Background
DEA agents arrested and searched the home of Bivens without a warrant. He was later released without being charged for a crime. Bivens sued for violation of his Fourth Amendment right against unreasonable search and seizure. As Bivens was not being charged with any crime, the exlusionary rule did not apply. Bivens' case was based solely on the idea that violation of a right by the government is grounds for legal redress.
The court found that there is an implied cause of action for violation of a constitutional right.
Implied Cause of Action
Under United States law, a cause of action is a set of circumstances which allows an individual to seek legal redress in a court of law. Typically, positive law (written law and precedent) specify the criteria which allow an individual to bring forth a lawsuit. That is, causes of action are enumerated in positive law. A implied cause of action, then, is a cause of action not specified in positive law. Wikipedia states that implied causes of action are:
[Judicial determinations] that a law that creates rights also allows private parties to bring a lawsuit, even though no such remedy is explicitly provided for in the law.
The Analysis
Bivens had at least two causes of action in the existing positive law. He could have sued for damages, or filed an injunction. To me, then, the most interesting aspect of this decision is the assertion of an implied cause of action. This suggests the Supreme Court found the existing two causes of action, and thus the two existing legal remedies, somehow deficient in this particular case. Justice Harlan's reasoning for this third, implied, cause of action was that Tort law should not be the remedy for violation of a Constitutional right. Phrased another way, the Supreme Court decided a Constitutional right is 'too special' to be remedied with common Tort law.
Justice Harlan himself wrote that:
[T]he question appears to be how Fourth Amendment interests rank on a scale of social values compared with, for example, the interests of stockholders defrauded by misleading proxies . . . [In choosing whether to remand the case to Federal tort law] we implicitly express a value judgment on the comparative importance of classes of legally protected interests.
Legal Positivism
In my opinion, the Court is following a very Dworkin-ian philosophy. As suggested by Justice Harlan's opinion, the Bill of Rights serves the role of both a law and a principle. Thus care must be taken not to cheapen such an important principle by associating it with 'pedestrian' Tort laws. To the Court, the "implicit value judgment" of using the remedy is of utmost concern. All this is in direct conflict with the ideas of legal positivism. Legal positivism does not allow judgments about the relative importance of different laws (unless, of course, there was a law saying that certain laws are more important than others). Of course, a legal realist could say that the Court's decision was merely a reflection of the tendency of Supreme Court Justices to hold strong emotional associations with what they feel are particularly important laws.
So what do you guys think? Is it the special position of the Bill of Rights, the sentimentality of a bunch of old judges, or something else entirely?
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