How Federal Causes of Action Relate to Rights, Remedies and Jurisdiction

69 Pages Posted: 13 Sep 2014 Last revised: 16 Sep 2014

See all articles by John F. Preis

John F. Preis

University of Richmond - School of Law

Date Written: September 12, 2014


Time and again, the Supreme Court has declared the federal cause of action “analytically distinct” from rights, remedies and jurisdiction. Yet, just pages away in the U.S. Reports, are other cases in which rights, remedies and jurisdiction all hinge on the existence of a cause of action. What, then, is the proper relationship between these concepts?

The goal of this Article is to articulate that relationship. The Article traces the history of the cause of action from eighteenth century England to its modern usage in the federal courts. This history demonstrates that the federal cause of action should be understood as largely distinct from rights, closely related to (if not synonymous with) remedies, and distinct from jurisdiction except where Congress instructs otherwise or the case implicates sovereign immunity. Sorting out these issues provides several benefits, whether it be refining the doctrine of prudential standing, clarifying the grounds for federal jurisdiction, or dispelling claims that Congress lacks power over certain of causes of action.

Keywords: cause of action, Bivens, Section 1983, remedy, jurisdiction, writs, implied cause of action, merits

Suggested Citation

Preis, John F., How Federal Causes of Action Relate to Rights, Remedies and Jurisdiction (September 12, 2014). Florida Law Review, Vol. 67, No. 1, 2015, Forthcoming, Available at SSRN:

John F. Preis (Contact Author)

University of Richmond - School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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