Private right of action

Implied cause of action is a term used in United States statutory and constitutional law for circumstances when a court will determine that a law that creates rights also allows private parties to bring a lawsuit, even though no such remedy is explicitly provided for in the law. Implied causes of action arising under the Constitution of the United States are treated differently from those based on statutes.

Perhaps the best known case creating an implied cause of action for constitutional rights is Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). In that case, the United States Supreme Court ruled that an individual whose Fourth Amendment freedom from unreasonable search and seizures had been violated by federal agents could sue for the violation of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation was implied from the importance of the right violated.

In a later case, Schweiker v. Chilicky, 487 U.S. 412 (1988), the Supreme Court determined that a cause of action would not be implied for the violation of rights where the U.S. Congress had already provided a remedy for the violation of rights at issue, even if the remedy was inadequate.

An implied private right of action is not a cause of action which a statute expressly creates. Rather, a court interprets the statute to silently include such a cause of action. Over the past half century, the Supreme Court "has taken three different approaches, each more restrictive than the prior, in deciding when to create private rights of action."

In J.I. Case Co. v. Borak (1964), a case under the Securities Exchange Act of 1934, the Court, examining the statute's legislative history and looking at what it believed were the purposes of the statute, held that a private right of action should be implied under § 14(a) of the Act. Under the circumstances, the Court said, it was "the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose."

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