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96 Notre Dame L. Rev. 1835 (2020-2021)
Going Rogue: The Supreme Court's Newfound Hostility to Policy-Based Bivens Claims

handle is hein.journals/tndl96 and id is 1877 raw text is: GOING ROGUE: THE SUPREME COURT'S NEWFOUND HOSTILITY TO POLICY-BASED BIVENS CLAIMS Joanna C. Schwartz, Alexander Reinert & James E. Pfander* 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 Ziglar 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 condi- tions 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. INTRODUCTION ....................................................... 1836 I. THE ILLUSORY DOCTRINAL BASIS FOR ZIGLAR'S HOSTILITY TO POLICY CLAIMS ........................................... .1839 A. The Role of Policy in Early Bivens Cases ................. 1840 B. Ziglar 's Misrepresentation of Meyer and Malesko ........ 1842 C. The Role of Policy Post-Malesko......................... 1845 II. THE ZIGLAR COURT'S NOVEL DISDAIN FOR POLICY REFORM THROUGH CONSTITUTIONAL TORTS ........................ .1847 A. The Role of Policy Under § 1983 ........................ 1848 B. Policy Claims Against Federal Officials ................... 1851 © 2021 Joanna C. Schwartz, Alexander Reinert & James E. Pfander. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Schwartz is Professor of Law, UCLA School of Law. Reinert is Max Freund Professor of Litigation & Advocacy and Director, Center for Rights and Justice, Benjamin N. Cardozo School of Law. Pfander is Owen L. Coon Professor of Law, Northwestern Pritzker School of Law. For research assistance, thanks to Leah Reagan-Smith. Thanks also to the Notre Dame Law Review for inviting us to participate in this symposium, and to our fellow participants for an engaging discussion. 1835

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