The Ex Parte Young Cause of Action: A Riddle, Wrapped in a Mystery, Inside an Enigma

27 Pages Posted: 5 Oct 2022

See all articles by Andrew Oldham

Andrew Oldham

United States Court of Appeals, Fifth Circuit

Adam Steene

Independent

Date Written: August 30, 2022

Abstract

Ex parte Young’s bill in equity—a non-statutory equitable cause of action for relief from constitutional violations—is an odd beast, difficult to reconcile with historical practice or modern federal-courts jurisprudence.

At the Founding, federal courts understood Congress to have given them the power to recognize non-statutory equitable actions that could have been brought in the English Court of Chancery in 1789. The Ex parte Young cause of action, which developed from the slow creep of federal equitable common law, was not among those traditional equitable actions.

Measured against modern standards—standards that otherwise disfavor judicially-created causes of action—the Ex parte Young cause of action appears even more alien. And it is unclear how to square Young with federal statutes such as 42 U.S.C. § 1983 and the Declaratory Judgment Act.

We discuss each of these issues in turn. But first, let’s talk about Ex parte Young itself

Keywords: Federal courts, equity, ex parte young, cause of action, originalism, bivens, erie

Suggested Citation

Oldham, Andrew and Steene, Adam, The Ex Parte Young Cause of Action: A Riddle, Wrapped in a Mystery, Inside an Enigma (August 30, 2022). Available at SSRN: https://ssrn.com/abstract=4204132 or http://dx.doi.org/10.2139/ssrn.4204132

Andrew Oldham (Contact Author)

United States Court of Appeals, Fifth Circuit ( email )

United States

Adam Steene

Independent ( email )

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