Torts Question

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romothesavior
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Torts Question

Postby romothesavior » Sun Dec 05, 2010 3:41 pm

Anybody read Bivens? Our prof just calls that brand of tort claims a "Bivens cause of action." I know what the cause of action is for and why you would raise it, but can anybody tell me what the actual elements are? I am trying to put it in my outline without writing out a long paragraph saying what it is.

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romothesavior
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Re: Torts Question

Postby romothesavior » Sun Dec 05, 2010 5:06 pm

Anybody? Anyone at all? Buehler? Buehler?

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kalvano
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Re: Torts Question

Postby kalvano » Sun Dec 05, 2010 5:29 pm

I have no idea what Bivens is, but a Google-fu search seems to suggest it is a cause of action arising when Federal employees act with grievous and malicious indifference in a manner not covered by statute, but in violation of the Constitution and a Bivens Action allows monetary damages.

I could be way, way off though. We never looked at that case.

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romothesavior
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Re: Torts Question

Postby romothesavior » Sun Dec 05, 2010 5:40 pm

kalvano wrote:I have no idea what Bivens is, but a Google-fu search seems to suggest it is a cause of action arising when Federal employees act with grievous and malicious indifference in a manner not covered by statute, but in violation of the Constitution and a Bivens Action allows monetary damages.

I could be way, way off though. We never looked at that case.

No no, you're right. I know the basic definition of it, but I want the elements. We read a couple of cases on it that sorta convoluted my idea of what the elements are. I want them to be in...

So and so is liable for damages under a Bivens claim when
1) yadda yadda yadda
2) yadda yadda yadda
3) yadda yadda yadda

...format.

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kalvano
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Re: Torts Question

Postby kalvano » Sun Dec 05, 2010 5:49 pm

A Bivens Action arise when

1) A Federal employee acts with
2) Grievous and malicious indifference in violating
3) A Constitutional right
4) That is not otherwise protected by statute


?


I don't know, working without a firm basis here.

zizou
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Re: Torts Question

Postby zizou » Sun Dec 05, 2010 11:32 pm

Bivens is the analogue to 1983 for when a federal actor deprives someone of their constitutional rights (generally, I'm sure there might be a few differences but if this is a first year torts class it probably doesn't matter). Again, I don't know if this is a major part of your torts class, but its basically a species of tort liability with a state action requirement that assigns liability for constitutional violations. Your usual torts concerns like causation, damages etc. may come up, but sometimes they are treated differently than the common law (mens rea requirements in some circumstances, the assertion of qualified or absolute immunity as a defense, custom/policy liability standard for municipalities instead of the application of respondeat superior, etc.)




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