W(h)ither Bivens?

Abstract

This essay briefly assesses the Bivens doctrine in light of a recent article by Carlos Vazquez and Steve Vladeck. While we agree with Professors Vazquez and Vladeck on much, we do not share their view that state law rights of action to remedy constitutional torts committed by federal officers survived the enactment of the Westfall Act in 1988. Nonetheless, we remain convinced (as we observed in prior work) that the Westfall Act argues in favor of a more hospitable approach to the judicial recognition of the Bivens action today.

Keywords: constitutional torts, Bivens action, government accountability

JEL Classification: K10, K19, K30, K39