Congressional Will and the Role of the Executive in \u3cem\u3eBivens\u3c/em\u3e Actions: What Is Special about Special Factors?

Bivens v. Six Unknown Named Agents recognized a damages remedy when federal agents violate an individual’s constitutional rights. The Bivens case law denies that remedy when “special factors” mark a case, but never defines what constitutes a special factor. Through a detailed review of doctrine at both the Supreme Court and the federal Circuit court level, this article shows that the special factors analysis has evolved to maintain the proper balance of power between the judiciary and the legislature. Courts deciding whether to grant a constitutional damages remedy must probe the will of Congress to determine whether existing laws preclude a Bivens remedy. Providing a principled, coherent approach to the tangled history of special factors, my analysis demonstrates that courts err when they find special factors in the preferences or prerogatives of the executive

Response: Catch-all Doctrinalism and Judicial Desire

This brief piece responds to Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 University of Pennsylvania Law Review 509 (2013). Vázquez and Vladeck\u27s provocative article suggests that courts dismiss Bivens claims because judges believe that “extending” Bivens into any “new context” instantiates disfavored judicial lawmaking. Focusing on Bivens’s peculiar place in federalism and federal law, Vázquez and Vladeck demonstrate that the logic of courts’ own legal interpretations suggests expanding Bivens remedies, yet courts paradoxically choose to narrow them instead. Why, and how, does that happen? Courts claim to reject Bivens actions out of passive virtue and institutional competence concerns. Vázquez and Vladeck focus on the former. But neither justification fully explains the situation. Examining how courts justify their Bivens dismissals — through a results-oriented conflation of doctrines — reveals that the outcome drives the reasoning. That outcome is to insulate the Executive from those individuals it harms. Evaluating the relevant prudential concerns behind the goal of executive insulation — and their relation to institutional realities — may tell us more about Bivens than the Westfall Act can

Differentiating Deference

When an administrative agency’s interpretation of an ambiguous statutory term is challenged in court, the Chevron doctrine instructs judges to evaluate whether it is reasonable. But how does a court know reasonableness when it sees it? Here, I first show that reasonableness review is more complex than it might seem. Contrary to common images, for instance, courts do not determine a range of reasonable interpretations; and that is a good thing, because they are not competent to do so. Moreover, because traditional statutory interpretation approaches presume the existence of one correct meaning for a given word, they are not well suited to multivalent terms. But the Chevron doctrine assumes that multivalence permeates regulatory statutes. So reasonableness review is both complicated and undertheorized. I suggest that reasonableness review lacks a standard in part because the doctrine misapprehends how meaning is constructed, treating all meanings as arising in the same way. Decades of research on communicative practices (which this article is the first to use in this context) show that this is wrong: different kinds of terms gain meaning in different ways. In the context of regulatory statutes, it is helpful to see statutory terms as falling on a continuum: from more law-based language, whose meaning rests on legal texts, to more world-based language, which depends on understandings that are exogenous to legal process. Recognizing that language falls along this spectrum should push courts to differentiate the kind of deference they give agency interpretations, making world-based legal terms presumptively ambiguous and thus focusing attention away from Chevron’s first step to its second. Further, reasonableness review tends to assume that agencies always act to the full extent of their potential competence. I distinguish the structural abilities an agency has from the extent to which it has utilized those abilities in a given case. Recognizing that this distinction pervades agency practice should push reviewing courts away from the substance of an agency’s interpretation to focus on its interpretive process. This shift would play to courts’ strengths and help cohere statutory interpretation review with arbitrary and capricious review, while maintaining the unique characteristics of each

Before Interpretation

What a statutory interpretation opinion interprets may seem given. It is not: this article shows how judges select what text to interpret. That text may seem to carry with it one of a limited range of contexts. It does not: this article shows how judges draw on a variety of factors to situate the texts they interpret in unique, case-specific contexts. Selecting and situating form the infrastructure of interpretation. Their creativity and choice provide the basis on which assertions of determinate meaning are made. That process reveals how contestation and indeterminacy permeate legal interpretation even as judicial opinions seek to fix and finalize meaning. How does an opinion explain why it selects the text it does? How does it justify situating that text in some factors but not others? How does it substantiate the way it characterizes the factors it chooses? Asking how opinions address their selecting and situating choices reveals how unevenly they fulfill their basic obligation of giving reasons for their conclusions. Recognizing selection and situation opens up other lines of analytic and normative inquiry as well. In addition, my approach highlights the limitations of prominent interpretive theories like textualism and purposivism. These theories do not recognize selection and drastically oversimplify situation, leaving judges with little guidance about the very choices on which interpretation is based. This failure may not be too surprising: these theories prescribe what interpreters ought to do, rather than explain what they, in fact, do. In contrast, my contribution helps us understand the practices through which legal actors justify interpretations, claim legitimacy, and set the terms of valid legal argument

What Counts as Data?

