Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 18 (1992)

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Cite as: 503 U. S. 60 (1992)

Scalia, J., concurring in judgment

The Court finds an implicit answer, however, in the legislators' presumptive awareness of our practice of using "any available remedy" to redress violations of legal rights. Bell v. Hood, 327 U. S. 678, 684 (1946); see ante, at 72-73. This strikes me as question begging. We can plausibly assume acquiescence in our Bell v. Hood presumption when the Legislature says nothing about remedy in expressly creating a private right of action; perhaps even when it says nothing about remedy in creating a private right of action by clear textual implication; but not, I think, when it says nothing about remedy in a statute in which the courts divine a private right of action on the basis of "contextual" evidence such as that in Cannon, which charged Congress with knowledge of a court of appeals' creation of a cause of action under a similarly worded statute. See Cannon, supra, at 696-698. Whatever one thinks of the validity of the last approach, it surely rests on attributed rather than actual congressional knowledge. It does not demonstrate an explicit legislative decision to create a cause of action, and so could not be expected to be accompanied by a legislative decision to alter the application of Bell v. Hood. Given the nature of Cannon and some of our earlier "implied right of action" cases, what the Court's analytical construct comes down to is this: Unless Congress expressly legislates a more limited remedial policy with respect to rights of action it does not know it is creating, it intends the full gamut of remedies to be applied.

In my view, when rights of action are judicially "implied," categorical limitations upon their remedial scope may be judicially implied as well. Cf. Cort v. Ash, 422 U. S. 66, 84-85 (1975). Although we have abandoned the expansive rights-creating approach exemplified by Cannon, see Touche Ross & Co. v. Redington, 442 U. S. 560, 575-576 (1979); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 18, 23-24 (1979)—and perhaps ought to abandon the notion of implied causes of action entirely, see Thompson v. Thompson, 484 U. S. 174, 191 (1988) (Scalia, J., concurring


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