Friday, November 28, 2014

Purcell on Ex parte Young

Edward A Purcell, New York Law School, has posted Ex Parte Young and the Transformation of the Federal Courts, 1890-1917, which originally appeared in the University of Toledo Law Review 40 (2009).  Here is the abstract:
Ex parte Young is generally recognized as one of the Supreme Court’s most far-reaching decisions, and from its announcement in 1908 to the present judges and commentators have divided over its doctrinal pedigree and even its very legitimacy. Few, however, have doubted its importance as a doctrine of federal judicial power. This article seeks to cast additional light on Young’s origins and significance by placing it in its historical context and by showing that, as a practical matter, it was consistent with a wide range of other doctrines -- from technical procedural and jurisdictional rules to broad principles of constitutional law -- that the Supreme Court reshaped or developed anew in the years between 1890 and 1917. Taken together, those diverse doctrines transformed the role, reach, and power of the federal courts in American government. The article argues that Young can be most fully understood not in terms of common-law history or any purported doctrinal pedigree but rather in terms of the Supreme Court’s concerted effort to exert broader and more effective control over Congress and especially over the states and to ensure that the federal judiciary would be able to exercise an effective supervisory power over both.

1 comment:

Chad Squitieri said...

Interesting read. I especially enjoyed the discussion of Professor Woolhandler's and Professor Collin's "general constituinal law" (at 948). Professor Collin's discussion of Pumpelly, for example (Before Lochner, at 1289-91, 1305) seems to set up Professor Purcell's argument that their was room to be had.