Ex parte Young

Stanford Law Review

Volumn 60, Issue 4, 2008, Pages 989-1022

  Harrison, John ^a,b  

^a UNIVERSITY OF VIRGINIA   (United States)

^b U S DEPARTMENT OF STATE   (United States)

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EID: 42349108106     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (173)

1. Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 798-99 (1824) (argument of Mr. Clay for appellee).
2. 209 U.S. 123 (1908).
3. RICHARD C. CORTNER, THE IRON HORSE AND THE CONSTITUTION 144-45 (1993).
4. 172 U.S. 516 (1899).
5. CORTNER, supra note 3, at 145. Fitts had held an officer suit barred by sovereign immunity and could be read to have rested on the fact that the defendant had no specific duty to enforce the law in question.
6. See id.
7. Id.
8. Id. at 145-46. "Under these circumstances, a fragile peace on railroad rates appeared to have been secured in Minnesota."
9. Id. at 146.
10. One such shareholder was John S. Kennedy of New York, who owned about $17,000,000 in shares of railroads subject to the new rates. Id. at 155.
11. Id. at 155-57. As Cortner notes, pursuant to the federal equity rules as they then stood, the shareholders first made demands on management that the corporations not comply. Only when those demands were rejected were the shareholders free to sue to assert their corporations' rights against management.
12. Id. at 156.
13. See Perkins v. N. Pac. Ry. Co., 155 F. 445 (C.C.D. Minn. 1907). One of the suits was Kennedy's proceeding against the Great Northern, in which he was represented by Pierce Butler.
14. CORTNER, supra note 3, at 156.
15. CORTNER, supra note 3, at 157. Young apparently felt sandbagged by the derivative suit, especially because he had returned to Minnesota's Treasury much of a special appropriation that had been passed for his office in anticipation of extensive litigation over the rate reduction.
16. Id. at 157-58.
17. Id. at 161-62.
18. Perkins, 155 F. at 455-56. Judge Lochren reasoned that the cumulative effect of the rates was likely to be confiscatory and that the commodity rates should be suspended as they, unlike the other two, had never gone into effect, his temporary restraining order having been issued before their effective date.
19. Id.
20. CORTNER, supra note 3, at 170.
21. Id.
22. Id. at 170-75.
23. Id. at 175-76.
24. 209 U.S. 123 (1908).
25. Id at 143-45.
26. Justice Peckham wrote: We hold, therefore, that the provisions of the acts relating to the enforcement of the rates, either for freight or passengers, by imposing such enormous fines and possible imprisonment as a result of an unsuccessful effort to test the validity of the laws themselves, are unconstitutional on their face, without regard to the question of the insufficiency of those rates. Id. at 148.
27. Id. at 149-63.
28. 2 U.S. (2 Dall.) 419 (1793).
29. 172 U.S. 516 (1899).
30. Young, 209 U.S. at 163.
31. Id. at 163-64.
32. Id. at 164-66.
33. Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 269 (1997).
34. Id. (glossing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)).
35. "[I]n the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. . . . This jurisdictional bar applies regardless of the nature of the relief sought." Pennhurst, 465 U.S. at 100 (citations omitted).
36. Id. at 101 (quoting Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464 (1945)).
37. Id. at 102 (parallel citation omitted).
38. Id. at 105.
39. Id. at 114 n.25. The description of the Young fiction in Pennhurst is embedded in the majority's response to Justice Stevens' dissent, which the majority criticizes as taking the Young fiction as if it were fact. "The dissent's method is merely to take this fiction to its extreme."
40. Id.
41. That is also the view of leading commentators. "However desirable the result in Ex parte Young, the Court's theory rests on a fictional tour de force." PETER W. LOW & JOHN C. JEFFRIES, JR., FEDERAL COURTS AND THE LAW OF FEDERAL-STATE RELATIONS 937 (5th ed. 2004).
42. 22 U.S. (9 Wheat.) 738 (1824).
43. 17 U.S. (4 Wheat.) 316 (1819).
44. Osborn, 22 U.S. (9 Wheat.) at 739-44.
45. Id. at 839.
46. Id. at 841-42.
47. "The use of injunctions to stay actions at law was almost coeval with the establishment of the chancery jurisdiction. Without this means of interference to protect the rights of its suitors, the court of chancery could never have established, extended, and enforced its own jurisdiction." 4 JOHN NORTON POMEROY, JR., EQUITY JURISPRUDENCE § 1360 (3d ed. 1905).
