Private Law Theory

ABSTRACT
This Essay honoring Professor Shapo tackles a growing problem in constitutional litigation: the problem of how to litigate clandestine federal government policies. Justice Kennedy’s majority opinion in Ziglar v Abbasi, denying any right to sue for damages when contesting detention policy, echoed an increasingly prevalent view that the Bivens action does not apply to policy disputes. Whatever one’s view of the Court’s turn against Bivens litigation as a general matter, one might doubt the wisdom of this new hostility to the use of Bivens to evaluate federal government policies. This Essay gives voice to such doubts in one specific context: While litigants can test the constitutionality of most federal action by using habeas, injunctive, or APA forms of action, clandestine government policies evade review through such channels. Rather than placing such policy-testing Bivens litigation beyond the reach of federal courts, the Supreme Court should recognize its essential role in clarifying constitutional boundaries.

Pfander, James E, Constitutional Torts and the Problem of Government Policy: An Essay for Marshall Shapo (January 1, 2020), 115 Northwestern University Law Review Online 240 (2020); Northwestern Public Law Research Paper No. 20-31.