This paper compares the institutions and law of government accountability in England, France, and Romania. It also examines the manner in which each country handles certain representative instances of litigation: applications for judicial review; litigation of government contract disputes, non-commercial government torts; and takings claims. Finally, it will explore the way in which two supra-national institutions, the European Court of Justice and the European Court of Human Rights, have influenced government accountability in each of the three countries. The choice of England, France, and Romania gives the flavor of such developments in three distinct legal orders. England and France represent the approaches of the common and civil law, respectively, and also illustrate dualist and monist approaches to the enforcement of international obligations. The review of Romanian law offers one perspective on the law of government accountability in a former Communist bloc country as it sought entry into the European Union.

In this essay, we take up a forgotten element of the Supreme Court's decision in Harlow v. Fitzgerald to confer qualified immunity on federal and state officials. Harlow generally shielded government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." But Harlow extended its immunity shield only to officials "performing discretionary functions," thereby offering protection only to what it described as "high officials" engaged in policy formation. That formulation left officials performing ministerial functions unprotected by qualified immunity, just as they were in the nineteenth century. Yet over time, the federal courts have extended the Harlow immunity shield to all government officials, without observing the ministerial-discretionary distinction. This essay explores what we have lost through this unthinking extension of qualified immunity and how the courts might operationalize a restored model of full ministerial accountability.

This Essay honoring Professor Shapo tackles a growing problem in constitutional litigation: the problem of how to litigate clandestine federal government policies. Justice Kennedy’s majority opinion in Ziglar v. Abbasi, denying any right to sue for damages when contesting detention policy, echoed an increasingly prevalent view that the Bivens action does not apply to policy disputes. Whatever one’s view of the Court’s turn against Bivens litigation as a general matter, one might doubt the wisdom of this new hostility to the use of Bivens to evaluate federal government policies. This Essay gives voice to such doubts in one specific context: While litigants can test the constitutionality of most federal action by using habeas, injunctive, or APA forms of action, clandestine government policies evade review through such channels. Rather than placing such policy-testing Bivens litigation beyond the reach of federal courts, the Supreme Court should recognize its essential role in clarifying constitutional boundaries.

This Essay compares the Supreme Court’s use of federal common law in qualified immunity cases with its reluctance to develop federal common law in the recognition of rights under Bivens. As Iqbal confirms, the Court has displayed a remarkable willingness to re-fashion the rules of qualified immunity and interlocutory review without awaiting legislative guidance. Yet the Court has largely declined to extend the Bivens doctrine. After sketching these doctrinal realities and tracing their application in the Iqbal decision, the Essay considers possible justifications. Three factors likely brook large in the Court’s thinking: a concern with the docket implications of expanding access to the Bivens remedy, a perception that the claims in question mostly lack support on the merits, and a perception that Congress has a uniquely important role to play in judging the desirability of expanded access to the federal courts. The Essay evaluates these justifications and explores the puzzles they present for the preservation of a workable body of government accountability law.

Responding to sharp debates over the proper reading of 28 U.S.C. § 1367, this Article develops a sympathetic textualist interpretation that would preserve complete diversity and a measure of continuity with the past. Part I reviews the origins of the supplemental jurisdiction statute and sketches its controversial academic and judicial reception. Part II of the Article presents a more sympathetic alternative to the standard account of the text. Building on the important jurisdictional distinction between federal question cases and diverse-party controversies, and the way that distinction informed the evolution of the judge-made doctrines of pendent and ancillary jurisdiction, the Article proposes and defends an interpretation of section 1367(a) that leaves the federal courts free to apply the tenets of diversity jurisdiction as they continued to evolve before and after the statute's adoption. Part III suggests that the Article's contrast between sympathetic and unsympathetic textualism may shed some light on current debates over the proper role of the federal courts in the interpretation of jurisdictional statutes.

