Consumer Protection - McCabe v. City of Eureka: Denial of an Implied Private Right of Action under Section 1674 of the Consumer Credit Protection Act

Abstract

INTRODUCTION|Judicial implication of a private right of action for violation of a statute has its roots in the ancient English common law doctrine of ubijus, ibi remedium-where there was a right, there was a remedy. An implied right of action has been well-known at common law in American courts. In 1916, the United States Supreme Court addressed the doctrine of implied rights for the first time in Texas & Pacific Ry. v. Rigsby. In Rigsby, the plaintiff was injured during his employment with the railroad company. He sued for damages under a federal statute which imposed a duty upon all railroad companies to keep appliances secure. The statute, however, did not provide an express private remedy. The Court found, nevertheless, that the safety of employees and travelers was the principal object of the statute, and held that an implied right of private action existed. Since the Rigsby decision, the question of what factors a court should consider in determining whether an implied right exists has remained unsettled. After Rigsby, and until the 1950s, it was assumed that since federal courts had jurisdiction to hear the cases, they had power to grant an implied remedy. Beginning in the early 1950s, the United States Supreme Court began to limit the circumstances under which an implied right of action would be granted...