Iqbal, Bivens, and the Role of Judge-Made Law in Constitutional Litigation

This Essay compares the Supreme Court’s use of federal common law in qualified immunity cases with its reluctance to develop federal common law in the recognition of rights under <i>Bivens</i>. As <i>Iqbal</i> confirms, the Court has displayed a remarkable willingness to re-fashion the rules of qualified immunity and interlocutory review without awaiting legislative guidance. Yet the Court has largely declined to extend the <i>Bivens</i> doctrine. After sketching these doctrinal realities and tracing their application in the <i>Iqbal</i> decision, the Essay considers possible justifications. Three factors likely brook large in the Court’s thinking: a concern with the docket implications of expanding access to the <i>Bivens</i> remedy, a perception that the claims in question mostly lack support on the merits, and a perception that Congress has a uniquely important role to play in judging the desirability of expanded access to the federal courts. The Essay evaluates these justifications and explores the puzzles they present for the preservation of a workable body of government accountability law.