Cause of action
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A cause of action or right of action, in
To pursue a cause of action, a
There are a number of specific causes of action, including:
The points a plaintiff must prove to win a given type of case are called the "elements" of that cause of action. For example, for a claim of
The defendant to a cause of action must file an "Answer" to the complaint in which the claims can be admitted or denied (including denial on the basis of insufficient information in the complaint to form a response). The answer may also contain counterclaims in which the "Counterclaim Plaintiff" states its own causes of action. Finally, the answer may contain affirmative defenses. Most defenses must be raised at the first possible opportunity either in the answer or by motion or are deemed waived. A few defenses, in particular a court's lack of subject matter jurisdiction, need not be pleaded and may be raised at any time.
Implied cause of action
Implied cause of action is a term used in
Constitutional causes of action
Perhaps the best known case creating an implied cause of action for
In a later case,
Statutory causes of action
Federal law
An implied private right of action is not a cause of action expressly created by a statute. Rather, a court interprets the statute to silently include such a cause of action. Since the 1950s, the United States Supreme Court "has taken three different approaches, each more restrictive than the prior, in deciding when to create private rights of action."[2]
In J.I. Case Co. v. Borak (1964), a case under the Securities Exchange Act of 1934, the Court, examining the statute's legislative history and looking at what it believed were the purposes of the statute, held that a private right of action should be implied under § 14(a) of the Act.[3] Under the circumstances, the Court said, it was "the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose."[4]
In Cort v. Ash (1975), the issue was whether a civil cause of action existed under a criminal statute prohibiting corporations from making contributions to a presidential campaign. The Court said that no such action should be implied, and laid down four factors to be considered in determining whether a statute implicitly included a private right of action:
- Whether the plaintiff is part of the class of persons "for whose especial benefit" the statute was enacted,
- Whether the legislative history suggests that Congress intended to create a cause of action,
- Whether granting an implied cause of action would support the underlying remedial scheme set down in the statute, and
- Whether the issue would be one that is traditionally left to state law.[5]
The Supreme Court used the four-part Cort v. Ash test for several years, and in applying the test, "[f]or the most part, the Court refused to create causes of action."
This became a priority for Justice Powell and a battleground for the Court.[8] Borak, which was also applied under the fourth factor in Cort v. Ash,[9] was singled out by Powell in his Canon dissent:[8]
"although I do not suggest that we should consider overruling Borak at this late date, the lack of precedential support for this decision militates strongly against its extension beyond the facts of the case"
Very shortly after Cannon was decided, the Court adopted what legal scholars have called a new approach to the issue in Touche Ross & Co. v. Redington (1979).[10][11] At issue was an implied right under another section of the Securities Exchange Act of 1934, and the Court said that the first three factors mentioned in Cort v. Ash were simply meant to be "relied upon in determining legislative intent."[12] "The ultimate question," the Court concluded, "is one of legislative intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law."[13] Despite Justice Powell's admonishment of judicial overreach in his Canon dissent,[14] the Court applied the Cort factor test again in Thompson v. Thompson (1988).[15] In Karahalios v. National Federation of Federal Employees (1989) a unanimous court recognized Cort v. Ash as a test for the implication of private remedies. The Cort v. Ash test has continued to be cited in federal courts,[16] and Justice Neil Gorsuch cited the fourth factor in Rodriguez v. FDIC (2020) to vacate a court of appeals judgment that applied a federal common law test instead of state law.
State law
Many states still use the first three Cort factors for their general test for determining whether an implied private cause of action exists under a state statute, including Colorado,[17] Connecticut,[18] Hawaii,[19] Iowa,[20] New York,[21] Pennsylvania,[22] Tennessee,[23] West Virginia,[24] and Washington.[25]
Historically, Texas courts had wandered around in a chaotic fashion between the Cort test and a liberal construction test roughly similar to the old Borak test, but in 2004, the
Some states have developed their own tests independently of the Borak, Cort, and Sandoval line of federal cases. For example, prior to 1988, California courts used a vague liberal construction test, under which any statute "embodying a public policy" was privately enforceable by any injured member of the public for whose benefit the statute was enacted.[27] This was most unsatisfactory to conservatives on the Supreme Court of California, such as Associate Justice Frank K. Richardson, who articulated a strict constructionist view in a 1979 dissenting opinion. As Richardson saw it, the Legislature's silence on the issue of whether a cause of action existed to enforce a statute should be interpreted as the Legislature's intent to not create such a cause of action.
