Why use Ex Parte Young Today independently of sect. 1983

[Douglas Laycock]

This is a remedies question.  1983 and Ex parte Young address different
issues and are relevant at different conceptual stages of the
litigation.  1983 creates a cause of action; Ex parte Young creates a
way around sovereign immunity.  Plaintiff needs both.  1983 does not
override immunity; it does not even create a cause of action against the
state itself.  Will v. Michigan Dept. of Police.  Injunctions against
state officials to control state policy are possible under 1983 only
because Ex parte Young holds that suits for such injunctions are not
suits against the state.

Similarly, Ex parte Young does not create a cause of action.  You don't
sue a defendant for Ex parte Young, or for violating Ex parte Young; you
sue a defendant for allegedly violating some applicable substantive law.
1983 creates a general cause of action for violations of federal law
conducted under color of state law.  With respect to federal officials,
the cause of action is implied directly from the substantive
constitutional provision, without any statute equivalent to 1983, and Ex
parte Young evades sovereign immunity in the same way as with respect to
the states.  Perhaps the courts could imply causes of action against
state officials in the same way, and many of the older cases just assume
the existence of a cause of action for injunctive relief, without
citation to 1983 or anything else.  But as the Court has become more and
more hostile to implied rights of action, 1983 is the answer:  Congress
created the cause of action.

It does not make any sense to have one claim under 1983 and one claim
under Ex parte Young.  But if the 1983 claim were for damages (against a
local government or against an official in his personal capacity), and
the Ex parte Young claim were for an injunction (against an official in
his official capacity), then this might just be an awkward way of
labeling a sensible distinction.  





Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Jonathan Miller
Sent: Thursday, November 18, 2004 1:14 PM
To: conlawprof at lists.ucla.edu
Subject: Why use Ex Parte Young Today independently of sect. 1983

I only offer the briefest coverage of section 1983 in Constitutional
Law, but a student asked me after class yesterday why anyone would
resort to Ex Parte Young today given the availability of injunctions
against a State officer under section 1983.  The answer that I gave was
that section 1983 today is essentially read with the gloss of Ex Parte
Young saying injunctive relief is available -- that there would not be
any situation today where one would recur to Ex Parte Young because
section 1983 was unavailable.  Section 1983 today covers any situation
for which Ex Parte Young might once have been required and much more.  
-- But I have also seen pleadings that have separate counts labeled Ex
Parte Young and 1983, which makes no sense given my answer.

Is there any reason to think that I was wrong and that Ex Parte Young by
itself covers some situations not covered by section 1983 read together
with Ex Parte Young to allow injunctive relief under 1983?

Please feel free to reply off list if, as is likely, this question has
little theoretical interest.

Thanks,

Jonathan Miller

--
Jonathan Miller
Professor of Law
Southwestern University School of Law
675 S. Westmoreland Ave.
Los Angeles, CA 90005-3992
Tel. 213-738-6784


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