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'Very Troubling,' Scholar Says as High Court Closes Door on Injury Claims

By William Vogeler, Esq. | Last updated on

Erwin Chemerinsky, the constitutional law scholar, may have more published opinions than any justice of the Supreme Court.

That's because media outlets often quote him, and judges generally do not talk to the press. So when Chemerinsky speaks, people usually listen.

Now that he has landed in the dean's chair at Berkeley Law, Chemerinksy also has a bully pulpit for his latest opinion: recent Supreme Court decisions are "very troubling."

Bivens Revisited

In Ziglar v. Abbasi, the Court said illegal immigrants could not sue federal officers for slamming them into walls, breaking their bones and physically abusing them. The court deferred to Congress and the President on issues of immigration and national security, saying it would not recognize a new constitutional claim.

The decision effectively closed the door on 35 years of Bivens claims, Chemerinsky said. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Court had opened the door for plaintiffs to sue federal agents for unconstitutional actions.

"The court's analysis is deeply troubling," Chemerinsky wrote for the ABA Journal. "The court never recognizes that allowing a Bivens suit is consistent with the court's primary role in the system of separation of powers: ensuring that the Constitution is enforced and that those whose rights have been violated receive a remedy."

Personal Jurisdiction

Chemerinsky also took aim at the Court's decision in Bristol-Myers Squibb v. Superior Court. He said the decision made it "much harder" for plaintiffs to sue corporations.

In the case, California residents and other non-residents sued Bristol-Myers Squibb in state court for injuries from a drug the company manufactured. The company was incorporated in Delaware, with its principal places of business in New York and New Jersey.

The Court said the plaintiffs did not have personal jurisdiction because there was no "adequate link between the state and the nonresidents' claims." They would have to sue in the defendant's home state, in their individual states separately, or in federal court, the court said.

"But what of a foreign corporation that is not 'home' anywhere in the United States?" Chemerinsky complained. "What of claims where too few are injured in a state to provide for a mass action?"

Cases about Bivens and personal jurisdiction do not make headlines, Chemerinsky noted, but lawyers know what they mean. "The court has again effectively closed the courthouse door to those who have been injured."

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