The common law origins of ex parte young

James E. Pfander, Jacob P. Wentzel

Research output: Contribution to journalArticlepeer-review

1 Scopus citations

Abstract

Important recent scholarship has come to question the origins and legitimacy of the Ex parte Young proceeding, a cornerstone of modern constitutional litigation. Deploying a historically inflected methodology that we call equitable originalism, scholars and jurists have sought to confine federal equity power to the forms of equitable intervention common in the English High Court of Chancery at the time judicial power was first conferred on the lower federal courts in 1789. Such limits have led some to question the power of federal courts to grant affirmative Ex parte Young relief and to issue 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 reflected the perceived adequacy of the common law writs—mandamus, certiorari, and prohibition—as tools for oversight of the administrative state. Over time, equity adapted. Ex parte Young confirms a nineteenth-century transition in which the injunction absorbed the lessons of the common law writs and evolved into the primary mode of judicial control of administrative action. Equitable originalism could reverse such adaptation, returning equity to its private law eighteenth-century form and undermining modern constitutional remediation.

Original languageEnglish (US)
Pages (from-to)1269-1360
Number of pages92
JournalStanford Law Review
Volume72
Issue number5
StatePublished - 2020

ASJC Scopus subject areas

  • Law

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