Notre Dame Law Review Volume 96 Issue 5 Article 1 5-2021 Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation Against Federal Officers Andrew Kent Professor and John D. Feerick Research Chair, Fordham Law School Follow this and additional works at: https://scholarship.law.nd.edu/ndlr Part of the Constitutional Law Commons, and the Supreme Court of the United States Commons Recommended Citation 96 Notre Dame L. Rev. 1755 (2021) This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact
[email protected]. \\jciprod01\productn\N\NDL\96-5\NDL501.txt unknown Seq: 1 13-MAY-21 10:15 FEDERAL COURTS, PRACTICE & PROCEDURE LESSONS FOR BIVENS AND QUALIFIED IMMUNITY DEBATES FROM NINETEENTH-CENTURY DAMAGES LITIGATION AGAINST FEDERAL OFFICERS 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.