Ex Parte Young and the Uses of History

27 Pages Posted: 20 Jun 2011 Last revised: 31 Aug 2011

David L. Shapiro

Harvard Law School

Multiple version iconThere are 2 versions of this paper

Date Written: May 24, 2011

Abstract

Ex parte Young, an iconic decision that recently celebrated its centennial, was not very well-received at birth but most scholars, now and in the recent past, agree that the case was correctly decided. Yet the range of justifications for the result, and the analyses of its implications, are strikingly diverse. (The disagreements about its significance are exemplified by the three opinions in the Supreme Court’s recent decision in Va. Office for Prot. & Advocacy v. Stewart.)

How can such a range of views exist about so famous and esteemed a decision – a debate that extends to such matters as its rationale, its novelty, and even the proper characterization of its holding, the lessons it teaches about state-federal relations, and the proper role of the federal courts? And what, if anything, does this tell us about the nature of legal scholarship? These are the questions addressed in this article. Briefly stated, the conclusions reached are that over-reading of the case by scholars and courts has led to a backlash in which the case has been undervalued, and that arguments about what the case “really” stands for tend to mask more important questions about both the substance and the process of constitutional interpretation.

Suggested Citation

Shapiro, David L., Ex Parte Young and the Uses of History (May 24, 2011). NYU Annual Survey of American Law, Vol. 67, p. 69, 2011; Harvard Public Law Working Paper No. 11-14. Available at SSRN: https://ssrn.com/abstract=1868403

David L. Shapiro (Contact Author)

Harvard Law School ( email )

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