43 Pages Posted: 26 Feb 2009
Date Written: February 26, 2009
Courts sometimes (but not always) treat as proper starting points for litigation alleged violations of statutory provisions that do not by their terms provide for rights to bring suit. Judicial opinions addressing the matter often include some more or less abstract accounts of the action-fitting features present or absent in the statutory terms at issue. Implied right of action questions thus beget jurisprudence -- if not worked-out legal theory, at the least orienting expectations about legal form. The United States Supreme Court in particular has faced and resolved the implied right question in a goodly number of cases over the course of this century -- mostly in two clusters of opinions, first in the period from the mid-1920s to the mid-1940s, and second in a twenty-year period beginning in the mid-1970s. The subject of this article is the assumptions that the Court's work reveals.
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