Section 1983 and Implied Rights of Action: Rights, Remedies, and Realism

This Note criticizes the Court’s current reconciliation of the implied right of action and section 1983 inquiries, and argues that the availability of lawsuits under section 1983 should be the same as under an implied right of action test. Part I, by offering a working definition of rights, suggests an approach to identifying statutorily created rights. Part II discusses the evolution of the Court’s implied right of action ‘ jurisprudence, and explores several explanations for the Court’s hesitancy to create implied rights of action. Part III examines the influence of the Court’s implied right of action test on its jurisprudence of rights under section 1983. Part IV applies these arguments to criticize Professor Henry Monaghan’s recent examination of the jurisprudence of rights in Wilder and Golden State Transit.

This Note concludes that the Court’s treatment of section 1983 has been inconsistent with its approach to implied rights of action. The Court has been far more permissive in allowing private enforcement of statutes where section 1983 applies, basing its distinction on the explicit authorization of private actions contained in section 1983. This Note argues, however, that a federal statute should create the same principal rights and remedies regardless of whether section 1983 applies. Because section 1983 conditions a cause of action on the existence of rights in the plaintiff, a cause of action should exist under section 1983 if and only if the relevant statute would create an implied right of action. As a matter of sound jurisprudence, the inquiry as to whether a plaintiff has a right and whether he can bring a lawsuit must be one and the same.