\u3cem\u3eBivens\u3c/em\u3e and the \u3cem\u3eAncien Régime\u3c/em\u3e

In its most recent decision narrowly construing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court derided Bivens as the product of an “‘ancien regime,’ ... [in which] the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose.” This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. It first describes and assesses the Court’s reasons for shifting to the nouveau régime in the statutory context. The Essay then explains why the Court’s shift to a nouveau régime for implying damage remedies under federal statutes does not justify a similar shift with respect to constitutional remedies. The Constitution’s omission of specific remedies for violation of the Constitution’s substantive provisions does not reflect the Founders’ belief that such remedies are unnecessary to give efficacy to those provisions, or that those provisions should be of only limited efficacy. The Constitution was adopted against the background of an ongoing system of common-law remedies, and the Founders understood that such remedies would be available to victims of constitutional violations. This ancien régime of common-law remedies for constitutional violations retains considerable relevance to the current status and scope of Bivens remedies. For most of our history, these remedies were regarded as neither federal law nor state law; they were understood to be part of the general common law. When the Supreme Court in Erie Railroad v. Tompkins eliminated this in-­between category of law, the courts without discussion came to regard the common-law remedies as state-law remedies and, in Bivens, the Court recognized a supplemental federal remedy. Congress subsequently preempted state-law remedies against federal officials, preserving only the Bivens remedy. The Court, in turn, has been chipping away at Bivens on the ground that it constitutes improper judicial lawmaking. These developments risk leaving us with a remedial regime far narrower than that which had prevailed for most of our history. This Essay argues that the federal damage remedy recognized in Bivens could have been framed—and should now be understood—as the post-Erie manifestation of the general common-law remedial regime that prevailed since the Founding. The existence of these remedies, as supplemented by Bivens, has until now obviated substantial constitutional questions about the remedies necessary to give efficacy to the constitutional obligations of federal officials. Any further narrowing of Bivens would require the Court to confront these long-dormant questions