Taking Fiction Seriously: The Strange Results of Public Officials\u27 Individual Liability Under Bivens

This article argues that the Supreme Court\u27s decision to place liability on federal officials in their personal capacity--what Professors Fallon and Meltzer call Bivens\u27s genius --is in fact its Achilles\u27 heel. Individual liability under Bivens has become fictional because it is the government, and not the individual personally, that is in fact liable in Bivens cases. The individual liability fiction has ended up helping the federal government more than the Bivens plaintiff in various ways, and has contributed to the low rate of recovery under Bivens. It may seem odd to attribute the low rate of Bivens recoveries to the individual liability fiction, given that fictional reliance on suits against government officials as a method of enforcing constitutional rights has an established and successful pedigree in Ex Parte Young. The Bivens fiction, however, differs significantly from the fiction on which Young relies, and it is that important distinction that has created the opportunity for Bivens to benefit the government at the expense of constitutional tort victims and, ultimately, the credibility of the legal system