Harvard Law Review
By what right may courts seek to remedy deficient administrative performance, and by what methods should they do so? This question has been answered in fits and starts, in the context of several existing remedies: rights to contest regulatory impositions, hearing rights concerning government benefits, implied rights of action, and most recently, rights to require an agency itself to take enforcement action. Professors Stewart and Sunstein offer a theory to explain both the conceptual similarities and the evolutionary differences among these remedies. They show how the remedies are linked with particular conceptions of the deepest purposes particular statutes are meant to advance: security of entitlements, expansion of production, and advancement of public values. These conceptions, they argue, justify judicial creation of such remedies in the face of legislative silence. Ordinarily, courts create these remedies as a matter of federal common law, subject to congressional preclusion; occasionally, however, the remedies are compelled by the Constitution itself. By thoughtful use of their remedial powers, courts can fill, in the regulatory era, the same role in protecting the citizenry that they filled when the common law stood nearly alone.
Cass R. Sunstein & Richard B. Stewart, "Public Programs and Private Rights," 95 Harvard Law Review 1193 (1981).