What is an implied private right of action?

Private Right of Action: When Someone Other than the State has the Right to Enforce Rights Under a Statute

A private right of action is when a private person (as opposed to the state) is legally entitled to enforce rights under a statute.

We’ll define implied in a moment and look at “private right of action” first:

Private = Private person, not the state.

Action = 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.

How it Works

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.)  If someone violates the law, the state can prosecute him.

But private persons also have the right to sue defendants who violate certain types of securities laws – – this means that these people have a private right of action.

In other words, if there is a private right of action, both the state and a private person may have the right to bring an action against someone who violates the statute.

Distinguishing Between Express and Implied Private Rights of Action

There are 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.

Express Private Rights of Action

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.

Implied Private Rights of Action

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.

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 in some circumstances there is an implied private right of action to sue federal officials who violate a person’s Constitutional rights (these are known as Bivens actions)

Below is a video on private rights of action: