Latest / Logosofia no Dia a Dia / The Courthouse Gate: Cause of Action in 3 Legal Systems
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- [Prompt] custom: Let's talk about a concept that I think is confusing to many people when they're trying to understan | Hosts: corn, herman [Response] Corn: Daniel sent this one in, and it's one of those questions that sounds like it should have an obvious answer — but the second you scratch the surface, the whole thing gets strange. He's asking about cause of action. The recognized grounds under which you can actually bring a lawsuit. Because here's the thing that trips people up: if there are laws on the books, and someone violates one of them, you'd think you could just point to the statute and sue. Herman: That is not how it works. Corn: Not even close. The legal system has this gate — and it's much narrower than most people realize. You need a recognized cause of action. It's not enough that a law was broken. You need the specific legal theory that connects that violation to a remedy a court is willing to give you. Herman: What makes this genuinely fascinating is that this gate is built completely differently depending on where you are. The UK has one architecture for it. The US has another. Israel has a third. And the height of the gate changes depending on which floor of the courthouse you're standing on. Corn: Walk into small claims court and the gate is basically a chalk line on the floor. Walk into the Supreme Court and suddenly you're dealing with a vault door. Herman: That's what we're going to trace today. How the gap between "a law exists" and "I can sue under it" plays out across three legal systems, from the lowest court to the highest. And why understanding that gap matters — not just for lawyers, but for anyone who thinks they might ever need the legal system to actually do something. Corn: Because the law on the books and the law in action are two very different things. And the cause of action is the bridge between them. Or, depending on the jurisdiction, the toll booth. Herman: Let's start with what the thing actually is. A cause of action is not "someone broke the law." It's the set of facts that, if proven, give a person the right to seek judicial relief. If your neighbor builds a fence six inches onto your property, the cause of action isn't "they violated the property code." It's trespass. Those are the recognized legal categories that courts will hear. Corn: This is where the confusion starts, because most people think of law as a set of rules, and if a rule is broken, there should be a consequence. But the legal system doesn't work that way. Think of causes of action as the doors into the courthouse. If your facts don't fit through one of those doors, you're standing outside, no matter how clearly someone violated a statute. Herman: Here's the puzzle. On paper, the procedural rules in the UK and the US sound almost identical. The UK's Civil Procedure Rules — CPR Part 16 — require "a concise statement of the facts on which the claimant relies" and the remedy sought. The US Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Those sentences could have been written by the same person. Corn: They gatekeep completely differently. Herman: And then Israel comes along with this whole other approach, where the key concept isn't even really cause of action in the Anglo-American sense — it's standing. The Hebrew term is ma'amad. Who has the right to bring a case at all. Israel's Supreme Court, sitting as the High Court of Justice — the Bagatz — has developed one of the broadest standing doctrines in the world. Almost anyone can petition on matters of public interest, even without personal harm. Corn: Which sounds wonderfully open, until you realize there's a different bottleneck waiting downstream. The court can still say, "yes, you have standing, yes, there's a cause of action, but this is a political question and we're not touching it. Herman: You have three systems. The UK, where the gate is about whether your facts, if proved, could ground some legal claim — and they're relatively relaxed about letting you amend things later. The US, where two Supreme Court decisions — Twombly in 2007 and Iqbal in 2009 — raised the pleading bar so high that many cases die before discovery even starts. And Israel, where standing is broad but the court has other ways to say no. Corn: Then you layer on top of that the fact that all of these rules change depending on what level of court you're in. Small claims is basically cause-of-action optional. The Supreme Court is cause-of-action hyper-technical. The same set of facts could be a valid lawsuit on the ground floor and a non-starter on the top floor. Herman: Which is the exact opposite of what most people would expect. You'd think the highest court would be the one most willing to hear important cases. But in practice, the Supreme Court often dismisses cases precisely because no recognized cause of action exists — even when everyone agrees rights were violated. Corn: That's the arc. We'll walk through how each of these three systems builds its gate, what that means for actual people trying to use the courts, and why the trend lines are moving in opposite directions — the US narrowing access while Israel broadens it, with the UK somewhere in the middle. Herman: We'll look at what