Bivens’ Lasting Legacy

<div> <i>Bivens</i> liability, we are told by the Supreme Court and federal courts scholars, is dying, if it has not passed away already. The evidence is all around us, with the most recent illustration the Supreme Court’s summary reversal, without dissent, on June 30, 2025, in <i>Goldey v. Fields</i>, where the Court reinforced the lessons from the last 45 years of jurisprudence by rejecting an Eighth Amendment claim for excessive force brought by an incarcerated person against federal corrections officers. In this Article, I argue against the conventional wisdom and for the proposition that Bivens’ legacy lives on, in an unexpected place: liability against local governments under 42 U.S.C. § 1983. </div> <div> <br> </div> <div> In particular, this Article demonstrates that when the Court announced <i>Monell v. Department of Social Services of New York</i>, its seminal decision allowing municipalities to be sued for constitutional violations under Section 1983, it did so in the shadow of its earlier decision in <i>Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics</i>, which recognized a damages action for Fourth Amendment violations by federal officials. Today, <i>Monell</i> and <i>Bivens</i> are marked more by their differences than their similarities. Most critically, <i>Bivens</i> hangs by a thread while <i>Monell</i> retains its vitality. Using newly examined Supreme Court and lower court decisions and archival material from the Justices’ private papers, this Article demonstrates that they had common origins. Indeed, it is fair to say that <i>Monell</i> is in some ways the most significant legacy of the Court’s <i>Bivens</i> jurisprudence. </div> <div> <br> </div> <div> These insights are not only of historical interest. They are also salient to a longstanding debate about whether and how to amend Section 1983 to provide for vicarious liability against municipalities. For decades, scholars and practitioners have argued that Congress should strengthen municipal accountability by creating respondeat superior liability under Section 1983. As this Article&nbsp;<span>shows, advocates for such reform can learn important lessons from the history excavated herein.</span> </div>