Hastings Law Journal


If Congress does not provide an express cause of action when creating a statutory right, federal courts must imply a private right of action if plaintiffs are to obtain judicial relief. This Article argues that the Supreme Court's restrictive legislative intent test for finding implied rights of action could effectively eliminate implied rights of action, with harsh consequences for the poor and minorities. The Article analyzes the development of implied rights of action, identifies the concept of "presumption of enforceability," and then examines the Court's application of this concept. The Article argues that federal courts, rather than strictly construing the legislative intent test, should construe statutes creating rights for a special class, such as the poor or minorities, as creating a presumption of enforceability that allows the implication of a private right of action. The Article also identifies a second concept, "presumption of exclusivity," that may overcome the presumption of enforceability when the statute establishes a comprehensive remedial scheme. The Article concludes that in close cases in which the two presumptions conflict, federal courts should imply a private right of action if doing so would further the congressional purposes underlying the statutory right. Alternatively, federal courts could require administrative resolution yet retain jurisdiction to review the administrative remedy.

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