i think back-- >> we're dealing here with a bivens action? >> -- yes, your honor. >> under what theory is the history of immunity at some point in the 19th century relevant to the scope of the immunity that should be available in a -- in a bivens action? what's the theory for that? >> well, your honor, i think -- i don't know that i have an independent first principles theory. i think this court has said repeatedly that you will keep the immunities coterminous and you will look to the history in both cases. so that's the butz case. >> does that make any sense? i can understand it with respect to 1983, on the theory that when congress passed the predecessor of that statute it implicitly intended to adopt the immunities that were available at the time, but when this court invented the bivens claim -- in when -- 1971 or whatever -- that the court -- the court was -- committed itself to recognizing only those immunities that were available at the time when 1983 was adopted? >> i think, you know, part of what the court's answer is, it's a practica

i think back - >> we're dealing here with a bivens action? >> yes, your honor. >> under what theory is the history of immunity at some point in the 19th century relevant to the scope of the immunity that should be available in a bivens action? what's the theory for that? >> well, your honor, i think -- i don't know that i have an independent first principles theory. i think this court has said repeatedly that you will keep the immunities coterminous and you will look to the history in both cases. so that's the butz case. >> does that make any sense? >> does that make any sense? can understand it with respect to 1983, on the theory that when congress passed the predecessor of that statute it implicitly intended to adopt the immunities that were available at the time. but when this court invented the bivens claim -- in when -- 1971 or whatever -- that the court was committed itself to recognizing only those immunities that were available at the time when 1983 was adopted? >> i think, you know, part of what the court's answer is, it's a practica

particular girl that stood out ♪ ♪ from the rest poison as can be with a high powered chest michael bivensmy head miss her, kiss her love her wrong move you're dead ♪ ♪ that girl is poison ♪ >> jimmy: thank you. [ cheers and applause ] that's the way to do it it. thank you so much. bell biv devoe! [ cheers and applause ] go to bellbivdevoe.com for more info. visit latenightwithjimmyfallon.com for an exclusive, bonus performance. my thanks to liza minnelli, anthony mackie, jousha topolsky. once again, bell biv devoe. [ cheers and applause ] >> and the roots. >> jimmy: never trust a big butt and a smile. give it up for the greatest band in late night, the roots, everybody. [ cheers and applause ] stay tuned for carson daly. thanks for watching and have a good night. hope to see you tomorrow. thank you! [ cheers and applause ] ♪