Document Type


Publication Date

Spring 2023


Wake Forest Law Review






Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the legislative branch. Federal judges, we are told, should not be in the business of creating private rights of action. It is for Congress, not courts, to “weigh and appraise” the costs of imposing “new substantive legal liability,” and “the proper role of the judiciary” is to “apply, not amend, the work of the People’s representatives.”



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