concurring.
Although I agree with the result reached by the court in this appeal, I cannot join in the court’s holding that AS 18.80.250 creates a private right of action. As the court admits, this issue was not raised in Rat-cliff’s points on appeal.1 Nor was it argued in the court below or in his briefs on appeal. Indeed, counsel for Ratcliff expressly removed this issue from the court’s consideration.2
The court correctly notes that in past cases we have reached issues that were inarticulately raised in the points on appeal. 670 P.2d 1139, 1141-42 n. 4 (Alaska 1983). These cases, however, are inapplicable to this case because the erring parties had at least given the court and opposing party notice of the inarticulately raised issue by discussing it in their briefs or at oral argument. When the issue has been completely overlooked by counsel, or conceded as in this case, we will reach the issue only if the error “affect[s] substantive rights and [is] ‘obviously prejudicial.’” Burford v. State, 515 P.2d 382, 383 (Alaska 1973).
I do not believe that the plain error doctrine applies because Ratcliff’s concession is not prejudicial to his case. The sole issue raised on appeal is whether the superior court abused its discretion in denying sub silentio Ratcliff’s motion to amend the counterclaim to include AS 18.80.200 and AS 18.80.210. In my opinion, it was error to deny the motion because AS 18.80.210 creates a private right of action.
Alaska Civil Rule 15(a) states that “leave [to amend] shall be freely given when jus*1144tice so requires.” We have declared that leave shall be liberally granted in order “to facilitate a proper decision on the merits of the controversy.” Van Horn Lodge, Inc. v. Ahearn, 596 P.2d 1159, 1162 (Alaska 1979) (quoting Merrill v. Faltin, 430 P.2d 913, 915 (Alaska 1967)). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the United States Supreme Court set forth the following factors to be used in determining whether leave to amend should be granted under Federal Rule of Civil Procedure 15(a):
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. —the leave sought should, as the rules require, be “freely given.”
371 U.S. at 182, 83 S.Ct. at 230, 9 L.Ed.2d at 226, quoted in Wright v. Vickaryous, 598 P.2d 490, 495 (Alaska 1979).
Under the “futility of amendment” factor listed in Foman, the superior court would not have abused its discretion in denying Ratcliff leave to amend if the amendment failed to state an actionable claim. Because the only significant change made by the amendment is the addition of AS 18.80.200 and AS 18.80.210, resolution of this issue depends on whether either section gives rise to a private right of action to redress racial discrimination in credit transactions.
AS 22.10.020(c) reads in part:
The superior court is the court of original jurisdiction over all causes of action arising under the provisions of AS 18.80 .... A person who is injured or aggrieved by an act, practice, or policy which is prohibited under AS 18.80 ... may apply to the superior court for relief.... The court may enjoin any act, practice or policy which is illegal under AS 18.80 ... and may order any other relief, including the payment of money, that is appropriate. (Emphasis added).
Pursuant to AS 22.10.020(c), AS 18.80.200 or AS 18.80.210 would create a private right of action to redress racial discrimination in credit transactions if the section prohibits such discrimination. Section 200 appears to be a statement of purpose, avering that (a) discrimination on the basis of race, sex and other impermissible factors menaces the public welfare; and that (b) it is the policy of the State to prevent this discrimination. Section 210, however, declares that “the opportunity to obtain employment, credit and financing, public accommodations, housing accommodations and other property without discrimination because of ... race ... is a civil right.” A statute that gives a person a right prohibits by implication other persons from denying him that right. Cf. Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (similar implication drawn for federal civil right statute). By its plain language, section 210 gives a person a right to engage in credit transactions without discrimination because of race. Thus, section 210 prohibits racial discrimination in credit transactions and, in conjunction with AS 22.10.020(c), gives rise to a private right of action to redress such discrimination.
The court ignores the issue raised and argued by Ratcliff because it apparently believes that a private cause of action can only be created by AS 18.80.250. In my view, a violation of one’s right to obtain financing without discrimination can be alleged under AS 18.80.210; AS 18.80.250 merely defines the perimeters of that right.3 Ratcliff’s proposed addition of AS *114518.80.210 to his complaint would not have been futile, and thus it was error for the superior court to deny Ratcliff leave to amend. Accordingly, the “implied” invocation of the plain error doctrine by the court is unnecessary. More important, the absence of
an explanation of the rationale for considering an issue not argued at trial or raised on appeal, may ... have the unfortunate effect of misleading practitioners into believing that this court will in the future consider issues that were not argued before the superior court or raised on appeal.
Vest v. First National Bank of Fairbanks, 659 P.2d 1233, 1236 (Alaska 1983) (Compton, J., dissenting). For this reason, I concur in the result but not the reasoning of the court’s opinion.
. Ratcliff stated in his points on appeal:
1. The Court erred in dismissing his counter-claim.
a. The Court erred specifically in failing to recognize the right of the individual to proceed under A.S.22.10.020(c), A.S.18.80.-200, A.S.18.80.210.
b. The Court denied the Defendant the equal protection of State and Federal law.
. Ratcliff’s brief states that “[SNB] admittedly properly challenged the right to rely on AS 18.80.250 dealing with unlawful financing practices as giving the right to bring the action only to the Office of the Attorney General.” (Emphasis added.)
. Under the court’s reasoning, AS 18.80.220 (unlawful employment practices), AS 18.80.230 (unlawful practices in places of public accommodation), AS 18.80.240 (unlawful practices in the sale of real property), and AS 18.80.250 (unlawful financing practices) each create a cause of action. I believe that these sections do not create causes of action, but rather del*1145imit the scope of the cause of action created by AS 18.80.210.