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Constitutional Torts and the War on Terror by James E. Pfander

By James E. Pfander

Constitutional Torts and the conflict on Terror examines the judicial reaction to human rights claims bobbing up from the Bush Administration's struggle on terror. regardless of frequent contract that the Administration's software of awesome rendition, lengthy detention, and "enhanced" interrogation used to be torture through one other identify, now not a unmarried federal appellate courtroom has proven an award of damages to the program's sufferers. The silence of the federal courts leaves sufferers with out redress and the constitutional limits on executive motion undefined.

Many of the matches looking redress were in accordance with the landmark 1971 best courtroom selection in Bivens v. Six Unknown Named brokers of the Federal Bureau of Narcotics. This booklet lines the historical past of universal legislations responsibility, the increase of Bivens claims, and the post-Bivens heritage of constitutional tort litigation. After comparing the failure of Bivens litigation coming up from the battle on terror, the ebook considers and rejects the arguments which have been recommend to give an explanation for and justify judicial silence.

The e-book presents the ideally suited court docket with the instruments had to reconsider its Bivens jurisprudence. instead of treating the out of the country nationwide defense context as disabling, sleek federal courts should still take a web page from the 19th century, presume the viability of tort litigation, and continue to the benefits. purely via doing so can the federal courts verify redress for sufferers and stop destiny Administrations from utilizing torture as an device of reliable policy.

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The owners brought a counterclaim against Little for the wrongful seizure of the boat. Although the district court refused to award any damages, citing the suspicious behavior of the Flying Fish and Little’s reasonable suspicion, the intermediate appellate court overturned that ruling and awarded the owner $8,000. Little, in turn, appealed to the Supreme Court, challenging the award of damages. In an opinion remarkable for its candor and for its strict application of maritime tort law, the Court upheld the award of damages.

Story dismissed this general assertion, arguing that the case must be decided not on the basis of general policy considerations but on its specific facts. 35 Perhaps the most intriguing feature of Story’s opinion was its characterization of the nature of the judicial duty. After mildly observing that the parties during oral argument had addressed themselves to considerations more suitable for another department (Congress), Story made this remarkable statement: [T]‌his Court has a plain path of duty marked out for it, and that is, to administer the law as it finds it.

The Court acknowledged that in some circumstances, there might be “special factors” that would counsel against the recognition of such a right to sue.  POST-​B IVENS DEVELOPMENTS IN CONSTITUTIONAL TORT LITIGATION The Bivens doctrine has had its ups and downs since the decision came down in 1971. In the early years, to be sure, the Court took a fairly matter-​ of-​fact approach to the expansion of the Bivens remedy. Thus, the Court has extended Bivens beyond its Fourth Amendment context to encompass suits for violations of the equal protection component of the due process clause, the Eighth Amendment, and the free speech component of the First Amendment.

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