State Law, the Westfall Act, and the Nature of the \u3ci\u3eBivens\u3c/i\u3e Question

In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either Bivens or nothing, these courts of appeals chose nothing. The concerns that led these courts to decline to recognize a Bivens action, if truly implicated by these cases, would be reasons to bar the suits from the courts altogether. In contrast, as we explain in this essay, the Bivens question was at least initially understood as whether a federal cause of action should supplement existing state law remedies. Thus, these recent lower-court decisions reveal a fundamental misapprehension about the intended relationship between Bivens and state law. So understood, and as courts have already recognized in other contexts, the very concerns relied upon in these recent national security cases would, if anything, have traditionally supported a federal remedial regime rather than one under state law. As the Supreme Court\u27s recent decision in Minneci v. Pollard illustrates, the principal reason to disfavor recognition of Bivens remedies should be the availability of adequate remedies under state law, and not a desire to immunize the relevant officers from any liability whatsoever. Thus, unlike these recent cases, decisions not to recognize a Bivens remedy should leave the plaintiff free to pursue whatever recourse state law may provide. Although this view of Bivens was generally shared by both its supporters and detractors when it was decided, it has receded from view largely thanks to the Westfall Act, which most courts and commentators today read as preempting all state-law tort claims against federal officers acting within the scope of their employment. In our view, this conclusion reflects a surprising misreading of the Act, which specifically exempts from its preemption provision any claim which is brought for a violation of the Constitution of the United States, presumably including non-federal tort claims grounded on federal constitutional violations. Indeed, given that the legislative history of the Westfall Act suggests that Congress merely sought to preserve the status quo, it is odd to read the statute as dramatically altering the nature and consequences of the Bivens question. Nevertheless, if the Westfall Act does indeed have this effect, we conclude that it should therefore significantly strengthen the argument for recognizing Bivens claims, since the Act takes away the main alternative remedial scheme that previously existed. Indeed, an (incorrect) interpretation of the Westfall Act as preempting non-federal remedies but not authorizing equivalent federal remedies may well raise significant constitutional questions--questions that have thus far been dramatically under-appreciated by the lower courts, but that must be taken seriously going forward. And if courts conclude that, in appropriate cases, the question really should be Bivens or nothing, they must recognize that either answer requires judicial lawmaking--and not just recognition of a federal cause of action

Trend analysis in two standard growth models

This paper analyzes the trend processes characterized by two standard growth models using simple econometrics. The first model is the basic neoclassical growth model that postulates a deterministic trend for output. The second model is the Uzawa-Lucas model that postulates a stochastic trend for output. The aim is to understand how the different trend processes for output assumed by these two standard growth models determine the ability of each model to explain the observed trend processes of other macroeconomic variables such as consumption and investment. The results show that the two models reproduce the output trend process. Moreover, the results show that the basic growth model captures properly the consumption trend process, but fails in characterizing the investment trend process. The reverse is true for the Uzawa-Lucas model.Uzawa-Lucas model, basic neoclassical growth model, trend process, cointegration

Cyclical Features of Uzawa-Lucas Endogenous Growth Model

This paper analyzes the cyclical properties of a generalized version of Uzawa-Lucas endogenous growth model. We study the dynamic features of different cyclical components of this model characterized by a variety of decomposition methods. The decomposition methods considered can be classified in two groups. On the one hand, we consider three statistical filters: the Hodrick-Prescott filter, the Baxter-King filter and Gonzalo-Granger decomposition. On the other hand, we use four model-based decomposition methods. The latter decomposition procedures share the property that the cyclical components obtained by these methods preserve the log-linear approximation of the Euler-equation restrictions imposed by the agent’s intertemporal optimization problem. The paper shows that both model dynamics and model performance substantially vary across decomposition methods. A parallel exercise is carried out with a standard real business cycle model. The results should help researchers to better understand the performance of Uzawa-Lucas model in relation to standard business cycle models under alternative definitions of the business cycle.endogenous growth, decomposition methods, cyclical features

Using synchronization to improve earthquake forecasting in a cellular automaton model

A new forecasting strategy for stochastic systems is introduced. It is inspired by the concept of anticipated synchronization between pairs of chaotic oscillators, recently developed in the area of Dynamical Systems, and by the earthquake forecasting algorithms in which different pattern recognition functions are used for identifying seismic premonitory phenomena. In the new strategy, copies (clones) of the original system (the master) are defined, and they are driven using rules that tend to synchronize them with the master dynamics. The observation of definite patterns in the state of the clones is the signal for connecting an alarm in the original system that efficiently marks the impending occurrence of a catastrophic event. The power of this method is quantitatively illustrated by forecasting the occurrence of characteristic earthquakes in the so-called Minimalist Model.Comment: 4 pages, 3 figure

The nearby Galaxy structure toward the Vela Gum nebula

We report on $UBVI$ photometry and spectroscopy for MK classification purposes carried out in the fields of five open clusters projected against the Vela Gum in the Third Galactic Quadrant of the Galaxy. They are Ruprecht 20, Ruprecht 47, Ruprecht 60, NGC 2660 and NGC 2910. We could improve/confirm the parameters of these objects derived before. The spectroscopic parallax method has been applied to several stars located in the fields of four out of the five clusters to get their distances and reddenings. With this method we found two blue stars in the field of NGC 2910 at distances that make them likely members of Vela OB1 too. Also, projected against the fields of Ruprecht 20 and Ruprecht 47 we have detected other young stars favoring not only the existence of Puppis OB1 and OB2 but conforming a young stellar group at $\sim1$ kpc from the Sun and extending for more than 6 kpc outward the Galaxy. If this is the case, there is a thickening of the thin Galactic disk of more than 300 pc at just 2-3 kpc from the Sun. Ruprecht 60 and NGC 2660 are too old objects that have no physical relation with the associations under discussion. An astonishing result has been the detection in the background of Ruprecht 47 of a young star at the impressive distance of 9.5 kpc from the Sun that could be a member of the innermost part of the Outer Arm. Another far young star in the field of NGC 2660, at near 6.0 kpc, may become a probable member of the Perseus Arm or of the inner part of the Local Arm. The distribution of young clusters and stars onto the Third Galactic Quadrant agrees with recent findings concerning the extension of the Local Arm as revealed by parallaxes of regions of star formation. We show evidences too that added to previous ones found by our group explain the thickening of the thin disk as a combination of flare and warp.Comment: Accepted for publication in New Astronom