Part I of this note traces the history of the Bivens cause of action and analyzes the original “special factors” that concerned the Supreme Court. Part I also outlines the purpose behind implying a Bivens cause of action for plaintiffs bringing constitutional claims. Part II includes the same analysis of the qualified immunity defense, both to its history and purpose. Part III demonstrates how the Supreme Court has incorporated the concerns addressed by qualified immunity into the “special factors” analysis, rather than acknowledging the mitigating nature of immunity defenses when examining if any “special factors” exist. Finally, Part IV argues for the restoration of the original, more limited “special factors” jurisprudence—and an abandonment of the incorporation of qualified immunity concerns—to facilitate the vindication of constitutional rights.
Amelia G. Collins,
The Bivens "Special Factors" and Qualified Immunity: Duplicative Barriers to the Vindication of Constitutional Rights,
U. Rich. L. Rev.
Available at: https://scholarship.richmond.edu/lawreview/vol55/iss4/1
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