Saturday, July 21, 2007

Harrison on Ex Parte Young

John C. Harrison, University of Virginia, has posted a new paper, Ex Parte Young. The paper begins with, perhaps, a revealing sentence: "Each of us may hope that by our hundredth year much of our youth will have been forgotten." Whether or not each of us feels that way, Harrison's well-written paper continues, "That has happened with Ex parte Young, a central case with respect to sovereign immunity and constitutional remedies." Here's the abstract:
Ex parte Young does not represent an exception to ordinary principles of sovereign immunity, it does not employ a legal fiction, it does not imply a novel cause of action under the Constitution or other federal law, and it does not create a paradox by treating officers as state actors for one purpose and private persons for another. All those bits of conventional wisdom are wrong for the same reason: Young was about a traditional tool of equity, the injunction to restrain proceedings at law, or anti-suit injunction. By seeking an anti-suit injunction, a potential defendant at law can become a plaintiff in equity and present a defense in an affirmative posture. Asserting defenses against the government, like the railroads' constitutional defenses at issue in Young, does not offend sovereign immunity, so it does not require a fiction to cover up a violation of sovereign immunity. Anti-suit injunctions have long been a standard tool of equity and so in approving one the Court in Young did not recognize a novel cause of action applicable only to government officers, and for that reason did not encounter a paradox. This article elaborates on the argument just described, discusses the extent to which the opinion in Ex parte Young reflects the fact that it involved an anti-suit injunction, and briefly considers the contemporary implications of this way of understanding this foundational case.

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