We live in an age of information. But whether information counts as data depends on the questions we put to it. The same bit of information can constitute important data for some questions, but be irrelevant to others. And even when relevant, the same bit of data can speak to one aspect of our question while having little to say about another. Knowing what counts as data, and what it is data of, makes or breaks a data-driven approach. Yet that need for clarity sometimes gets ignored or assumed away. In this essay, I examine what counts as data in legal corpus linguistics, a method of interpretation that uses large datasets of actual language use to give empirical heft to claims about how “ordinary people” would use or understand legal terminology—claims that pervade legal interpretation. Unlike corpus linguistics in the field of linguistics, however, legal corpus linguistic analysis tends not to articulate or examine just what its datasets can reveal. Practitioners are thus liable to make large claims on the basis of materials that don’t support them—materials that provide information, but do not constitute data that answers the questions legal corpus linguistics poses. This essay undertakes a more careful parsing of what the corpora preferred by legal corpus linguistics can, and cannot, reveal. Although I conclude that legal corpus linguistics currently faces a mismatch between information and aspiration, I also suggest areas of legal work where it can be of real use

The Songs of Other Birds

Published as Chapter 14 in Insiders, Outsiders, Injuries, and Law: Revisiting The Oven Bird’s Song, Mary Nell Trautner, ed.. In this essay, written for a volume that re-engages with David Engel\u27s classic article, The Oven Bird\u27s Song, I consider how we decide how to situate what we encounter in our research. Comparing the findings of my own research in Taipei with Engel\u27s work in Thailand and America, I ask how we can decide to give different interpretations of seemingly similar social phenomena -- specifically, our interlocutors\u27 evident distaste for invoking the law. Although many of my interlocutors in Taiwan expressed dismay at the disorder of their nation, no one ever suggested that law would be a good way to solve the problem. The community activists I studied did not see law as a useful tool. I studied government administrators and community activists. For both, the invocation of law was at best a bit of icing on a cake of otherwise appropriate social belonging. At worst, it could signal breakdown: a failure of social engagement; of social norms; of other, more legitimate, values. This devaluation of legality among my interlocutors is certainly reminiscent of the devaluation of litigation in Sander County (Engel 1984) and in northern Thailand (Engel 2006). Yet seen within its sociohistorical context, it highlights important differences as well. These differences, in turn, highlight the way that understanding the roles of law in society depends heavily on historically informed, culturally embedded, and locally specific research.https://digitalcommons.law.buffalo.edu/book_sections/1231/thumbnail.jp

Democratizing Interpretation

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is, I argue, with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact each funnels power right back to the judge. The outsourcing approaches I describe show a disconnect between the questions judges pose and the methods by which they seek answers. That disconnect allows judges to avoid normative and empirical decisions central to interpretation. Rather than taking a stand on which community’s speech matters in a democracy, judges pick quotations they like, or turn to empirical techniques like corpus linguistics without acknowledging the underlying decisions they require. Rather than identifying whom statutes address and considering their attitudes, judges speak for an audience they do not listen to. Rather than articulating what purposes canons serve, judges choose a rule that appeals. Outsourcing seems to alleviate countermajoritarian difficulties by democratizing interpretation and yielding some interpretive certainty. But our common-law adjudication system empowers judges to maintain indeterminacy, creating moments of provisional closure always subject to reinterpretation. Rather than evaluating how well judges resist the authority our system gives them, we should ask how well they justify the way they wield it. Really democratizing interpretation, I argue, involves both considering what methods can yield answers to judges’ questions, and recognizing the limitations of any method. It also means acknolwedging that interpretation remains presumptively open to contestation. Such openness and humility is implicit in the requirement of judicial reason-giving. And it democratizes interpretation more than outsourcing can

Not Quite Shamans: Spirit Worlds and Political Lives in Northern Mongolia . By Morten Axel Petersen . Ithaca, NY : Cornell University Press . Pp. xii + 272. Cloth, 69.95;paper,69.95; paper, 28.95.

Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/93748/1/rsr1634.pd