happens when the gate is closed. Because disputes don't just evaporate. They go somewhere else. Arbitration, ombudsmen, regulatory complaints. The cause of action shapes not just who gets into court, but what the entire dispute resolution ecosystem looks like. Corn: So let's start with the UK. The Civil Procedure Rules were overhauled in 1998 — the Woolf Reforms — and the goal was to make civil litigation more accessible and proportionate. CPR Part 16.2 says the claim form must contain "a concise statement of the facts on which the claimant relies" and the remedy they're seeking. Herman: The critical thing about the UK approach is that it's facts-forward, not label-forward. The rules don't require you to name the specific legal theory with technical precision at the outset. What they want is the story. Here's what happened to me. Here's what I want the court to do about it. If the facts, taken as true, could support some recognized cause of action, the case moves forward. Corn: Even if you picked the wrong one initially? Herman: Even if you picked the wrong one. The UK has a relatively generous amendment regime. You can add or change causes of action after filing, subject to limitation periods. So if you file claiming negligence and later realize it's actually better framed as breach of statutory duty, you can amend. The gate is more about whether your facts disclose a viable legal claim at all, not whether you got the legal label right on the first try. Corn: Which seems sensible. The facts are what they are. The legal theory is just the lens you view them through. Herman: And this approach flows from the UK's broader legal culture, which has historically been less focused on rigid pleading technicalities and more on getting to the merits. There's also the overlay of the Human Rights Act 1998, which incorporates the European Convention on Human Rights into domestic law and creates specific causes of action for Convention rights violations against public authorities. Corn: There's a catch. For judicial review — when you're challenging a government decision — the UK has this "sufficient interest" test under the Senior Courts Act 1981. You can't just be a busybody. You have to show you have enough of a stake in the outcome. Herman: And that's where the UK's gate actually does some work. In private law — suing your neighbor, suing a company — the cause of action question is mostly about whether your facts fit a recognized legal category. In public law — challenging government action — you also need standing. " It's not as broad as Israel's approach, but it's not as narrow as the US Article III standing doctrine either. The UK sits in the middle. Corn: Then you cross the Atlantic and everything gets more aggressive. Walk me through Twombly and Iqbal. Herman: Before 2007, the US pleading standard was basically "conceivability." Under the old Conley v. Gibson case from 1957, a complaint would survive a motion to dismiss unless it appeared "beyond doubt that the plaintiff can prove no set of facts in support of his claim." Very low bar. You could file a complaint that was pretty thin on specifics, and as long as you could imagine some scenario where the plaintiff might win, the case proceeded to discovery. Corn: Discovery in the US is famously expensive. Herman: And that was the problem the Supreme Court was responding to. In Bell Atlantic Corp. Twombly in 2007, the Court said the old standard isn't enough anymore. A complaint has to contain "enough facts to state a claim to relief that is plausible on its face." Not just conceivable. Then in Ashcroft v. Iqbal in 2009, the Court applied that standard to a constitutional claim by a post-9/11 detainee and made clear that plausibility applies across the board. Corn: What does "plausible" actually mean in practice? Herman: It means the facts you plead have to allow the court to draw a reasonable inference that the defendant is liable. You can't just recite the elements of the cause of action and say "the defendant did these things." You need enough factual detail to nudge your claim from possible to plausible. And critically, the court disregards "legal conclusions" masquerading as facts. If you say "the defendant discriminated against me," that's a legal conclusion. The court ignores it. You need to plead the specific facts that would support an inference of discrimination. Corn: The cause of action becomes a weapon for defendants. File a motion to dismiss before discovery even starts, argue the complaint isn't plausible enough, and the case dies. Herman: And the data bears this out. Post-Iqbal, motion to dismiss grant rates went up significantly, particularly in civil rights cases, employment discrimination cases, and cases against government officials. Cases that would have survived under the old Conley standard now get tossed at the pleading stage. Corn: Which brings us to Israel, where the whole framework is different. Israel doesn't even have a single civil procedure code in the traditional sense. It's a patchwork — Ottoman law, British Mandate law, Knesset legislation, all layered on top of each other. Herman: No written constitution. Which makes the cause of action question even more interesting, because there's no single document that enumerates rights and creates causes of action for their violation. Instead, the key gatekeeping concept is standing — ma'amad. Corn: The landmark case is Ressler v. Minister of Defense, from 1986. The Supreme Court — sitting as the High Court of Justice — held that any resident of Israel has standing to challenge government actions on matters of public concern, even without showing personal harm. You don't need to be the one who was directly injured. You just need to be a citizen who cares about the legality of what the government is doing. Herman: Which is extraordinarily broad. In the US, you'd need Article III standing — injury in fact, causation, redressability. You'd need to show you personally suffered a concrete harm that the court can fix. In Israel, under Ressler, you can essentially be a public-minded petitioner. The cause of action is almost assumed if the issue is of public importance. Corn: — and this is the twist — the Israeli Supreme Court developed a different filter. The court can say, "yes, you have standing, yes, there's a legal issue here, but this is not suitable for judicial resolution." It's a political question. It belongs to the Knesset, not the courts. Herman: This has become incredibly contentious during the judicial reform crisis. The Supreme Court heard petitions challenging Basic Laws passed by the Knesset — essentially constitutional amendments, even though Israel doesn't have a formal constitution. The petitioners argued there was a cause of action based on the "constitutional structure" of the state. The court asserted the power to review Basic Laws, which was itself a massive controversy about justiciability. Corn: Israel has the widest front door — almost anyone can walk in — but there's a second door inside that can still be closed. The cause of action exists, but the court might still decline to grant a remedy. Herman: This is a fundamentally different philosophy from the US approach. In the US, the Supreme Court has been narrowing the front door itself. If there's no recognized cause of action, you never even get to the question of whether the court should hear the case. The door is locked from the outside. Corn: Nowhere is that clearer than with Bivens. Herman: In 1971, the Supreme Court decided Bivens v. Six Unknown Named Agents. Federal narcotics agents entered Webster Bivens's apartment without a warrant, searched it, arrested him, and allegedly subjected him to a humiliating strip search. He sued for damages, claiming a violation of his Fourth Amendment rights. The problem: there was no federal statute that created a cause of action for damages against federal officers for constitutional violations. Congress hadn't written one. Corn: He had a constitutional right, but no statutory vehicle to enforce it. Herman: And the Supreme Court said — we're going to imply one. The Constitution itself gives rise to a cause of action for damages when federal officers violate your rights, even without a statute. This was a huge deal. Corn: This held for fifty years. Herman: It held, but it was always controversial. Then in 2022, the Court decided Egbert v. A border patrol agent — Robert Boule — alleged that an agent named Erik Egbert violated his First and Fourth Amendment rights. The Court refused to extend Bivens to this "new context." And here's the key: the Court said it would not recognize a Bivens remedy in any new context going forward. Corn: Define "new context." Because that sounds like it could be almost anything. Herman: That's exactly the problem. The Court defined "new context" so broadly that virtually any case that isn't identical to the original Bivens facts — Fourth Amendment, warrantless search, narcotics agents — is a new context. Different constitutional amendment? The practical result is that Bivens is essentially dead for any case that doesn't precisely mirror the 1971 facts. Corn: If a federal officer violates your constitutional rights today, in a way that doesn't look exactly like what happened to Webster Bivens, you have no cause of action. You cannot sue for damages. Herman: Even though your rights were violated. Even though everyone agrees the officer acted unlawfully. No cause of action, no remedy. And the research indicates that the current Supreme Court term includes multiple petitions asking the Court to go even further and formally overrule Bivens entirely. If that happens, there will be no implied cause of action for constitutional violations by federal officers, period. Only what Congress explicitly creates by statute. Corn: Which is the narrowest possible gate. The UK would look at the same facts and say, "do these facts, if proved, disclose a cause of action under the Human Rights Act or the tort of misfeasance in public office?" Israel would say, "does the petitioner have standing under Ressler, and is this justiciable?" The US says, "is there a statute that explicitly authorizes this lawsuit? Then go home. Herman: That's the core of what Daniel's getting at with his prompt. The gap between "a law was broken" and "I can sue" is not a bug. It's a feature. It's deliberately built into each system, but built differently. And those differences determine who gets justice and who doesn't. Corn: Let's pin down the definition, because the term itself is part of the confusion. A cause of action isn't the harm you suffered. It's not the law that was violated. It's the specific legal theory that connects your