Constitutional Torts and the War on Terror

ISBN : 9780190495282

James E. Pfander
280 Pages
156 x 235 mm
Pub date
Feb 2017
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Constitutional Torts and the War on Terror examines the judicial response to human rights claims arising from the Bush Administration's war on terror. Despite widespread agreement that the Administration's program of extraordinary rendition, prolonged detention, and "enhanced" interrogation was torture by another name, not a single federal appellate court has confirmed an award of damages to the program's victims. The silence of the federal courts leaves victims without redress and the constitutional limits on government action undefined. Many of the suits seeking redress have been based on the landmark 1971 Supreme Court decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. This book traces the history of common law accountability, the rise of Bivens claims, and the post-Bivens history of constitutional tort litigation. After evaluating the failure of Bivens litigation arising from the war on terror, the book considers and rejects the arguments that have been put forward to explain and justify judicial silence. The book provides the Supreme Court with the tools needed to rethink its Bivens jurisprudence. Rather than treating the overseas national security context as disabling, modern federal courts should take a page from the nineteenth century, presume the viability of tort litigation, and proceed to the merits. Only by doing so can the federal courts ensure redress for victims and prevent future Administrations from using torture as an instrument of official policy.



Part I: The Common Law Origins of Government Accountability
Chapter One: Government Accountability in the Nineteenth Century
Chapter Two: Bivens and Government Accountability in the Twentieth Century

Part II: Evaluating Human Rights Litigation in War-on-Terror Cases
Chapter Three: Human Rights and War on Terror Litigation
Chapter Four: Evaluating the Effectiveness of Bivens Litigation
Chapter Five: Evaluating Justifications for Judicial Silence

Part III: Reviving the Bivens Action
Chapter Six: Congressional Ratification of the Bivens Action
Chapter Seven: Applying Bivens to Conduct Overseas
Chapter Eight: Overcoming Qualified Immunity
Chapter Nine: Common Law Solutions to Judge-Made Problems

Appendix: An Empirical Assessment of Bivens Claims / by Ross J. Corbett and James E. Pfander
Table of Authorities

About the author: 

James E. Pfander, the Owen L. Coon Professor of Law at the Northwestern Pritzker School of Law, teaches civil procedure, conflicts of law, federal jurisdiction, and constitutional law. A member of the American Law Institute, Pfander has served as chair of the procedure and jurisdiction sections of the Association of American Law Schools. His books and monographs include textbooks in procedure and jurisdiction, a forthcoming third edition of the book, Principles of Federal Jurisdiction (2017), and a book on the structure of the federal judiciary: One Supreme Court: Supremacy, Inferiority and the Judicial Power of the United States (Oxford 2009). He has published dozens of scholarly articles and essays in such journals as the Harvard Law Review, the Yale Law Journal, and the Columbia Law Review.

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