The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, battery, or false imprisonment).
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.
"[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.
There, a plaintiff sued under Title IX of the Education Amendments of 1972, which prohibited sex discrimination in any federally funded program.
Justice Powell, however, dissented and criticized the Court's approach to implied rights of action, which he said was incompatible with the doctrine of separation of powers.
[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.
[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.
In November 1986, Chief Justice Rose Bird and two fellow liberal colleagues were ejected from the court by the state's electorate for opposing the death penalty.
Bird's replacement, Chief Justice Malcolm M. Lucas, authored an opinion in 1988 that adopted Richardson's strict constructionist view with regard to the interpretation of the California Insurance Code.
In the 2010 decision in Lu v. Hawaiian Gardens Casino, Justice Ming Chin wrote for a unanimous court that "we begin with the premise that a violation of a state statute does not necessarily give rise to a private cause of action.