facts to a remedy. If someone punches you, the cause of action is battery. If a company lies to get you to sign a contract, it's fraudulent misrepresentation. The facts are what happened. The cause of action is the legal category that says "courts recognize this type of wrong and will do something about it. Herman: The reason this matters — the reason it's not just a technicality — is that legal systems don't recognize every type of harm. They recognize specific ones, developed over centuries through common law or defined by statute. If your harm doesn't fit into one of those boxes, you're out of luck, no matter how wronged you feel. Corn: Which is where the procedural rules come in. On the surface, the UK's CPR Part 16 and the US Federal Rule 8(a)(2) read like cousins. Both want a short statement of facts. Both want you to show you're entitled to relief. But the UK version is fundamentally asking "what happened to you?" while the US version, post-Twombly and Iqbal, is asking "convince us right now, with detailed facts, that your legal theory is plausible. Herman: Israel doesn't even frame it this way. The Israeli approach, because of that patchwork legal history — Ottoman foundations, British Mandate procedure, modern Knesset statutes — puts the filter at a different point entirely. The question isn't primarily "did you plead the right cause of action?" It's "do you have the right to bring this case at all?And once you're through that door, the next question is "should we, as a court, be deciding this? Corn: Three systems, three different places where the gate gets built. The UK puts it at the boundary between facts and legal categories — and keeps the door relatively easy to open. The US puts it right at the pleading stage and has been raising the threshold for almost two decades. Israel puts it at the entrance itself — who are you to ask? — but then has a second gate inside. Herman: The really strange thing is that all three of these architectures look completely different depending on which floor you're on. Small claims court essentially abandons the gate entirely. The Supreme Court turns it into a fortress. Same legal system, same jurisdiction, completely different access to justice depending on the dollar amount or the legal question at stake. Herman: Let's walk through the UK mechanism first, because it's the most straightforward — and in some ways the most forgiving. CPR Part 16.2 says the claim form needs "a concise statement of the facts on which the claimant relies" and the remedy sought. Notice what it doesn't say. It doesn't say "name the precise legal theory." It doesn't say "cite the statute." It says: tell us what happened and what you want. Corn: Which sounds almost naive compared to the US approach. Herman: It's not naive — it's a deliberate design choice. The Woolf Reforms were all about making civil litigation less of a technical gladiator sport. The philosophy was: if your facts disclose a viable legal claim, we're not going to bounce you because your lawyer used the wrong Latin phrase. And the amendment rules back that up. You can add or change causes of action after filing, as long as you're within the limitation period. So the gate isn't locked. Corn: There's still a gate. What does "sufficient interest" actually filter out? Herman: That's the public law side — judicial review under CPR Part 54. If you're challenging a government decision, you can't just be someone who read about it in the newspaper and got annoyed. You need to show you have enough of a stake. The courts have interpreted "sufficient interest" fairly broadly — environmental groups challenging planning decisions, for example, have been recognized. But it's not the Israeli "any resident can petition" standard. There's a threshold. Corn: On the private law side — suing another person or a company — the cause of action question is mostly about whether your facts map onto a recognized category. Negligence, breach of contract, trespass, defamation. The court isn't going to invent a new one for you. Herman: But here's the contrast with the US that really matters. In the UK, the motion to strike out — their equivalent of a motion to dismiss — is a relatively high bar. The court has to be satisfied that the claim discloses no reasonable grounds, or is an abuse of process. It's not about whether the pleading is "plausible" enough. It's about whether there's any viable claim at all. So the filtering happens, but it's less aggressive at the front end. Corn: Whereas in the US, post-Twombly and Iqbal, the motion to dismiss became the main event. Walk me through Iqbal specifically. What actually happened in that case? Herman: Javaid Iqbal was a Pakistani Muslim detained after 9/11. He alleged he was subjected to harsh conditions — solitary confinement, beatings, strip searches — based on his race and religion. He sued, among others, Attorney General John Ashcroft and FBI Director Robert Mueller, claiming they personally sanctioned a discriminatory policy. The Supreme Court said: not good enough. The complaint alleged that Ashcroft was the "principal architect" of the policy and Mueller was "instrumental" in adopting it — but those were legal conclusions, not facts. The Court disregarded them. Corn: The specific words you choose in the complaint determine whether your case lives or dies. Herman: You