Sean Davis, “Laying It on the Line: How Hernandez v. Mesa Nixed Bivens for a Transnational Homicide” -- Lincoln Memorial University Law Review (forthcoming)
The Lincoln Memorial University Law Review has accepted Pepperdine Caruso School of Law third-year student Sean Davis's article, "Laying It on the Line: How Hernandez v. Mesa Nixed Bivens for a Transnational Homicide," for publication (forthcoming, 2021).
In "Laying It on the Line," Sean examines the effects of the Supreme Court's decision in Hernandez v. Mesa on Bivens, the legal theory authorizing remedies against federal officials. In Hernandez, the Court held that Bivens did not authorize the parents of a Mexican teenager killed by a United States Border Patrol agent to seek a remedy for the alleged violation of the teenager's constitutional rights. In reaching this decision, the Court appears to be setting Bivens up to be done away with in the future. In the article, Sean analyzes the legal and practical effects of the holding and of Bivens's elimination, concluding that Bivens should be overturned as a violation of the separation of powers. The focus then shifts to Congress, whose responsibility it is to provide these remedies.
Sean, an Associate Editor of the Pepperdine Law Review, Volume XLIX, chose to write about the topic of remedies against federal officials partly because of the tension between the natural desire for justice for the victim and the need to follow the legal principles surrounding the case: "This case was one where it was easy to decry the outcome because, as a human, the idea that someone might get away with wrongfully killing another person is offensive. Plenty of other literature on this case echoed that sentiment, but I felt like the decision was the right one to make in the eyes of the law, and there needed to be a voice standing up for the legal principles surrounding the case. After all, without legal integrity, what would we have?"