\u3ci\u3eZiglar v. Abbasi\u3c/i\u3e and the Decline of the Right to Redress

Part I briefly describes the facts of Ziglar, its journey through the federal courts, and the Court’s treatment of it. Part II offers a commentary on Justice Kennedy’s opinion in Ziglar, focusing especially on his analysis of the reasons for and against recognizing a Bivens action and his choice to disposeof the case through a Bivens framework. I argue that his reasoning in Ziglar reflects an untenably narrow conception of the place of private rights of action in our legal system. In this respect, Part III suggests that the atrophy of Bivens in the Supreme Court exemplifies a wide range of changes in the Court’s outlook on many aspects of litigation. The Court’s decisions on standing, class actions, punitive damages, federal preemption, pleading, summary judgment, and immunities have all been deeply affected by a failure to take the basis of private rights of action seriously. This skewed mindset largely came into place in the Rehnquist era and has thrived in the Roberts Court. Part IV suggests that some aspects of this hostility to private rights of action have been absorbed by the bench and bar as a kind of centrist, pragmatic wisdom about what our court system can tolerate

Foreword

On October 27, 2017, the Stein Center for Law and Ethics in conjunction with the Fordham Law Review hosted a Colloquium entitled Access to Justice and the Legal Profession in an Era of Contracting Civil Liability. This issue of the Fordham Law Review publishes the articles prepared for that Colloquium. Traversing tort reform, constitutional rights, federal courts, civil procedure, and legal ethics, the small Colloquium was cross-disciplinary with a vengeance. Happily, these contributions from scholars around the country have now coalesced into a coherent whole. Although the Colloquium topic is not part of the access-to-justice movement as usually defined, it makes sense to say a few words in advance about access to justice because contracting civil liability is a complementary theme and, indeed, because the National Center for Access to Justice has recently joined Fordham Law School (and thus provided further impetus for exploring this critically important area). For the most art, the access-to-justice movement identifies the formal and informal barriers ordinary people must surmount in order to enforce their rights effectively and to be duly protected from civil and criminal liability. Lawyers, funding, information, evidence, physical access, legal aid asymmetries in representation—these are only the beginnings of the host of challenges most individuals face, barriers that have an especially marked impact for the poorest in our society. As substantive legal rights, powers, and protections expanded in the 1960s and1970s, profound limitations in the means to access to those rights became even clearer. To its enormous credit, the access-to-justice movement has begun to mobilize lawyers and judges. There is an increasing recognition that our special privileges as members of the bar and bench come with a responsibility to see to it that the legal system is serving society’s members tolerably well and to repair it where it is broken. It is therefore both appropriate and, now, unsurprising to see access-to-justice concerns as part of the academic field of professional responsibility and legal ethics