The Federalist Society

U.S. Supreme Court Jurisprudence on Implied Private Rights of Action: The Pendlum Swings Back

October 1, 2002

Brian J. Leske

Congress often does not explicitly provide for a private right of action when it enacts federal legislation. Whether a private right of action can be implied from a federal regulatory scheme is thus a question of tremendous practical significance. Although the U.S. Supreme Court initially approached the “implication question” liberally, judicial creation of private enforcement rights eventually raised separation-of-powers concerns. These  concerns, in turn, gave rise to the development of an analysis based largely on congressional intent. In his concurring opinion in Cannon v. University of Chicago, then-Associate Justice William H. Rehnquist recognized the importance of congressional clarity in creating private rights of action and warned that “this Court in the future should be extremely reluctant to imply a cause of action absent such specificity on the part of the Legislative Branch.” Almost twenty-five years later, it has become readily apparent that the Rehnquist Court has followed this path. Several opinions handed down during the October 2000 and 2001 Terms show that a majority of the Court is now hostile to implied private rights of action and is unlikely to extend them further.

U.S. Supreme Court Jurisprudence on Implied Private Rights of Action: The Pendlum Swings Back  


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