\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

Rights, Wrongs, and Recourse in the Law of Torts

Cardozo\u27s opinion in Palsgraf v. Long Island Railroad Co.\u27 hinges on a stark assertion about rights and wrongs: A plaintiff has no right of action unless she can show \u27a wrong\u27 to herself; i.e., a violation of her own right. Cardozo himself made this principle the core of his analysis, yet scholars typically regard it as impenetrable, circular, vacuous, or, as Posner put it, eloquent bluff. Small wonder, then, that readers typically turn to reasonable foreseeability as the essence of the case. Leading scholars treat Palsgraf as a proximate cause case, despite Cardozo\u27s pronouncement that W[the law of causation, remote or proximate, is thus foreign to the case before us., Though Palsgraf is widely regarded as the most famous case in American tort law, Cardozo\u27s own reasoning in Palsgraf is typically ignored or derided, but not explained. The facts of Palsgraf may be peculiar, but its core principle is pervasive: For all torts, courts reject a plaintiffs claim when the defendant\u27s conduct, even if a wrong to a third party, was not a wrong to the plaintiff herself. For example, an injured plaintiff can win in fraud only if she was defrauded, in defamation only if she was defamed, in trespass only if her land rights were violated, and so on. Courts reach these results even where the defendant acted tortiously, the plaintiff suffered a real injury, and the plaintiffs injury was reasonably foreseeable. The legal rule upon which these cases rely is that which our scholarly tradition treats so ambivalently in Palsgraf: A plaintiff cannot win unless the defendant\u27s conduct was a wrong relative to her, i.e., unless her right was violated. I shall call this principle the substantive standing rule and shall show that it is a fundamental feature of tort law