In November 1986, Chief Justice
Case law
- Werling v. Sandy (Ohio 1985)
See also
References
- ^ See generally Sir John Baker, An Introduction to English Legal History (4th ed); S. F. C. Milsom, Historical Foundations of the Common Law (2nd ed).
- ^ Erwin Chemerinsky, Federal Jurisdiction § 6.3 at 382 (4th ed. 2003).
- ^ Section 14(a) of the Act is codified at 15 U.S.C. § 78(n)(a). As implemented by the SEC, it prohibits false or misleading proxy statements.
- ^ 377 U.S. 426, 433 (1964).
- ^ 422 U.S. 66, 78 (1975).
- ^ Chemerinsky, supra, § 6.3 at 384.
- ^ 441 U.S. 677, 731 (Powell, J., dissenting).
- ^ a b Pritchard, A.C.; Thompson, Robert B. (2023). A History of Securities Law in the Supreme Court. United Kingdom: Oxford University Press. p. 192.
- ^ "In Borak, the statute involved was clearly an intrusion of federal law into the internal affairs of corporations; to the extent that state law differed or impeded suit, the congressional intent could be compromised in state-created causes of action. In this case, Congress was concerned, not with regulating corporations as such, but with dulling their impact upon federal elections. As we have seen, the existence or nonexistence of a derivative cause of action for damages would not aid or hinder this primary goal." Cort v, Ash 422 US 66 at 85
- ^ See Chemerinsky, supra, § 6.3 at 385; see also Susan Stabile, "The Role of Congressional Intent in Determining the Existence of Implied Private Rights of Action," 71 Notre Dame L. Rev. 861 (1996).
- ^ Justice Rehnquist wrote for the majority: "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 fewer than five times in cases in which we have granted certiorari."
- ^ Touche Ross & Co. v. Redington, 442 U.S. 560, 576 (1979).
- ^ 442 U.S. at 578.
- ^ Steinberg, Marc I. (1984). Securities Regulation: Liabilities and Rememdies. Law Journal Seminars-Press. § 9.02
- ^ Justice Scalia and Justice O'Connor wrote a concurring opinion that they believe Touche Ross effectively overruled the older Cort v. Ash test; See their concurring opinions in Thompson v. Thompson, 484 U.S. 174 (1988); cf. Alexander v. Sandoval, 532 U.S. 275 (2001)
- Court of Appeals for the Second Circuitapplied the Cort test in McClellan v. Cablevision of Conneticut, 149 F.3d 161 (1998) to find an implied private right of action; Goodale, J. C., Frieden, R. (2021). All about Cable and Broadband. United States: Law Journal Press
- ^ Allstate Ins. Co. v. Parfrey, 830 P. 2d 905 (Colo. 1992).
- ^ Napoletano v. Cigna Healthcare of Connecticut, Inc., 238 Conn. 216 (Conn. 1996).
- ^ Reliable Collection Agency v. Cole, 59 Haw. 503, 584 P.2d 107 (1978).
- ^ Seeman v. Liberty Mut. Ins. Co., 322 N.W.2d 35, 37 (Iowa 1982).
- ^ Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314 (1983).
- ^ Estate of Witthoeft v. Kiskaddon, 733 A. 2d 623 (Pa. 1999).
- ^ Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850 (Tenn. 2010).
- ^ United Steelworkers of America v. Tri-State Greyhound Park, 364 S.E.2d 257 (W. Va. 1987).
- ^ Bennett v. Hardy, 784 P.2d 1258 (Wash. 1990).
- ^ Brown v. De La Cruz, 156 S.W.3d 560 (Tex. 2004).
- ^ Wetherton v. Growers Farm Labor Assn., 275 Cal. App. 2d 168 (1969).
- ^ Moradi-Shalal v. Fireman's Fund Ins. Companies, 46 Cal. 3d 287 (1988).
- ^ Animal Legal Defense Fund v. Mendes, 160 Cal. App. 4th 136 (2008).
- ^ a b Lu v. Hawaiian Gardens Casino, 50 Cal. 4th 592, 601, fn. 6 (2010).