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Abstract

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.

Erratum

Law; Litigation; Fourth Amendment; Constiutional Law; Torts; Supreme Court of the United States; Civil Procedure; President/Executive Department; Legal Remedies

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