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December 22, 2006

Process v. Substance & Implied Causes of Action

In our book, we have a chapter on implied causes of action. When I wrote it, it was obvious that at one point the supreme court was much more likely to imply a cause of action into a federal statute than it is today. Language, or circumstances, that would have led the court to imply a cause of action 25 or 30 years ago no longer will.

Whether that's good or bad is one thing, but I was thinking about the Erie discussion we were having (below) and wondered if this was another aspect of this issue. There's some connection between this issue and that one.

The issue that the change in judicial attitudes toward implied causes of action creates are several, but one of them is whether a statute enacted at a time when courts were more willing to imply causes of action ought to be read in light of that precedent. You'd think so, since that judicial context gives meaning to the words chosen by the legislature. If a court doesn't do that, then it's giving a current reading to text, ignoring its actual at-the-time meaning (arguably).

That suggests, it seems to me, that this is a substantive issue: interpretation is substantive, not procedural, based on this view. Or at least that's the intimation I have this early Thursday morning.

Thoughts? When I wrote that chapter, I was very intrigued by the thoughts. I suppose I should look for a case where a federal court was analyzing a state statute for an implied cause of action, see whether it looked to state or federal law, and then see what time frame it looked to. The implications of my view are that it should look to state law, and as it was at the time of enactment....

December 22, 2006 in Current Affairs | Permalink


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Leaving aside the federalism aspect of this, there is a good example of contrasting views on the "when measured" question in Alexander v. Sandoval, 532 U.S. 275 (2001). [My apologies to those who are already familiar with this exchange.] Stevens in dissent says:
At the time Congress was considering Title VI, it was normal practice for the courts to infer that Congress intended a private right of action . . . . Assuming, as we must, that Congress was fully informed as to the state of the law, the contemporary context presents important evidence as to Congress' intent . . . .

[Stevens said something similar in the Cannon majority, where he pointed out that, although the Court had become stingier after Cort v. Ash, the statute at issue was passed before that, when the court was a total pushover for private rights of action.]

Scalia's majority opinon in Sandoval, needless to say, doesn't buy the above argument.

Posted by: AaronBruhl | Jan 2, 2007 7:17:30 AM

Thanks - I'm familiar with that exchange and their debate over intent... but doesn't it also have a broader impact? I mean by that: if a court later changes ITS approach to that issue, isn't it also changing the substantive law? And doesn't that then suggest that there is a substantive component to interpretation? (To get back to Erie, which led me here.)

Posted by: David Hricik | Jan 6, 2007 2:18:51 AM

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