of the debate over the constitutionality of universal or nonparty protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of nonparties. As a result, the story of nonparty protective relief has not yet been fully told. This Article offers a more complete story, highlighting proceedings in which federal courts issued judgments that settled a matter once and for all. Some familiar examples include proceedings in admiralty and naturalization judgments, where a decree was understood to operate on those who did not appear in the litigation. We focus here on the power of federal courts, acting under the patent laws of the 1790s, to entertain individual suits to cancel or annul a patent for all purposes. Such cancellation proceedings, based on a practice that developed in England on the writ of scire facias, were understood to operate as a general matter and could confer benefits on artisans and manufacturers who did not appear in the litigation. Nonparty protective patent cancellation relief was later administered by federal courts of equity and remains a part of the federal judicial role today. While the Supreme Court in Trump v. CASA, Inc. found that federal courts lacked statutory power to issue universal injunctions, it did not directly address the constitutional question. We show in a brief concluding section that early examples of nonparty protection make it challenging to argue on historical grounds that Article III of the Constitution bars federal courts from granting such relief today. We therefore suggest that assessments of nonparty protective relief focus on deciding whether lower federal courts have been authorized to decide legal issues once and for all. Such a focus helps distinguish free-floating universal injunctions from those based on such sources of legislative authority as the set-aside power conferred in 706 of the Administrative Procedure Act.

Throughout the nineteenth century and much of the twentieth, remedies for federal government misconduct were often predicated on rights to sue conferred by such common law forms as trespass, assumpsit, and ejectment. But Erie, the law-equity merger, and other factors pushed those common law forms to the side. In 1946, Congress adopted the Federal Tort Claims Act (FTCA), imposing vicarious liability on the federal government for many of the torts of its officers and employees. Then, in the 1970 s, the Supreme Court recognized federal common law rights to sue federal officers for certain constitutional torts under the Bivens doctrine. Yet these expanded remedies, available in theory, often fail in practice. For example, in Hern & aacute;ndez v. Mesa (2020) the Court refused to recognize a right to sue under the Bivens doctrine while, at the same time, assuming that the FTCA barred the victim's family from pursuing tort-based redress at common law for a cross-border shooting. Egbert v. Boule (2022) confirms that the Bivens doctrine, lacking a textual foundation, has no growing power. Invoking the history of nineteenth-century tort-based redress and channeling the textualism of Egbert v. Boule, this Article argues that current law, correctly interpreted, permits victims to pursue a wide range of tort claims against the federal government and its employees at common law. The Article first shows the many ways common law modes of redress can contribute to a remedial system for government wrongdoing that is now crowded with statutes and constitutional remedies. Turning to the text of the FTCA, the Article demonstrates that Congress preserved the right of individuals to sue in tort, either by naming the government in claims within its vicarious liability or by naming the responsible officer for tort-based wrongs to which the FTCA does not extend. A concluding section sketches the many ways tort litigation, brought against the official at common law, can supplement the current system of government accountability as the sun sets on the Bivens doctrine.

The Supreme Court has deliberately framed the law of constitutional torts as a balance between assuring redress for victims, deterring misconduct, and maintaining effective government services. Yet as the Supreme Court has shaped the contours of litigation against state and local actors (under 42 USC § 1983) and federal actors (under the Bivens doctrine), it has studiously ignored a growing body of empirical scholarship examining the ways law interacts with the behavior of police officers and other government actors. This review documents the Supreme Court's reliance on what could be charitably described as judicial intuition and its indifference to empirical evidence about such central questions as the volume and success of constitutional tort claims, the efficacy of qualified immunity, and the way the rules of tort liability shape the conduct of government officials.

The sequence of events that prompted the debate over the adoption and interpretation of 28 U.S.C. § 1367 – the supplemental jurisdiction statute – provides an entry point for this Essay on jurisdictional law reform in honor of Judge Weis. Judges and law professors initiated the process of reform through creative reinterpretation, laying the foundation for pendent and ancillary jurisdiction. A reluctance to sanction that process of judicial interpretation led the textualist Court in Finley to call a halt to any further expansions. Congress responded, with the encouragement of the Federal Courts Study Committee (chaired by Judge Weis), by supplying the textual predicate that the Court identified as missing in Finley. Eventually, the Court in Exxon Mobil took up the task of interpreting the ambiguities in that statute and further extended the law reform project. The Essay concludes with a reflection on whether judges do their law reform work more effectively in the guise of legislative drafters or in the guise of law interpreters.

