Implied cause of action
Encyclopedia
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.
(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.
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."
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. 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."
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:
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." 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."
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. Redington (1979). 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." "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." Justice Scalia and Justice O'Connor have stated that they believe Touche Ross effectively overruled the older Cort v. Ash test.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
statutory and constitutional law for circumstances when a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
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. 388Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(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
Schweiker v. Chilicky
Schweiker v. Chilicky, 487 U.S. 412 , was a United States Supreme Court decision that established limitations on implied causes of action. The Court determined that a cause of action would not be implied for the violation of rights where the U.S...
, 487 U.S. 412
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(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.
Statutory causes of action
An implied private right of action is not a cause of actionCause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
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."
In J.I. Case Co. v. Borak (1964), a case under the Securities Exchange Act of 1934
Securities Exchange Act of 1934
The Securities Exchange Act of 1934 , , codified at et seq., is a law governing the secondary trading of securities in the United States of America. It was a sweeping piece of legislation...
, 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. 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."
In Cort v. Ash
Cort v. Ash
Cort v. Ash, 422 U.S. 66 , was a case in which the United States Supreme Court determined whether a court may imply a cause of action from a criminal statute.-Facts & procedural history:Defendant/petitioner Stewart S...
(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.
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." An important application of the test, however, came in Cannon v. University of Chicago
Cannon v. University of Chicago
Cannon v. University of Chicago, 441 U.S. 677 , was a United States Supreme Court case which interpreted Congressional silence in the face of earlier interpretations of similar laws to determine that Title IX of the Higher Education Act provides an implied cause of action.-Facts:Plaintiff Geraldine...
(1979), which recognized an implied private right of action. There, a plaintiff sued under Title IX
Title IX
Title IX of the Education Amendments of 1972 is a United States law, enacted on June 23, 1972, that amended Title IX of the Civil Rights Act of 1964. In 2002 it was renamed the Patsy T. Mink Equal Opportunity in Education Act, in honor of its principal author Congresswoman Mink, but is most...
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
Lewis Franklin Powell, Jr.
Lewis Franklin Powell, Jr. was an Associate Justice of the Supreme Court of the United States. He developed a reputation as a judicial moderate, and was known as a master of compromise and consensus-building. He was also widely well regarded by contemporaries due to his personal good manners and...
, 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
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. 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."
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. Redington (1979). 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." "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." Justice Scalia and Justice O'Connor have stated that they believe Touche Ross effectively overruled the older Cort v. Ash test.