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Margulies on Bivens & the War on Terror

By Lawrence Solum

Peter Margulies (Roger Williams University School of Law) has posted Judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law on SSRN. Here is the abstract:

Recent decisions on Bivens claims in the war on terror have defined extremes of deference or intervention. Cases like Iqbal and Arar display a categorical deference that rewards officials? myopia. The Arar court painted officials as choosing between two stark scenarios: rendering a suspected terrorist to Syria or letting him board a plane to complete his supposed plot. On the other hand, courts in Padilla v. Yoo and al-Kidd v. Ashcroft manifested an equally categorical interventionism. Yoo and al-Kidd mangled the doctrine of qualified immunity, which the Supreme Court crafted to insulate officials from judges? hindsight bias.

To break with the categorical cast of both deferential and interventionist decisions, this Article proposes an innovation-eliciting approach. Inspired by remedies for cognitive bias and regulatory failure, it gives officials a stake in developing alternatives to both overreaching and abdication. Officials who can demonstrate they have implemented alternatives in other contexts that are both proportional and proximate in time to the instant case buy flexibility and dismissal of the lawsuit before the qualified immunity phase. By leveraging officials? experience and expertise, the innovation-eliciting approach tames the ?pendular swings? in policy that Justice Kennedy in Boumediene viewed as undermining both liberty and security.

Full post as published by Legal Theory Blog on March 11, 2010 (boomark / email).