Going Rogue: The Supreme Court's Newfound Hostility to Policy-Based Bivens Claims

29 Pages Posted: 2 Feb 2021 Last revised: 3 Feb 2021

See all articles by Joanna C. Schwartz

Joanna C. Schwartz

University of California, Los Angeles (UCLA) - School of Law

Alex Reinert

Yeshiva University - Benjamin N. Cardozo School of Law

James E. Pfander

Northwestern University School of Law

Date Written: February 2, 2021

Abstract

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special-factors analysis when the claim arises in a "new context." In Abbasi itself, the Court found the context of the plaintiffs’ claims to be "new" because, in the Court's view, they challenged "large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an exemption for policy challenges can claim no support in the Court’s own development of the Bivens doctrine, or in the principles that animate the Court’s broader approach to government accountability law. Equally troubling, the policy exemption has already caused substantial confusion among lower courts. Judging that it lacks a legitimate predicate and defies coherent application, we conclude that the Court should pursue no further its hostility to policy-based Bivens claims.

Keywords: Bivens, constitutional torts, government policy, government accountability

JEL Classification: K40, K41, K42

Suggested Citation

Schwartz, Joanna C. and Reinert, Alexander A. and Pfander, James E., Going Rogue: The Supreme Court's Newfound Hostility to Policy-Based Bivens Claims (February 2, 2021). Notre Dame Law Review, Forthcoming, UCLA School of Law, Public Law Research Paper No. 21-09, Northwestern Public Law Research Paper No. 21-03, Available at SSRN: https://ssrn.com/abstract=3778230

Joanna C. Schwartz (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
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(310) 206-4032 (Phone)

Alexander A. Reinert

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

James E. Pfander

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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