Pfander and Wentzel on Ex parte Young

James E. Pfander and Jacob Wentzel, Northwestern University Pritzker School of Law, have posted The Common Law Origins of Ex parte Young, which is forthcoming in the Stanford Law Review:

Few doubt the significance of Ex parte Young as a cornerstone of modern constitutional litigation. But important recent scholarship has come to question the origins and legitimacy of the Ex parte Young proceeding, the primary mode by which individuals test the constitutionality of government action. Deploying a historically-inflected methodology that we call equitable originalism, scholars and jurists have sought to define federal equity power by reference to the forms of equitable intervention that were common in the English High Court of Chancery at the time judicial power was first conferred on the lower federal courts in 1789. Such investigations have led scholars and jurists to question the power of federal courts to grant affirmative Ex parte Young relief and to issue what have come to be known as national or universal injunctions.

This Article explores the Ex parte Young action and the power of federal courts to issue affirmative constitutional remedies in its name. It shows that equity’s traditional reluctance to intervene in public law matters was driven by the primacy and perceived adequacy of the common law writs—mandamus, certiorari, and prohibition—as tools for the judicial oversight of the eighteenth century administrative state. Over time, however, courts in the United States came to view the common law writs as imperfect modes of oversight. Displaying its customary flexibility, equity adapted. Ex parte Young confirms a nineteenth century transition away from the common law writs and toward the equitable injunction as the primary mode of judicial control of administrative action. Equitable originalism could rule out such adaptation, returning equity to its private law eighteenth-century form and undermining modern constitutional remediation.

--Dan Ernst