RIP <i>Bivens</i>

For more than fifty years, the Bivens cause of action provided a legal avenue for plaintiffs to seek damages against federal officials for certain constitutional violations. Recent Supreme Court decisions, however, have severely restricted the application of this doctrine. This Essay examines the evolution of the Bivens doctrine from its inception to its current state of effective death and demonstrates empirically that since 2022—when the Court issued its most recent Bivens decision, Egbert v. Boule—lower federal courts have overwhelmingly refrained from extending the implied cause of action beyond its precise original contexts. The death of Bivens leaves the more than 150,000 people incarcerated in the custody of the federal government without a viable remedy for past violations of their constitutional rights.

This absence of a means of redress significantly impacts their ability to hold federal officials accountable for uses of excessive force, inadequate medical care, and otherwise cruel and unusual conditions of confinement. This Essay proposes strategies for addressing the ramifications of the demise of Bivens and underscores the urgent need to implement accountability mechanisms governing federally managed places of incarceration.