In the article, I argue that federal causes of action ought to be treated as (1) distinct from substantive rights, (2) synonymous with the availability of a remedy (but not whether a remedy will in fact issue) and (3) distinct from subject matter jurisdiction (unless Congress instructs otherwise). This thesis is built principally on a historical recounting of the cause of action from eighteenth century England to twenty-first century America. In taking an historical approach, I did not mean to argue that federal courts are bound to adhere to centuries-old conceptions of the cause of action. I merely used history to show why the cause of action has taken on various identities and, further, why these identities have changed over time. By closely attending to these changes, we can better determine whether linguistic changes signal substantive changes in doctrine, or are simply loose language.

Document Type


Publication Date