Night and Day: Coeur D'Alene, Breard, and the Unraveling of the Prospective-Retrospective Distinction in Eleventh Amendment Doctrine
Carlos Manuel Vazquez
Georgetown University Law Center
Georgetown Law Journal, Vol. 87, No. 1, pp. 1-101, 1998
Georgetown Public Law Research Paper No. 12-099
The Supreme Court's decision in Edelman v. Jordan has been read to establish a distinction between suits seeking prospective relief from a state official's violation of federal law (which are not barred by the Eleventh Amendment under Ex parte Young) and suits seeking retrospective relief from the state (which are barred by the Eleventh Amendment, even if the officer is the defendant). Commentators and the lower courts have long had difficulty understanding and applying the distinction. Until recently, the principal effect of the Edelman line of cases has been to bar suits seeking damages and similar monetary relief from the state. In two recent Supreme Court cases, Idaho v. Coeur d'Alene Tribe of Idaho and Breard v. Greene, the Supreme Court has denied relief on Eleventh Amendment grounds in suits seeking nonmonetary relief that appeared to be prospective in nature. In different ways, these decisions invite a reconsideration of the prospective-retrospective distinction.
This article argues that the exception to Ex parte Young recognized in the Edelman case originally extended only to retrospective monetary relief. Gradually and without explanation, this exception was extended in dicta to encompass all retrospective relief. A rule comprehensively barring retrospective relief but permitting prospective relief is problematic in at least two ways. First, the concepts of prospectivity and retrospectivity are highly indeterminate. For example, the latter concept is amenable to the construction given to it in the Breard case, in which it was held to encompass a request for an injunction halting an allegedly unlawful execution scheduled to take place in the future. Ex parte Young itself demonstrates the error of this counterintuitive holding, but what is striking is the plausibility of the holding as an application of the Supreme Court's test for distinguishing prospective from retrospective relief. Second, a comprehensive prospective-retrospective test cannot be squared with the results the Supreme Court has reached. This article argues that the Edelman exception to Ex parte Young should be confined to its original scope. A rule excluding from the Ex parte Young exception only suits seeking retrospective monetary relief would explain the decided cases, would be easily administrable, and would better cohere with other aspects of the Court's jurisprudence in this area than would a comprehensive prospective-retrospective test or other possible alternatives.
Note: This is a description of the article and is not the actual abstract.
Number of Pages in PDF File: 102
Keywords: Eleventh Amendment, Supreme Court, sovereignty, monetary relief, litigation, Supremacy Clause, prospective-retrospective distinction
JEL Classification: K30, K39, K00Accepted Paper Series
Date posted: December 3, 1998 ; Last revised: August 22, 2012
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