Abolishing Implied Private Rights of Action

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.