can't just say "the defendant discriminated against me." You need to plead facts that make discrimination the plausible explanation rather than an alternative innocent explanation. In Iqbal's case, the Court said the more obvious explanation for his detention was that he was a man of South Asian descent connected to the 9/11 investigation — not that Ashcroft personally wanted to discriminate against Muslims. The complaint didn't have enough factual heft to nudge discrimination from possible to plausible. Corn: Which is a high bar. You're asking a plaintiff — before any discovery, before any document production, before any depositions — to already have enough specific facts to make their claim plausible. But the evidence of discriminatory intent is often in the defendant's internal emails, which the plaintiff can't see until discovery. Herman: That's the catch-22. And it's why Twombly and Iqbal are so controversial. The old Conley standard let you get to discovery with a fairly bare-bones complaint, on the theory that discovery would surface the actual evidence. The new standard says: you need evidence just to get to discovery. If you can't plead it, you can't find it. If you can't find it, you can't plead it. Corn: The cause of action becomes the weapon. A defendant files a motion to dismiss, argues the complaint isn't plausible, and if they win, the case is over before it starts. No discovery, no trial, no nothing. Herman: The numbers bear this out. Studies after Iqbal showed motion to dismiss grant rates increased substantially — particularly in civil rights cases, employment discrimination, and suits against government officials. The pleading standard became a procedural filter that disproportionately screens out certain types of claims. Corn: Now pivot to Israel, because the philosophy couldn't be more different. The Ressler case from 1986 — what was the actual dispute? Herman: It was about the military exemption for yeshiva students. A lawyer named Yehuda Ressler petitioned the High Court of Justice, arguing the exemption was illegal. The government said: what's it to you? You're not a yeshiva student. You're not being drafted. You haven't been personally harmed. You have no standing. The Supreme Court, led by Justice Aharon Barak, said: that's not how standing works anymore. Any resident of Israel has standing to challenge government actions on matters of public concern that relate to the rule of law. Corn: The front door is basically wide open. You don't need to show personal injury. You don't need to be the one directly affected. You just need to be a citizen who cares about legality. Herman: That's a radical departure from both the UK and US models. In the US, Article III standing requires injury in fact — a concrete, particularized harm that's actual or imminent. Causation — the injury has to be traceable to the defendant's conduct. Redressability — a court ruling has to be able to fix it. If you're just a concerned citizen who thinks the government is doing something illegal, you don't have standing. Corn: Israel's wide front door has that second door inside. Herman: This is where the Israeli system gets interesting. The court can say: we acknowledge you have standing. We acknowledge there's a legal issue here. But this question is not suitable for judicial resolution. It's a political matter for the Knesset. It involves foreign policy. It involves military strategy. It involves the sort of decision-making that courts aren't equipped to handle. Corn: The same set of facts — a citizen sees a government agency violating a statute — produces three completely different outcomes. In the UK, the question is: do you have sufficient interest? If yes, the case proceeds. In the US, the question is: have you suffered a concrete personal injury? If not, you're out. In Israel, the question is: do you have standing? Almost certainly yes. But then: is this justiciable? Herman: That "maybe not" has been the central battleground in Israeli law for the last several years. During the judicial reform crisis, the Supreme Court heard petitions challenging Basic Laws passed by the Knesset. The petitioners argued there was a cause of action rooted in the constitutional structure of the state — the idea that even without a written constitution, there are fundamental principles the Knesset can't override. The court agreed to hear the cases. That was itself a justiciability decision of monumental significance. Corn: Because the counterargument was: this is the ultimate political question. The Knesset passed a Basic Law. Who are judges to strike it down? Herman: And the court's answer, essentially, was: we're the ones who decide what's justiciable. That's the meta-layer. The cause of action exists because the court says it exists. The standing exists because Ressler says it exists. The justiciability exists because the court asserts the power to define its own jurisdiction. It's a self-referential system in a way that the UK and US systems aren't. Corn: Which brings us back to the concrete example Daniel's prompt invites. Same facts, three jurisdictions. A citizen sees a government agency doing something illegal. In the UK, they need sufficient interest — a stake in the outcome beyond general civic concern. In the US, they need Article III standing — a personal, concrete injury. In Israel, they