48. Pomeroy wrote : It is no exaggeration to say that, during its formative periods, the equitable jurisdiction was built up through the instrumentality of the injunction restraining the prosecution of legal actions, where the defendants sought the aid of chancery, which alone could take cognizance of the equities that would defeat a recovery at law against them. Id. As Pomeroy explained, it was not enough for the plaintiff in equity to show a valid legal defense; there had to be some reason that simply raising the defense at law was not possible or was not enough.
49. Id. § 1361. For example, a defense that was recognized only by the equity courts could give rise to an injunction against proceeding at law, as the remedy at law was inadequate because non-existent.
50. Id. § 1362. Commentators well understood that suits to enjoin proceedings at law were a substitute for a defense at law, and so were available only when the legal remedy was not enough. According to Bates, the injunction to restrain proceedings at law was not available where the "defendant in the action at law and plaintiff in the suit in equity has a perfect and complete legal defense, unless there are special circumstances which constitute a ground of equity and show that he cannot make his legal defense available at law."
51. CL. BATES, FEDERAL EQUITY PROCEDURE § 540 (1901).
52. Equity courts and commentators on equity were at pains to point out that equity never interfered with other courts. The injunction ran, not to the law court itself, but to the potential party in the law court. There does not seem to be any just foundation for the opposition of the Courts of Common Law to this [equitable] jurisdiction. A writ of injunction is in no just sense a prohibition to those courts in the exercise of their jurisdiction. It is not addressed to those courts. It does not even affect to interfere with them. The process, when its object is to restrain proceedings at law, is directed only to the parties. 2 JOSEPH STORY, EQUITY JURISPRUDENCE § 875 (Melville M. Bigelow ed., 13th ed., Boston, Little, Brown, and Co. 1886) (footnote omitted).
53. Pomeroy wrote: [E]quity will enjoin the action at law, and will determine the whole cause, whenever the legal remedy is inadequate; and the legal remedy is deemed to be inadequate if the ends of justice would not be satisfied by a mere judgment for the defendant in the action at law, but would require that some distinctively equitable relief, such as a cancellation or a reformation of the instrument sued upon, be conferred upon him. If any affirmative equitable relief is necessary to a full settlement of the controversy, and to a complete protection of the defendant's rights, a court of equity will interfere, entertain a suit for such relief, and enjoin the action at law. 4 POMEROY, supra note 40, § 1363, at 2706.
54. Plaintiffs at law also sometimes needed to resort to equity for an injunction against raising a defense. If a fraudulently obtained agreement such as a release would constitute a defense at law, the plaintiff at law could first sue in equity and obtain an injunction against raising the defense.
55. "There are numerous instances where a defendant has a good defense to an action at law, which, by mistake, accident or fraud of the other party, he is prevented from making. In all these cases equity will interpose, and make the defense available." JOHN WILLARD, A TREATISE ON EQUITY JURISPRUDENCE 446 (Platt Potter ed., 2d ed., New York, Banks & Brothers 1875). The section in which that passage appears is titled, "Of Injunctions to Restrain Proceedings in Other Courts."
56. Id. at 441.
57. 2 STORY, supra note 42, §§ 877-883a.
58. 4 POMEROY, supra note 40, § 1364, at 2708.
59. 80 U.S. (13 Wall.) 616 (1871).
60. Id. at 623.
61. Slightly earlier in the opinion, the Court had explained: Equity will rescind or enjoin such instruments [obtained by fraud] where they operate as a cloud upon the title of the opposite party, or where the instruments are of a character that the vice in the inception of the same would be unavailing as a defence by the injured party if the instruments were transferred for value into the hands of an innocent holder. . .. . . . [B]ut the rule in the Federal courts is universal, that if the defendant has a good defence at law, and the remedy at law is as perfect and complete as the remedy in equity, an injunction will not be granted. Id. at 622.
62. See Wehrman v. Conklin, 155 U.S. 314, 321-22 (1894).
63. Id. at 322.
64. Id. at 325-29.
65. See also Deweese v. Reinhard, 165 U.S. 386, 389 (1897) (noting that a suit to enjoin action in ejectment cannot be sustained where the equity plaintiff has a full and adequate defense at law).
