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Washington Law Review

Abstract

Traditionally, courts equated rights and remedies. Consequently, courts sought to provide remedies for the violation of statutory rights even if a statute did not contain detailed enforcement provisions. In the 1970s, however, the U.S. Supreme Court transformed what had been a unified inquiry into whether a statutory provision should bejudicially enforceable into three distinct questions and developed separate criteria for deciding whether a statute should be read to create a right, imply a right of action, or provide a remedy. Rights, rights of action, and remedies are inextricably related. The Court's attempt to separate these inseparable concepts has led to considerable confusion because decisions focusing on only one part of the equation fail to acknowledge the impact on other parts. Sometimes the Court disguises or actually misstates what it is doing. The Court has been wrong to divide rights, rights of action, and remedies and to develop separate tests to assess each of them. While a return to the traditional standards is impractical, the Court should integrate the separate tests and adopt a single test to answer what is actually a single inquiry: Does the applicable statutory provision entitle the plaintiff to the remedy he or she seeks? In answering that question, the Court should carefully examine statutory language, the overall statutory context, and possible reasons for caution in granting a remedy.

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