What is an implied private right of action?

First look at the phrase "private right of action".  Action here means a civil lawsuit.  Private right of action means a private person - - we're not referring to the state - - has the right to commence a lawsuit.  

When a legislature passes a law, the state can prosecute someone who violates the law.  For example, federal law prohibits people from defrauding others in connection with the sale and purchase of securities (securities = stocks etc.)  That means the state has the power to prosecute people who defraud others in connection with securities transactions.   But private persons also have the right to sue defendants they allege violated certain types of securities laws - - this is a private right of action.

 US law generally refers to two types of private rights of action - - (i) express and (ii) implied.  An express private right of action is where the legislature states in a statute that private persons have the right to sue if someone violates the law. For example, let's say Congress passes a law prohibiting people from participating in a criminal enterprise and expressly authorizes private persons to sue in federal court if they were victimized by the criminal enterprise.  Congress is granting people an express right of action based on the federal law.

But some private rights of action are implied.  The legislature might not expressly state that private persons have a right to sue but the courts conclude that the legislature intended to empower private persons to sue defendants who violated the law.  The court would say the statute creates an implied private right of action.

Also, courts have concluded that people have an implied right to sue based on certain types of Constitutional violations.  

For example, the United States Constitution does not say that private persons have the right to sue federal agents who violate their rights.  But the Supreme Court concluded that there is an implied private right of action to sue federal officials who violate a person's Constitutional rights (Bivens v. Six Unnamed Agents - - post on that is here).

Below is a video on private rights of action.

 

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