66. EDWIN BORCHARD, DECLARATORY JUDGMENTS 186-87 (1934).
67. Id. at 170-71.
68. Id. at 247.
69. 19 U.S. (6 Wheat.) 264 (1821).
70. The origins of sovereign immunity in principles that today would be called personal jurisdiction, and the continuing influence of that understanding of the doctrine, are set out in Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559 (2002).
71. "Justice Peckham acknowledged that the officer could be sued only if personally liable, but asserted without explanation that the threat of suit under an unconstitutional statute was 'equivalent to any other threatened wrong or injury to the property of the plaintiff.'" DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY, 1888-1986, at 52 (1990)
72. (quoting Exparte Young, 209 U.S. 123, 158 (1908)).
73. "But even today only malicious prosecutions are actionable, and at the time of Young the tort had apparently not been extended to civil cases at all." Id. at 52 n. 174.
74. Ex parte Young, 209 U.S. at 163-65. Explaining why a court of equity was better suited to determine the question whether the rates were confiscatory, Peckham expressed no doubt that the point could also be raised by way of defense. We do not say the company could not interpose this defense in an action to recover penalties or upon the trial of an indictment . . . , but the facility of proving it in either case falls so far below that which would obtain in a court of equity that comparison is scarcely possible.
75. Id. at 165 (citation omitted).
76. Osborn and the other defendants below, appellants in the Supreme Court, admitted their liability at law, and made that an argument against the injunction, claiming that damages against them personally would be adequate relief. Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 839 (1824). The Court agreed that damages could be calculated in a legal action by the Bank against the officers, but thought equitable relief nevertheless to be superior.
77. Id. at 841-42;
78. see also id. at 843 ("[T]he appellants acknowledge that an action at law would lie against the agent [of a principal who could not be sued], in which full compensation ought to be made for the injury.").
79. Young, 209 U.S. at 167.
80. Id. at 167-68.
81. Id. at 168.
82. 135 U.S. 1 (1890).
83. Neagle did not argue that the California murder statute under which he had been charged was unconstitutional. He argued that federal law authorized him to fire on Terry and so provided him with a good defense in a murder prosecution.
84. The Court understood that the habeas proceeding was being used to try issues that otherwise would have been adjudicated in Neagle's criminal trial in California court. It rejected California's argument that habeas was therefore an inappropriate form of relief: To the objection made in argument, that the prisoner is discharged by this writ from the power of the state court to try him for the whole offence, the reply is, that if the prisoner is held in the state court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as marshal of the United States, and if in doing that act he did no more than what was necessary and proper for him to do, he cannot be guilty of a crime under the law of the State of California. When these things are shown, it is established that he is innocent of any crime against the laws of the State, or of any other authority whatever. There is no occasion for any further trial in the state court, or in any court. The Circuit Court of the United States was as competent to ascertain these facts as any other tribunal, and it was not at all necessary that a jury should be impanelled to render a verdict on them. Neagle, 135 U.S. at 75.
85. 209 U.S. 205 (1908).
86. Id. at 210.
87. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
88. Ex parte Young, 209 U.S. 123, 159 (1908). This passage was a response to an argument formulated in the preceding paragraph: It is contended that the complainants do not complain and they care nothing about any action which Mr. Young might take or bring as an ordinary individual, but that he was complained of as an officer, to whose discretion is confided the use of the name of the State of Minnesota so far as litigation is concerned, and that when or how he shall use it is a matter resting in his discretion and cannot be controlled by any court.
89. Id. The plaintiffs argued that the effect of the injunction was on Minnesota, not Young. Justice Peckham denied that, replying that Minnesota was not present, there being no valid exercise of its governmental power to be interfered with.
90. Id. at 167.
91. 123 U.S. 443 (1887).
92. young, 209 U.S. at 152.
93. Id. at 152-53.
94. Id. at 158-59.
95. The claim that the fundamental distinction underlying Ex parte Young is between affirmative and negative relief rests on good authority. "Lower federal courts may prohibit state officers, in their individual capacity, from taking action under color of office in violation of law. But an action to compel the performance of an affirmative act would encounter, ordinarily, the bar of the Eleventh Amendment." Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 516 (1954) (footnote citing Ex parte Young omitted).
