Professor Andrew Kent’s 2014 article “Are Damages Different?: Bivens and National Security” was cited by Supreme Court Justice Anthony Kennedy in the majority opinion in Ziglar v. Abbasi.
To understand Bivens and the two other cases implying a damages remedy under the Constitution, it is necessary to understand the prevailing law when they were decided. In the mid-20th century, the Court followed a different approach to recognizing implied causes of action than it follows now. During this “ancien regime,” Alexander v. Sandoval, 532 U. S. 275, 287 (2001), the Court assumed it to be a proper judicial function to “provide such remedies as are necessary to make effective” a statute’s purpose, J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964). Thus, as a routine matter with respect to statutes, the Court would imply causes of action not explicit in the statutory text itself. See, e.g., id., at 430–432; Allen v. State Bd. of Elections, 393 U. S. 544, 557 (1969); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 239 (1969) (“The existence of a statutory right implies the existence of all necessary and appropriate remedies”).
These statutory decisions were in place when Bivens recognized an implied cause of action to remedy a constitutional violation. Against that background, the Bivens decision held that courts must “adjust their remedies so as to grant the necessary relief ” when “federally protected rights have been invaded.” 403 U. S., at 392 (quoting Bell, supra, at 678); see also 403 U. S., at 402 (Harlan, J., concurring) (discussing cases recognizing implied causes of action under federal statutes). In light of this interpretive framework, there was a possibility that “the Court would keep expanding Bivens until it became the substantial equivalent of 42 U. S. C. §1983.” Kent, Are Damages Different?: Bivens and National Security, 87 S. Cal. L. Rev. 1123, 1139–1140 (2014).
