INTRODUCTION I. JUSTICE SCALIA AND IMPLIED RIGHTS OF ACTION A. Legislative Intent 1. From Federal Common Law to Legislative Intent a. Federal Common Law b. Cort Multifactor Test c. Legislative Intent 2. Justice Scalia and Legislative Intent B. Textual Method 1. Rejecting the Cort Factors 2. Rejecting Legal Context Absent Statutory Text C. Alexander v. Sandoval 1. Legislative Intent 2. Textual Method II. CRITIQUES OF JUSTICE SCALIA'S APPROACH III. IMPLIED RIGHTS OF ACTION AND HISTORICAL PRACTICE A. Reevaluating Historical Practice 1. The Nature of a Cause of Action a. Local Law, Not General Law b. Forms of Proceeding 2. Congressional Authorization and State Causes of Action B. Lessons from Historical Practice 1. The Early Debate over Federal Judicial Power 2. The Early Debate over Federal Common Law Crimes CONCLUSION INTRODUCTION
Justice Scalia influenced constitutional and statutory interpretation in U.S. courts in important ways. Regarding constitutional interpretation, Justice Scalia argued that the role of courts is to apply the original public meaning of the Constitution, as best as they can determine it. In defending this position, Justice Scalia moved scholars, judges, and lawyers to account more for constitutional text, structure, and historical practice when interpreting the Constitution. (1) Regarding statutory interpretation, Justice Scalia argued that the role of courts is to apply the meaning that statutory text conveys to a reasonable and informed reader. In defending this position, Justice Scalia moved scholars, judges, and lawyers to think harder about questions involving statutory text, legislative history, legislative purpose, legislative intent, canons of construction, and so on. During his tenure on the Supreme Court, Justice Scalia applied these methods of interpretation to a wide range of constitutional and statutory questions.
This Essay examines a specific area that Justice Scalia influenced through the methods of interpretation that he applied--namely, the question of "implied rights of action." When may a plaintiff bring a federal right of action for damages for the violation of a federal statute that does not expressly create one? This question is one of a series of related questions, such as when may a plaintiff pursue equitable relief for a statutory violation, or pursue legal or equitable relief for a constitutional violation--absent express congressional authorization. The Court has considered the question of when a plaintiff may pursue damages for a federal statutory violation on its own terms, however, and this Essay will address this question alone. (2) At one time, the Supreme Court treated this question as a question of federal judicial power to apply federal common law. Today, in part due to Justice Scalia's influence, the Court treats the question of implied rights of action as a question of statutory interpretation.
Justice Scalia advocated two positions that influenced how the Court determines whether a private damages action is available for the violation of a federal statute. First, Justice Scalia contended that legislative action, not unenacted policy considerations, should determine whether a private right of action is available for the violation of a federal statute. Second, Justice Scalia argued that courts should apply a textual method--rather than a purposive one--to determine whether Congress authorized a civil damages remedy for a federal statutory violation. In 2001, a majority of the Court adopted both of these positions in Alexander v. Sandoval'. (3) In Sandoval, the Court (1) held that congressional intent determines whether a plaintiff has a right of action for the violation of a federal statute and (2) applied a textual method to ascertain whether Congress demonstrated such an intent. (4)
Judges and scholars have argued that the approach the Court adopted in Sandoval is not faithful to historical practice--a critique that aligns with Justice Scalia's commitment to resolve questions of federal judicial power (like other constitutional questions) in accord with historical understandings and practice. Critics have argued that historical practice refutes the position that legislative intent should determine the existence of a private right of action for a federal statutory violation. (5) In determining questions of federal judicial power, as in determining constitutional questions generally, Justice Scalia placed significant reliance on historical practice. As a matter of historical practice, it is argued, federal courts adjudicated common law actions for violations of federal statutes since the founding regardless of whether a violated federal statute itself created a right of action. This historical practice, the argument goes, demonstrates that federal courts today should be understood to have power to adjudicate private damages claims for the violation of a federal statute regardless of whether the statute itself authorizes a cause of action. If Justice Scalia had recognized this historical practice, the argument suggests, he would have understood under the demands of his own method of constitutional interpretation that the federal judicial power includes power to provide legal remedies for violations of federal statutes regardless of whether Congress authorized them. In other words, fidelity to historical practice requires a return to the practice of federal courts supplying implied rights of action as a form of federal common law.
This Essay seeks to demonstrate that historical practice in fact does not refute the approach that Justice Scalia articulated for the Court in Sandoval. The claim that federal courts historically adjudicated common law actions for federal statutory violations, independently of any congressional action, overlooks important early acts of Congress. The First Congress did not leave federal courts free to determine for themselves what causes of action would be available to litigants. Rather, in two little-noticed acts--little-noticed at least today--Congress defined the causes of action that federal courts could adjudicate. In the Process Acts of 1789 (6) and 1792, (7) Congress directed federal courts to apply the same forms of action as those used by the courts of the state in which they sat. Understood in proper legal and historical context, these acts directed federal courts to borrow state causes of action to remedy common law injuries, including injuries resulting from the violation of a federal statute. Congress continued this directive in the 1870s in the Conformity Act. (8)
Pursuant to these directives, when federal courts historically adjudicated common law causes of action for federal statutory violations, they were not doing so simply upon their own authority; rather, they were doing so pursuant to an express congressional authorization. With the eventual death of the forms of action in the early twentieth century and with the adoption of the Federal Rules of Civil Procedure in the 1930s, the congressional authorization to federal courts to borrow state causes of action dissipated, and the question of implied rights of action, as it is understood today, arose.
Any argument about implied rights of action and historical practice must account for these acts of Congress. Because federal courts had congressional authorization to adjudicate common law causes of action for much of U.S. history, the fact that historically federal courts adjudicated common law actions for federal statutory violations does not prove in itself that federal courts had independent authority to adjudicate such actions, absent congressional authorization. To the contrary, there is reason to think that federal courts would have been understood to lack authority to give common law remedies for federal statutory violations had Congress not authorized them to borrow state common law causes of action. In any event, regardless of whether historical practice proves that federal courts need congressional authorization to provide a damages remedy for a federal statutory violation, historical practice fails to prove that federal courts always had authority to supply such actions on their own.
This Essay proceeds as follows. Part I describes Justice Scalia's influence on the development of the Supreme Court's implied-rights-of-action jurisprudence. It explains both how he argued that the question of implied rights of action was a question of legislative intent and how he applied textual methods to determine such intent. Part II describes an important critique of his approach--namely, the claim that historical practice proves that federal courts may supply private rights of action for federal statutory violations regardless of congressional intent. Part III critically evaluates this critique of Justice Scalia's position. The idea that federal courts historically applied common law causes of action to remedy federal statutory violations without congressional authorization is a myth. From the first, federal courts heard only those causes of action that Congress had authorized them to hear. And there is reason to think that early federal courts would not have been understood to have power to define their own causes of action had Congress not provided this authorization from the start. At a minimum, however, historical practice does not establish that early federal courts understood themselves to have power to define and apply common law actions for federal statutory violations absent congressional authorization to do so.
JUSTICE SCALIA AND IMPLIED RIGHTS OF ACTION
Justice Scalia made two significant contributions in the area of implied rights of action, beginning shortly after he joined the Court. First, Justice Scalia argued that, as a separation of powers matter, legislative intent--rather than judicial discretion--should determine whether a private right of action is available to remedy a federal statutory violation. His view was that the Court's...