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As remedies scholars continue to reflect on the consequences of the 1938 merger of law and equity into one civil action, it may be worth pondering a second merger. In 1990, responding to a Supreme Court opinion that highlighted the absence of such authority, Congress adopted a statutory framework for the exercise of judge-made doctrines of pendent and ancillary jurisdiction. In the statute, 28 U.S.C. 1367, Congress merged the two doctrines, lumping them together in a provision for the exercise of supplemental jurisdiction over claims that bear an appropriate relationship to civil actions within the district courts' original jurisdiction. This Essay, prepared for a symposium on federal equity, explores some consequences of that jurisdictional merger. We focus on cases in which federal courts have declined to exercise traditional forms of ancillary jurisdiction after concluding that those forms threatened to undermine the complete diversity rule. Thus, in Griffin v. Lee, a 2010 decision, the Fifth Circuit refused to allow the district court to exercise ancillary jurisdiction over a withdrawing lawyer's claim for attorney's fees. Although misguided textualism helped, the mistaken decision in Griffin owes much to the court's failure to appreciate the distinctively equitable underpinnings of ancillary jurisdiction. Generalizing from its critique of Griffin, the Essay argues that federal courts should attend to the history of ancillary jurisdiction in evaluating the threat to diversity-based jurisdiction under the supplemental jurisdiction statute. For much of the nation's history, ancillary jurisdiction extended to the related claims of nondiverse claimants (like those of the lawyer in Griffin) that arose in the course of litigation. Reclaiming these equitable traditions will enable courts to return to the discretionary framework Congress provided as the measure of supplemental jurisdiction.

Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of action for constitutional violations, improved local budgeting and indemnification practices, and new litigation strategies that encourage government attorneys charged with defending civil rights litigation to take better account of the significant public interest in enforcing constitutional norms. Rather than await federal reforms that may never come, the many state and local officials who have advocated for change can promptly translate their professed commitments into law and policy.

This Essay reexamines the question whether the Constitution empowered Congress to ban slavery in the territories. We explore that question by tracking two proposed additions to the Constitution, one that would empower Congress to ban the migration and importation of enslaved persons to all new states and territories and one that would oblige Congress to admit new states on an equal footing with the old. We show that the Federalists supported and the Convention adopted the migration provision, enabling Congress to restrict slavery to the states "now existing." But the Federalists opposed and the Convention rejected the equal footing doctrine. Over time, things changed. In debates over the admission of Missouri to the Union as a slave state, Southerners offered a popular, if implausible, reinterpretation of the "Now Existing Caveat" to the Migration and Importation Provision that rendered it practically irrelevant to the expansion of slavery. What is more, Southerners pressed to extend a judge-made equal footing doctrine, urging that new states were entitled to legalize the ownership of people just as the old states were. Chief Justice Roger Taney wrote the Southern interpretation into the Constitution in the Dred Scott v. Sandford opinion, ignoring the Now Existing Caveat and embracing the equal footing doctrine as a matter of constitutional compulsion. While Dred Scott has not survived, the equal footing doctrine now undergirds the idea of equal state sovereignty in such U.S. Supreme Court decisions as Shelby County v. Holder. Meanwhile, the Federalist constitutional settlement has all but disappeared from view.

This brief chapter explores the origins of non-contentious or voluntary jurisdiction, tracing its appearance in Roman law and its incorporation into the practice of civil law systems of Europe. After examining uncontested adjudication in England, this chapter tracks its arrival in British North America. Building on English forms that were themselves rooted in civil law, colonial courts in North America used uncontested process to handle such familiar matters as the probate of decedents’ estates and the exercise of equity and admiralty jurisdiction.

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special-factors analysis when the claim arises in a context. In Abbasi itself, the Court found the context of the plaintiffs’ claims to be new because, in the Court's view, they challenged large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate. This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an exemption for policy challenges can claim no support in the Court’s own development of the Bivens doctrine, or in the principles that animate the Court’s broader approach to government accountability law. Equally troubling, the policy exemption has already caused substantial confusion among lower courts. Judging that it lacks a legitimate predicate and defies coherent application, we conclude that the Court should pursue no further its hostility to policy-based Bivens claims.

This chapter examines the way nineteenth-century jurists defined the words “cases” and “controversies” in Article III of the U.S. Constitution. It shows that federal courts agreed to hear uncontested applications to claim rights under federal law as “cases” under Article III. But the same courts refused to hear matters governed by state law unless they arose between opposing parties as “controversies” within Article III. This distinction between cases and controversies meant that a claim of right by a petitioner, such as that in a naturalization petition, would qualify as a case, even though the plaintiff did not join an adverse party from whom the plaintiff sought redress.