Publication Date


Document Type



The Court has employed inferred-cause-of-action doctrine to foster the rights of individuals, from injured workers to female college applicants to defrauded investors and targets of racial discrimination. Although the question of whether the federal courts ought to infer causes of action from federal statutes is an old chestnut in the federal-courts field, a new basis for barring such a practice has arisen, requiring fresh attention to the Court's inferred-cause-of-action doctrine. This new position asserts that inferring a cause of action is not merely poor judicial policy but extra-jurisdictional under either 28 U.S.C. - 1331 or Article III. Borrowing a phrase from Justice Scalia, I coin this new jurisdictional view the "tribunals position." I argue that even assuming a judicial policy weighing against inferring causes of action is wise; the move to treat this policy issue as a jurisdictional question is not. First, I trace the shadowy history of the tribunals position from dissents in the 1940s to a majority opinion in the October 2007 term. Next, I contend that - 1331 jurisdiction, contrary to the key assumption of the tribunals position, is best understood as a function of federal rights, not causes of action. I further contend that originalist-based interpretations of Article III that challenge the propriety of inferring causes of action are (even on intra-originalist grounds) unpersuasive, because they fail to account for the distinction between constitutional interpretation and constitutional construction. I conclude that the still nascent attempts to construe a policy preference against inferring causes of action as a jurisdictional matter illustrate the broader point that matters of prudence are ill-conceived as jurisdictional questions.

Publication Title

Northwestern University Law Review