Implied Public Rights of Action


This Article analyzes the federal courts’ power to provide public remedies when the legislature has been silent. Like private parties, the United States and the states regularly claim a right to judicial relief or a particular remedy that is not mandated by a federal legislative text. Scholars have mined the depths of implied private rights of action, but have all but ignored implied public rights of action. This Article fills that gap. In particular it argues that when a public litigant sues in what amounts to a private capacity, courts should treat it like a private litigant by placing appropriate constraints on implied rights of action. Conversely, when a public litigant sues in a uniquely public capacity, a significantly more generous implication doctrine is appropriate. Contrary to some common wisdom, when a government sues in a corporate capacity to protect garden-variety property and contract interests, there is no special reason for courts to recognize a right of action. Nor should federal courts broadly provide public rights of action when a government seeks to substitute public for private enforcement of the private rights of its citizens. By contrast, federal courts should more freely imply rights of action when a government sues to vindicate public interests. In the modern administrative state, a public litigant often claims an implied right of action to implement a regulatory program. A government may also sue to vindicate its institutional immunities and authority to regulate. That government powers, rather than rights, imply public remedies may seem a paradox. It is not, or so this Article argues.

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