Implied cause of action

Implied cause of action is a term used in United States statutory and constitutional law for circumstances when a court will determine that a law that creates rights also allows private parties to bring a lawsuit, even though no such remedy is explicitly provided for in the law. Implied causes of action arising under the Constitution of the United States are treated differently than those based on statutes.

Constitutional causes of action

Perhaps the best known case creating an implied cause of action for constitutional rights is "Bivens v. Six Unknown Named Agents", 403 U.S. 388 (1971). In that case, the United States Supreme Court ruled that an individual whose Fourth Amendment freedom from unreasonable search and seizures had been violated by federal agents could sue for the violation of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation was implied from the importance of the right violated.

In a later case, "Schweiker v. Chilicky", 487 U.S. 412 (1988), the Supreme Court determined that a cause of action would not be implied for the violation of rights where the U.S. Congress had already provided a remedy for the violation of rights at issue, even if the remedy was inadequate.

tatutory causes of action

An implied private right of action is not a cause of action which a statute expressly creates. Rather, a court interprets the statute to silently include such a cause of action. Over the past half century, the Supreme Court "has taken three different approaches, each more restrictive than the prior, in deciding when to create private rights of action." [Erwin Chemerinsky, Federal Jurisdiction § 6.3 at 382 (4th ed. 2003).]

In "J.I. Case Co. v. Borak" (1964), a case under the Securities Exchange Act of 1934, the Court, examining the statute's legislative history and looking at what it believed were the purposes of the statute, held that a private right of action should be implied under § 14(a) of the Act. [Section 14(a) of the Act is codified at 15 U.S.C. § 78(n)(a). As implemented by the SEC, it prohibits false or misleading proxy statements.] Under the circumstances, the Court said, it was "the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose." [377 U.S. 426, 433 (1964).]

In "Cort v. Ash" (1975), the issue was whether a civil cause of action existed under a criminal statute prohibiting corporations from making contributions to a presidential campaign. The Court said that no such action should be implied, and laid down four factors to be considered in determining whether a statute implicitly included a private right of action:

# Whether the plaintiff is part of the class of persons "for whose especial benefit" the statute was enacted,
# Whether the legislative history suggests that Congress intended to create a cause of action,
# Whether granting an implied cause of action would support the underlying remedial scheme set down in the statute, and
# Whether the issue would be one that is traditionally left to state law. [422 U.S. 66, 78 (1975).]

The Supreme Court used the four-part "Cort v. Ash" test for several years, and in applying the test, " [f] or the most part, the Court refused to create causes of action." [Chemerinsky, supra, § 6.3 at 384.] An important application of the test, however, came in "Cannon v. University of Chicago" (1979), which recognized an implied private right of action. There, a plaintiff sued under Title IX of the Education Amendments of 1972, which prohibited sex discrimination in any federally funded program. The Court, stating that the female plaintiff was within the class protected by the statute, that Congress had intended to create a private right of action to enforce the law, that such a right of action was consistent with the remedial purpose Congress had in mind, and that discrimination was a matter of traditionally federal and not state concern. Justice Powell, however, dissented and criticized the Court's approach to implied rights of action, which he said was incompatible with the doctrine of separation of powers. It was the job of Congress, not the federal courts, Justice Powell said, to create causes of action. Therefore the only appropriate analysis was whether Congress intended to create a private right of action. "Absent the most compelling evidence of affirmative congressional intent, a federal court should not infer a private cause of action." [441 U.S. 677, 731 (Powell, J., dissenting).]

Very shortly after "Cannon" was decided, the Court adopted what legal scholars have called a new approach to the issue in "Touche Ross & Co. v. Remington" (1979). [See Chemerinsky, supra, § 6.3 at 385; see also Susan Stabile, "The Role of Congressional Intent in Determining the Existence of Implied Private Rights of Action," 71 Notre Dame L. Rev. 861 (1996).] At issue was an implied right under another section of the Securities Exchange Act of 1934, and the Court said that the first three factors mentioned in "Cort v. Ash" were simply meant to be "relied upon in determining legislative intent." [442 U.S. 560, 576 (1979)] "The ultimate question," the Court concluded, "is one of legislative intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law." [442 U.S. at 578.] Justice Scalia and Justice O'Connor have stated that they believe "Touche Ross" effectively overruled the older "Cort v. Ash" test. [See their concurring opinions in Thompson v. Thompson, 484 U.S. 174 (1988).]


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