Mark Hager
I am an American writer, lawyer and former law professor living in Sri Lanka with my family. I have published books and articles on employment, tort, and constitutional law, on policy issues, on religion and on wildlife. I have litigated for injured plaintiffs against businesses, governments and doctors and have worked and consulted with humanitarian organizations.
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!) the awkwardness of conceptualizing harassment as discrimination in typical cases; 2) suits directed at culprits properly channel sanctions and deterrence; 3) employer liability entails dubious attribution of wrongful behavior from perpetrator to firm; 4) employer anti-harrasment duty is burdensome and generates negative side effects.
The news comes straight from the Supreme Court’s ruling in Correctional Services Corp. v. Malesko , holding that Bivens suits cannot be brought against private prisons. This may leave federal convicts in private prisons without effective remedy against constitutional abuses and may let government nullify constitutional protections by placing convicts there. This article criticizes Malesko, contending that it errs in several unique ways while also compounding errors from earlier Bivens jurisprudence. It also defends a theory of Bivens jurisprudence -- joint authority between Congress and the courts over constitutional abuse damages -- that makes constitutional sense of Bivens itself, facilitates both comprehension and critique of Bivens progeny, and further highlights the errors of Malesko. I hope to forestall further degeneration in both Bivens analysis and constitutional protection for federal prisoners: specifically, a future ruling that Bivens suits also cannot lie against private prison guards and officials. Under such a ruling — no mean likelihood, given Malesko — the federal government could freely shed burdens by shipping convicts into a private sector archipelago where the Constitution sounds as mere rumor.