Article by Thomas J. Andre, Jr.
Mr. Justice Rehnquist in 1979 noted that "Once again, we are called upon to decide whether a private remedy is implicit in a statute not expressly providing one. During this Term alone, we have been asked to undertake this task no less than five times in cases in which we have granted certiorari." Justice Rehnquist might have added that the same problem has perplexed the courts since at least the thirteenth century, and that there is every likelihood that it will continue to do so. The purpose of this article is to analyze the "origins" of the implied remedies doctrine, and more particularly, to challenge the commonly accepted view that the origin of the doctrine lies in chapter 50 of the Statute of Westminster II.
Although it has been suggested that the first federal case to recognize an implied cause of action was Texas & Pacific Railway Co. v. Rigsby, the principle had been acknowledged earlier, both by federal and state courts. Many of these early American cases recognizing an implied remedies doctrine, including Rigsby, relied on English authority. Prominent among the English authorities relied upon by the early American courts was Couch v. Steel, which has been variously described as having provided the "theoretical framework" for, or the "origin" of, the doctrine that the law would provide a remedy for a person aggrieved by a breach of a statutory duty. In announcing this doctrine in Couch, Lord Campbell relied heavily on a theretofore obscure chapter of a landmark English statute, chapter 50 of the Statute of Westminster II. Thus, if Lord Campbell and the very respectable authorities who have relied upon his judgment are correct, the implied remedies doctrine is of ancient pedigree. Indeed, even the more recent cases, because of their reliance on Rigsby, could trace their heritage to that chapter. I hope to show, however, that chapter 50 had no significance in the development of the implied remedies doctrine, and that the doctrine developed quite independently of chapter 50.
About the Author
Thomas J. Andre, Jr. Professor of Law, Tulane University School of Law; B.A. 1963, Cornell University; LL.B. 1966, Tulane University; LL.M. 1967, Columbia University.
Citation
54 Tul. L. Rev. 589 (1980)