Lincoln Memorial University Law Review Archive


Sean Davis

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n Hernandez v. Mesa, the Supreme Court denied the petitioners the opportunity to seek a Bivens remedy for a constitutional violation by a federal official. The Court appears like it will soon remove Bivens remedies entirely. This article analyzes the case and argues that the Court correctly decided the issue. Current literature decries this decision as ignoring precedent but fails to analyze the framework for deciding Bivens cases fully. The article further adopts the stance of the concurrence to argue that Bivens remedies violate the separation of powers, have failed to achieve their stated purpose, and should be completely abolished. The discussion must then fall to the legislature to consider relevant factors and determine whether to enact laws that will protect people’s rights the way that Bivens was supposed to.

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