Ex Parte Young
John C. Harrison
University of Virginia School of Law
July 12, 2007
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.
Number of Pages in PDF File: 35
Date posted: July 19, 2007
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