Author name: CRCL

In the wake of Gonzaga Univ. v. Doe, in which the Supreme Court entrenched a tight-fisted test for whether Congress has guaranteed a statutory right to individuals, the lower courts have felt out the bounds of a new doctrine piecemeal. Recently, in Shakhnes v. Berlin, the Second Circuit held that at least in some cases where Congress confers a right with bounds set by flexible standards – as opposed to hard and fast rules – and a regulation subsequently “defines or fleshes out that right” by imposing a rigid rule, the statute provides the “source” of a right but the regulation ultimately defines the limits of what is enforceable under § 1983. The court ignored persuasive reasoning that would have provided a conceptually sounder basis for deciding the narrow issue at bar, but in so doing mitigated the unduly harsh consequences of the narrower conception of rights that would follow from such reasoning in the wake of Gonzaga.