have standing under Ressler, but the court might still say "political question, not for us. Herman: Three different answers to the same question: does this case get heard? And none of those answers depend on whether the law was actually broken. They depend on procedural architecture. The cause of action is the filter, not the merits. That's the thing Daniel's really pointing at. And it gets even stranger when you look at how this plays out at different levels of the court system. Corn: Small claims court. Where the cause of action is basically "something bad happened and I want money for it. Herman: That's not an exaggeration. In the UK, small claims track under CPR Part 27 is designed for cases under ten thousand pounds, and the pleading standards are dramatically relaxed. You fill out a simple form. You describe what happened in plain English. You show up — sometimes literally just you, no lawyer — and tell your story to a district judge. Nobody asks you to specify whether your cause of action is breach of contract or unjust enrichment. The facts imply the legal theory. Corn: Israel's Small Claims Courts Law from 1976 works the same way. Claims up to about thirty-four thousand shekels, and the procedural rules are stripped down. No formal pleadings required. The judge takes an active role in questioning the parties. The cause of action is whatever the facts suggest it is. US state small claims divisions are even more informal. You can often just walk in, pay a small filing fee, and explain what happened. The cause of action is implicit. Herman: Which makes sense at that level. The amounts are small. The stakes are low. The system is designed for access, not technical precision. But here's what's weird: climb the courthouse stairs and the rules don't just get more formal. At the Supreme Court level, the cause of action becomes the entire game. Corn: Nowhere is that more dramatic than the Bivens story. Let's look at what actually happened in Egbert v. Robert Boule ran a bed and breakfast in Washington state, right on the Canadian border. He also worked as a confidential informant for the Border Patrol. An agent named Erik Egbert came to his property one day, and Boule asked him to leave. Egbert allegedly shoved Boule to the ground, then retaliated by reporting Boule's criminal history to the state licensing agency, which suspended his license. Herman: Boule sued, claiming retaliation for exercising his First Amendment rights, and excessive force under the Fourth Amendment. Both clearly established constitutional rights. And the Supreme Court said: no cause of action. Bivens doesn't extend to this "new context." The Court's reasoning was basically — Congress creates causes of action, not courts. If Congress hasn't written a statute giving you the right to sue a federal officer for First Amendment retaliation, you don't have that right. Even though the First Amendment exists. Even though everyone agrees the retaliation happened. Corn: That's the gap in its purest form. A constitutional right with no vehicle to enforce it. The law on the books says one thing. The law in action says something else entirely. Herman: The implications are staggering. Border Patrol agents, TSA officers, FBI agents — any federal officer who violates your constitutional rights in a way that doesn't precisely match the 1971 Bivens facts — you have no damages remedy. You might get an injunction. You might get evidence suppressed in a criminal case. But you cannot sue for the harm you suffered. The cause of action simply doesn't exist. Corn: The current term — the Supreme Court's 2025 to 2026 term — there are petitions asking the Court to go the final step and overrule Bivens entirely. If that happens, even the original Bivens scenario — warrantless search, excessive force, false arrest — no cause of action unless Congress passes one. Herman: Which Congress has shown zero appetite for doing. So you'd have constitutional rights that are effectively unenforceable against federal officers through damages actions. The UK looks at this and scratches its head, because the Human Rights Act 1998 explicitly creates a cause of action for Convention rights violations by public authorities. Section 7 lets you bring proceedings against a public authority that acts incompatibly with your Convention rights. Section 8 lets the court grant whatever remedy it considers just and appropriate. No Bivens-style gap. Corn: Though the UK has its own version of the problem. The government has been talking about replacing the Human Rights Act with a British Bill of Rights for years now. If that happens, the cause of action architecture could change dramatically. Herman: And the UK Supreme Court in UNISON v. Lord Chancellor — the 2017 case — was dealing with a different angle of the same problem. The government introduced fees for bringing employment tribunal claims. Up to twelve hundred pounds. The number of claims dropped by about seventy percent. The Supreme Court struck the fees down. The reasoning was essentially: the right of access to a court is itself a cause of action — a constitutional right, even in a system without a codified constitution. If procedural rules effectively deny that access, the rules are unlawful. Corn: The UK Supreme Court recognized a -cause of action. The right to bring a cause of action is