Why use Ex Parte Young Today independently of sect. 1983
DLaycock at law.utexas.edu
Mon Nov 22 10:49:27 PST 2004
The replies of Howard Wasserman and Michael Masinter are dead on; 1983
has no plain statement overriding sovereign immunity. This absence
applies to injunctions as well as to damages.
Alabama v. Pugh (1978) is a wonderful little case for illustrating to
students the formalisms here. It was a prison injunction; they granted
cert and summarily struck Alabama from the case caption and the
injunction, leaving the injunction in place against all the prison
officials. You can enjoin the official, but you can't enjoin the state
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
From: Jonathan Miller [mailto:jmiller at swlaw.edu]
Sent: Monday, November 22, 2004 12:07 PM
To: Douglas Laycock
Cc: conlawprof at lists.ucla.edu
Subject: Re: Why use Ex Parte Young Today independently of sect. 1983
Thanks, your response is an excellent way of explaining how Ex parte
Young and section 1983 work together. -- Just one minor additional
point comes to mind. Given that section 1983 is authorized under the
14th Amendment, I assume that injunctive relief under section 1983 could
be justified on that basis as well, with no need to refer to Ex Part
Young. But I assume that since most of our section 1983 caselaw is post
Ex parte Young anyway, there has never been any reason to deal with the
Douglas Laycock wrote:
>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
>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.
>University of Texas Law School
>727 E. Dean Keeton St.
>Austin, TX 78705
> 512-232-1341 (phone)
> 512-471-6988 (fax)
>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.
>Professor of Law
>Southwestern University School of Law
>675 S. Westmoreland Ave.
>Los Angeles, CA 90005-3992
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Professor of Law
Southwestern University School of Law
675 S. Westmoreland Ave.
Los Angeles, CA 90005-3992
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