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Preemption of Bivens Claims: How Clearly Must Congress Speak?
Betsy Grey
70 Washington University Law Quarterly 1087 (1992)
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The thesis of this Article is that "automatic preemption" is inconsistent with both (1) other lines of cases in which the Court ordinarily has declined to find a congressional intent to diminish protection of individual rights and liberties; and (2) the federal-state preemption doctrine that determines whether Congress has intended to displace state common law remedies. Part I of this Article demonstrates that the Court's approach to congressional remedial schemes has changed significantly since Bivens. The early cases emphasized compensating victims of constitutional violations and adopted a presumption in favor of implied remedies, whereas the later cases stressed deference to Congress and adopted a presumption against implied remedies. Part II of the Article investigates whether this change in approach is warranted by the principle that, when filling gaps in federal legislation (i.e., creating federal common law), the Court should exercise caution because it is acting in an area primarily entrusted to Congress. The Article concludes that even assuming Bivens remedies are a creature of federal common law, the Court's role in fashioning Bivens remedies cannot be analogized to the mere gap-filling role that the Court typically plays in federal common law areas that do not involve constitutional rights.

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