Justice Scalia, Implied Rights of Action, and Historical Practice

This Essay examines a specific area that Justice Scalia influenced through the methods of interpretation that he applied—namely, the question of “implied rights of action.” The idea that federal courts historically applied common law causes of action to remedy federal statutory violations without congressional authorization is a myth. From the first, federal courts heard only those causes of action that Congress had authorized them to hear. And there is reason to think that early federal courts would not have been understood to have power to define their own causes of action had Congress not provided this authorization from the start. At a minimum, however, historical practice does not establish that early federal courts understood themselves to have power to define and apply common law actions for federal statutory violations absent congressional authorization to do so.