96. The year 1907, in which "[a] veritable flood of legislation" limiting railroad rates was adopted across the country, turned out to be a year of "rancorous confrontation involving the states, the railroads, and the federal judiciary." CORTNER, supra note 3, at 135. In September, Young spoke at a meeting of state attorneys general called by the Attorney General of Missouri "to address the issue of federal judicial interference with state regulatory policies."
97. Id. at 172. He said, "[W]e are . . . confronted in the struggle now going on between the corporations and the states, with a few of the incumbents of the inferior federal courts who seem to entirely misunderstand the relations between the two governments, and the extent of their own powers, and to be imbued with the idea that from some source there was committed to their charge, authority, whenever it seemed to them necessary, to prevent the exercise by the states of their constitutional powers."
98. Id.
99. This is true of cases that rely on Young from the time it was decided through Edelman v. Jordan, 415 U.S. 651 (1974).
100. Hopkins v. Clemson Agrie. Coll., 221 U.S. 636, 642 (1911).
101. Id. at 644.
102. 342 U.S. 299, 304 (1952).
103. Id. at 304 n.15. That footnote is attached to the sentence that cites Exparte Young. The Court in Redwine distinguished In re Ayers, treating the earlier case as involving a request for specific performance.
104. Id. at 305. Ayers and Redwine are interesting borderline cases, because they involve contractual obligations by States not to impose taxes. Whether to regard a suit against the collection of a tax as one involving wholly negative relief, or as one for specific performance of the contract granting the tax exemption, is a nice question.
105. Many cases rely on Young to authorize equity suits to restrain the collection of taxes. As far as I can determine, the injunctions all ran against physical seizures and the institution of collection proceedings in court. In a few cases not involving taxes it is not entirely clear that the enforcement to be enjoined was limited to physical acts that constituted private wrongs and enforcement proceedings, but it is also not clear that it was not. The case that seems most borderline to me is Sterling v. Constantin, 287 U.S. 378, 403-04 (1932) (enjoining the Governor of Texas from reducing oil production).
106. The only case I have found prior to Edelman in which the Court relied on Young to approve an injunction that clearly went beyond physical acts and bringing enforcement proceedings is Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68 (1963).
107. There the Court approved an injunction against a Rhode Island anti-obscenity commission that listed books as obscene and that could recommend, but could not itself bring, enforcement proceedings. The Court cited Young for the proposition that the commission's decisions were state action. (It is possible that the Justices believed that the commission's statements were the private wrong of defamation, but there is no indication of that.) Some Justices, writing for themselves, apparently regarded the license of Young as extending beyond physical invasions and the institution of proceedings. Justice Black, dissenting in Colegrove v. Green, 328 U.S. 549, 568 (1946), asserted that the relief requested, which involved voting districts, could be granted because the suit was against the officer and not the State for purposes of sovereign immunity and relied on Young.
108. For example, Justice Black, writing for the Court in Griffin v. County School Board, 111 U.S. 218 (1964), put it this way: The complaint, however, charged that state and county officials were depriving petitioners of rights guaranteed by the Fourteenth Amendment.
109. It has been settled law since Ex parte Young, 209 U.S. 123 (1908), that suits against state and county officials to enjoin them from invading constitutional rights are not forbidden by the Eleventh Amendment.
110. Id. at 228 (parallel citations omitted).
111. Invasions of constitutional rights include but are not limited to enforcement actions under invalid statutes. But as Justice Rehnquist pointed out in Edelman, the relief in Griffin actually involved orders to county officials, who for many decades have not been protected by state sovereign immunity. Edelman v. Jordan, 415 U.S. 651, 667 n.12 (1974).
112. Boise Artesian Hot & Cold Water Co. v. Boise City, 213 U.S. 276, 285 (1909).
113. 258 U.S. 495, 512 (1922).
114. 307 U.S. 66, 77 &n. 18 (1939).
115. 401 U.S. 37 (1971).
116. Id. at 46.
117. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104-05 (1984).
118. The idea that Young employed a legal fiction probably came into circulation mainly due to Kenneth Culp Davis, with some help from Charles Alan Wright. In 1958 Davis wrote in his treatise: Why did the Court say that an officer who acts under an unconstitutional statute is "stripped of his official or representative character"? Is he not still an officer when he is obeying what the State Legislature has officially enacted? Is he not still acting in a representative character when he prosecutes a violator of the enactment? The Court in Ex parte Young was not confused about these questions; it knew the answers. It was deliberately indulging in fiction in order to find a way around sovereign immunity. 3 KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE § 27.03, at 553 (1958). A few years later Professor Davis reiterated the point in an article.
