Abolishing Implied Private Rights of Action Pursuant to Federal Statutes

44 Pages Posted: 27 Jan 2013 Last revised: 20 Feb 2014

Date Written: January 27, 2013

Abstract

The doctrine of implied rights of action has generated a wealth of scholarship in two general areas: First, scholars have attempted to generate normatively justifiable, generally applicable mechanisms to evaluate implied rights of action. Second, scholars have argued the doctrine should permit private rights of action in reference to specific statutory schemes. To date, however, no scholar has evaluated whether the doctrine is normatively justifiable in the first instance. This Article fills a portion of that gap with three primary arguments. First, this Article argues the Doctrine itself maintains, at most, nominal beneficial utility, as the Doctrine, as currently articulated, is only applicable in remote, isolated circumstances. Second, this Article assesses the costs of maintaining the doctrine using the metrics of both Administrative Justice Theory and Procedural Justice Theory and argues that continuing to maintain the doctrine both generates significant administrative waste and has the potential to undermine the credibility and legitimacy of the judicial system. Finally, this Article assesses the impact that abolition of the doctrine would have on Corrective Justice Theory and argues that abolition would have a neutral impact. Ultimately, taking those three arguments together, this Article argues the doctrine is not normatively justifiable.

Keywords: implied rights of action, procedural justice, administrative justice, corrective justice, Rigsby, Cannon, Trans-America

Suggested Citation

Marcantel, Jonathan A., Abolishing Implied Private Rights of Action Pursuant to Federal Statutes (January 27, 2013). Journal of Legislation, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2207656 or http://dx.doi.org/10.2139/ssrn.2207656

Jonathan A. Marcantel (Contact Author)

Charleston School of Law ( email )

Charleston, SC 29402
United States

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