* Climenko Fellow and Lecturer on Law, Harvard Law School. Email: sdavis@law.harvard.edu. I would like especially to thank Jake Gersen and David Barron for their helpful comments as this project progressed. In addition I would like to thank Andrew Bradt, Michael Coenen, James Coleman, Tessa Davis, Avlana Eisenberg, Stella Burch Elias, Dick Fallon, Elisabeth de Fontenay, Billy Magnuson, Dan Meltzer, Gillian Metzger, Leah Plunkett, Lisa Sandoval, Babak Siavoshy, Micah Smith, Matthew Stephenson, and Susannah Barton Tobin for helpful comments on previous drafts, and Maria Glover, Michael Heller, Anton Metlitsky, Joe Singer, and Andrew Woods for helpful conversations. This Article also benefitted from many helpful comments of participants in workshops at Florida International University College of Law; Florida State University College of Law; Harvard Law School; Northern Kentucky University Salmon P. Chase College of Law; Sandra Day O’Connor College of Law, Arizona State University; the University of Arizona James E. Rogers College of Law; the University of Colorado School of Law; the University of Houston Law Center; the University of Illinois College of Law; the University of Richmond School of Law; UCLA School of Law; and the annual conference of the Law and Society Association.
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.
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.