119. Kenneth Culp Davis, Suing the Government by Falsely Pretending to Sue an Officer, 29 U. CHI. L. REV. 435, 437 (1962). The fiction theory became hornbook law in 1963 when Professor Wright adopted it, citing and quoting Davis. "There is no doubt that the reality is as Justice Harlan stated it [in Young], and that everyone knew that the Court was engaging in fiction when it regarded the suit as one against an individual named Young rather than against the state of Minnesota."
120. CHARLES ALAN WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS § 48, at 159 (1963). The same language appears in the current, sixth edition. The first three court of appeals cases that characterize Young as resting on a fiction all cite Davis. Bd. of Trs. of Ark.
121. A & M Coll. v. Davis, 396 F.2d 730, 732-33 (8th Cir. 1968);
122. La. State Bd. of Educ. v. Baker, 339 F.2d 911, 914 (5th Cir. 1964);
123. Kennedy v. Rabinowitz, 318 F.2d 181, 182 (D.C. Cir. 1963).
124. The first case in which the Supreme Court said that Young rests on a fiction was Pennhurst, 465 U.S. at 105. Justice Powell referred in passing to the "fiction" of Ex parte Young in his concurring opinion in Monell v. Department of Social Services, 436 U.S. 658, 712 (1978) (Powell, J., concurring).
125. U.S. CONST, amend. XIV.
126. According to Wright, "The fiction has its own illogic. The Fourteenth Amendment runs only to the states; in order to have a right to relief under the amendment the plaintiff must be able to show that state action is involved in the denial of his rights." WRIGHT, supra note 94, § 48, at 159.
127. In Aldens, Inc. v. Packel, 524 F.2d 38 (3d Cir. 1975), the court of appeals confronted a tricky problem when Packel, Attorney General of Pennsylvania and defendant in an officer suit, sought to bring a counter-claim on behalf of the State. If the defendant was the Attorney General himself and not the State, how could a non-party assert its claim against the plaintiff? The Third Circuit formulated the question as a choice between the Eleventh Amendment fiction, according to which Packel was the defendant and Pennsylvania was not, and the Fourteenth Amendment fiction, which was the other way around. For purposes of Rule 13 of the Federal Rules of Civil Procedure, it adopted the Fourteenth Amendment side of the paradox.
128. Id. at 50-51.
129. David Currie explained the connections among the fiction, the paradox, and the well-pleaded complaint rule. As Perkins did not involve diverse parties, it had to come into federal court under the federal question jurisdiction. "To modern eyes this theory seems obviously correct, since the complaint alleged that the defendant threatened to deprive the plaintiff of property without due process of law. In explaining why the suit was not one against the state, however, the court enunciated a thesis wholly inconsistent with this approach." CURRIE, supra note 60, at 53.
130. Currie then quoted the passage from Young explaining that Young was stripped of his official capacity. He continues: If the officer was "stripped of his official. .. character," he could not violate the due process clause, which applies only to state action. Peckham did not attempt to justify this contradiction. The alternative argument that the fourteenth amendment was relevant only to defeat the defense of official authority would have been insufficient to sustain federal jurisdiction under the rule of Louisville & Nashville Railway v. Mottley, which held that the federal nature of the case must appear from the plaintiffs statement of his own claim.
131. Id. (footnotes omitted).
132. That appears to have been Professor Davis' view. After rhetorically asking whether a state officer enforcing an unconstitutional statute is still an officer, he wrote: The Court in Ex parte Young was not confused about these questions; it knew the answers. It was deliberately indulging in fiction in order to find a way around sovereign immunity. It knew that the injunction against the attorney general was in truth a means of preventing the state from enforcing the statute. The reality is all too obvious that the suit was in practical effect against the state. 3 DAVIS, supra note 94, § 27.03, at 553.
133. Courts too sometimes take the view that Young allowed a suit against the State for policy reasons, and called it one against the officer for unstated reasons. In Neal v. Georgia, 469 F.2d 446 (5th Cir. 1972), a case involving the handling of prison inmates' mail, the court dismissed Georgia as a defendant but approved relief against officers, relying on Young. "This may be a fiction, but like a lot of other legal fictions it is useful."
