Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
would have been sufficient in and of itself. (Chapter 9 of this book takes this problem up in more
detail.) Still others criticize private litigation on democracy grounds. Negotiated tort settlements,
they say, force regulated entities to accept regulatory policies outside of the democraticallyaccountable
rulemaking process. Of course, since the private causes of action for damages only
exist if courts conclude that the statutes they enforce imply the availability of such causes of
action, then these suits are themselves the creatures of democratic legislation. Legislatures are
entirely free to abolish such private causes of action.
Defenders of certain private causes of action observe that courts and juries are less
vulnerable than legislatures and regulators to interest group politics. Moreover, where
bureaucratic systems often become ossified and rigid, judges and juries continuously update their
damages evaluations. See generally John Fabian Witt, Bureaucratic Legalism, American Style:
Private Bureaucratic Legalism and the Governance of the Tort System, 56 DEPAUL L. REV. 261,
272 (2007).
5. The False Claims Act. One interesting model for public and private enforcement is the
False Claims Act’s (FCA) qui tam provisions, which permit private persons (styled as “relators”)
to bring civil actions against private parties who defraud the federal government. In return,
relators receive 15% to 25% of the proceeds of the action or settlement or 25% to 30% if the
government chooses not to pursue the litigation. 31 U.S.C. § 3730(b)-(d). Critics of these qui tam
provisions claim that inefficient, specialized relator-side firms increasingly dominate qui tam
litigation. Others argue that these firms have positive effects on the system because they enjoy
higher success rates and expose larger frauds than less experienced firms. David Freeman
Engstrom, Harnessing the Private Attorney General: Evidence from Qui Tam Litigation, 112
COLUM. L. REV. 1244, 1248-50 (2012).
6. Bivens v. Six Unknown Named Agents. Constitutional provisions have been held to
imply private causes of action for damages as well as statutory provisions. In Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), the Supreme Court ruled that federal officials may
be sued in their personal capacity for damages caused by constitutional violations. In the Bivens
case, the Court held that the Fourth Amendment implied a private cause of action against the
federal officers who violated the petitioner’s right to be free from unreasonable searches and
seizures. The Court subsequently expanded Bivens liability to violations of the Fifth, Davis v.
Passman, 442 U.S. 228 (1979), and Eighth Amendments, Carlson v. Green, 446 U.S. 14 (1980).
But Carlson marked the high-water mark for Bivens-style implied constitutional causes of action.
As in the implied statutory causes of action cases, the Court has been much more reluctant in
recent decades to find implied private actions; the justices have not extended liability to new
defendants or new constitutional claims since 1980. For a recent example, see Hernandez v.
Mesa, 589 U.S. __ (2020) (declining to recognize a Bivens claim in the “new ‘context’” of a
cross-border shooting). For a discussion of Bivens and its consequences for official liability, see
Alexander A. Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the
Individual Liability Model, 62 STAN. L. REV. 809 (2010). Plaintiffs may sue state and local
officials for similar constitutional violations under a federal statute that explicitly authorizes
private causes of action. See 42 U.S.C. § 1983.
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