Jonathan Marcantel, ‘Abolishing Implied Private Rights of Action’

For nearly a century, jurists and scholars have attempted to generate a normatively justifiable, generally applicable mechanism to evaluate implied rights of action. Yet, in each instance, the existence of the Doctrine has been presumed. Thus, in each instance, jurists and scholars have — at least implicitly — presumed that the Doctrine provides some normative value worth protecting. This article argues that presumption is flawed. Specifically, 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. Nevertheless, this article argues that continued maintenance of the Doctrine does generate substantial costs for the judicial system — it generates significant administrative waste and undermines both the credibility and legitimacy of the judiciary. Furthermore, this article argues that abolition of the Doctrine would generate a neutral impact on traditional notions of substantive justice. Taking those arguments together, this article argues that continued maintenance of the Doctrine is not normatively justifiable. Accordingly, the article argues the Doctrine should be abolished.

Marcantel, Jonathan A., Abolishing Implied Private Rights of Action (January 27, 2013).

First posted 2013-01-28 07:55:17

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