial power.5 And he rejected
arguments that the historical availability of common-law claims against fed-
eral officers in federal courts supported Hernindez's claim, because those
cases preceded Erie Railroad Co. v. Tompkins's admonition that [t] here is no
©   2021 Ann Woolhandler & Michael G. Collins. 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 authors, provides a
citation to the Notre Dame Law Review, and includes this provision in the copyright notice.
* William Minor Lile Professor of Law and Armistead M. Dobie Research Professor of
Law, University of Virginia.
** Joseph M. Hartfield Professor of Law and Joseph W. Dorn Research Professor of
Law, University of Virginia. Our thanks to Richard Fallon, John Harrison, Jonathan Nash,
Caleb Nelson, George Rutherglen, and to participants in the Notre Dame Law Review Bivens
1 See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
2 See, e.g., Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARv. L.
REv. 881, 910-11 (1986) (including both constitutional and statutory implied actions in
her discussion of federal common law).
3 See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring)
(Bivens is a relic of the heady days in which this Court assumed common-law powers to
create causes of action by constitutional implication); Thomas W. Merrill, The Common
Law Powers of Federal Courts, 52 U. CHI. L. REv. 1, 49-50 (1985) (criticizing both statutory
and constitutional implied actions); Martin H. Redish, Federal Common Law, Political Legiti-
macy, and the Interpretive Process: An Institutionalist Perspective, 83 Nw. U. L. REv. 761, 797
(1989) (particularly criticizing implied statutory actions).
4 140 S. Ct. 735, 741 (2020) (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017)).
5 Id. at 741.


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