itself enforceable. Herman: And that's a fundamentally different posture from the US Supreme Court, which has been narrowing the gates, not policing whether the gates are too narrow. The UK court asked: can people actually get in? The US court asks: should we make the door smaller? Corn: Israel's Supreme Court takes yet a third approach. Broad standing, but the justiciability filter. And in the last couple of years, during the judicial reform crisis, the court has been increasingly willing to hear petitions on core political questions. But they've also developed this doctrine of "relative justiciability." The idea that some issues are justiciable in principle, but the court will show deference to the political branches in how it rules. So the cause of action exists. The case gets heard. But the remedy might be narrow. The gate is open, but the path inside is graded. Herman: All of this has a knock-on effect that doesn't get enough attention. When courts close the cause of action door — or when the door is technically open but practically useless — disputes don't just disappear. They go somewhere else. The shadow system. Corn: Alternative dispute resolution. Arbitration, mediation, ombudsmen, regulatory complaints. Herman: In the UK, the Financial Ombudsman Service handles hundreds of thousands of disputes a year that would never survive the CPR pleading standard in court. It's designed to be accessible — no lawyers required, no formal pleadings, no cause of action analysis. You just explain what happened and the ombudsman decides what's fair. Corn: In the US, mandatory arbitration clauses have essentially created a parallel justice system. When you sign a contract with a bank, an employer, a phone company, you're probably waiving your right to bring a cause of action in court at all. The dispute goes to a private arbitrator. The procedural rules are whatever the arbitration agreement says they are. The cause of action — if it exists at all — is whatever the arbitrator decides it is. Herman: In Israel, the Ombudsman for Complaints Against Public Bodies provides a non-judicial route for citizens to challenge government action. You don't need standing. You don't need a cause of action. You just need a complaint. The ombudsman investigates and recommends. It's not a court, but it's a remedy. Corn: The cause of action isn't just a legal technicality. It's a distribution mechanism. It determines who gets into the formal justice system and who gets shunted into the alternatives. Narrow the gate enough, and you don't reduce disputes — you just redirect them. Herman: The alternatives aren't always worse. The Financial Ombudsman resolves disputes faster and cheaper than the High Court. Small claims court gives people access they'd never get at the Supreme Court level. But the alternatives also lack the procedural protections of formal litigation. No right to discovery. No right to cross-examination. Limited appeal rights. The shadow system is faster and cheaper, but it's also less rigorous. Corn: Let's get practical. If you're sitting there thinking about actual litigation — or just trying to understand whether a legal wrong you've experienced is something a court will actually care about — the first question isn't "was the law broken?" It's "do I have a recognized cause of action? Herman: That's a different research project. You can't just find the statute and point to it. You need to understand the procedural rules in your jurisdiction. The standing requirements. The pleading standards. What doors exist and whether your facts fit through one of them. Corn: A lawyer who tells you "you have a strong case on the merits" but hasn't addressed the cause of action question is giving you incomplete advice. Because the merits don't matter if you can't get through the gate. In the US right now, that gate is higher than it's been in decades. Twombly and Iqbal raised the pleading bar. Bivens is being narrowed to the point of vanishing. If you're suing a federal officer for a constitutional violation, the answer might simply be: there is no cause of action. Not that you'd lose on the merits. That you can't even bring the case. Herman: Meanwhile in Israel, the trend line is the opposite. Standing keeps broadening. The Ressler doctrine means almost anyone can petition on public interest matters. The bottleneck is justiciability — will the court actually rule? — but the front door is wide open. If you're a policy advocate or a public interest lawyer, that's a fundamentally different strategic landscape. Corn: The UK sits in the middle, with its facts-forward pleading and relatively forgiving amendment rules. The cause of action gate exists, but it's not designed to be a weapon for defendants the way it often is in the US. If your facts disclose any viable legal claim, you're probably getting through. Herman: Here's the third piece. When courts close the cause of action door, look for the alternatives. Public pressure campaigns. The Financial Ombudsman in the UK resolves disputes that would never survive CPR Part 16. Mandatory arbitration in the US has become a parallel justice system, for better or worse. Israel's Ombudsman for Complaints Against Public Bodies gives citizens a route that doesn't require standing or a formal cause of action. Corn: The cause of action is a tool. It's not the only tool.