134. Id. at 448. "[I]t is a fiction necessary for the preservation of federal constitutional rights."
135. Id.
136. This understanding of Young is intimated through questions in the first edition of the Hart and Wechsler casebook. In a note on that case, the editors ask: What was the source of the "general law" . . . under which the defendants in Young and [Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299 (1952)] were judged to have been guilty of "wrongful individual action"? Was it state law or federal? If federal, was it a body of law simply reflecting generally accepted principles of liability of the traditional common law? Or a body of unwritten federal law which the Supreme Court is newly developing in the light of the felt exigencies of effective constitutional administration? HENRY M. HART, JR. & HERBERT WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 818 (1953). Although Hart and Wechsler mean to imply the latter, if I am right the former is the correct answer. The passage continues by alluding to the well-pleaded complaint rule: "In Young, Redwine, and many other similar cases, diversity of citizenship was lacking. This makes it plain, does it not, that the operative law creating the cause of action was federal?"
137. Id. Again, my view is that it is not plain, nor even true, that the wellpleaded complaint rule implies a federal cause of action in the anti-suit context, but Hart and Wechsler meant the contrary. They continued: Is it not plain also that in Ex parte Young the Court abandoned the use of general principles of common law liability as the measure of the content of this judicially created federal equitable cause of action? Should not the Redwine opinion in candor have acknowledged this and stated frankly that Ex parte Young had undermined the basis of In re Ayers?"
138. Id. Hart and Wechsler indicated that Young recognized or created a new federal cause of action found in the Constitution. As Young was the defendant, the implication is that the Constitution, which regulates States, imposes duties on officers with respect to their official conduct, duties enforced through the Young cause of action. The Court in Young concluded that the Attorney General's conduct was not in fact authorized, so the constitutional rule under which he was sued must have applied to purported official acts that were nevertheless in excess of authority.
139. Equity often provides additional remedies where the law already provides an entitlement to affirmative relief, a cause of action. Anti-suit injunctions, by providing affirmative relief on the basis of legal advantages that otherwise would be asserted as defenses, are not just an equitable remedy but an equitable cause of action. In that sense the principles that create them are like the Declaratory Judgment Act, 28 U.S.C. § 2201 (2000), which goes beyond providing a new remedy and authorizes parties who otherwise would be only defendants to become plaintiffs.
140. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
141. Guar. Trust Co. v. York, 326 U.S. 99 (1945).
142. When Young was decided the federal courts administered their own version of equity jurisprudence. It is very unlikely that judges regarded those equitable remedies and principles as federal law for purposes of Articles III and VI of the Constitution. Rather, equity was part of the general law, like the general commercial law relied on in Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842).
143. It was not the law of any one state, but neither did it support Article III jurisdiction or override state law through the Supremacy Clause. The best account of the old system is William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 HARV. L. REV. 1513 (1984). Today the Court very likely would regard an equitable remedy that protected a legal advantage derived from federal law as itself federal law. In that sense the Young anti-suit remedy is now a cause of action under federal law, but still not under the Constitution. 104. 234 U.S. 74(1914).
144. 241 U.S. 551, 555 (1916).
145. Hopkins v. Walker, 244 U.S. 486 (1917).
146. Id. at 490.
147. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950) (noting that well-pleaded complaint rule in federal declaratory judgment actions is applied by evaluating complaint in corresponding non-declaratory action).
148. It may seem that Young involved a change in equitable principles governing joinder of parties, even if it did not change sovereign immunity doctrine or recognize a new cause of action. In earlier cases in which plaintiffs sued officers in an attempt to obtain affirmative relief from States, the Court often expressed its conclusion in terms of proper parties. One response to such suits was to say that the officer was merely a nominal party but that the suit was really against the State, the real party in interest, and so could not proceed. See, e.g., Christian v. Atl. & N.C. R.R. Co., 133 U.S. 233, 245 (1890) (noting that in an officer suit to obtain corporate dividends payable to the State, the State is the "only party really concerned" and the suit is "virtually against her"). Another response was to say that the suit could not go forward because the State, an indispensable party, had not been sued.
149. See, e.g., id. at 246 (holding that the State, to whom dividends are owed, is "an indispensable party to any proceeding in equity in which its property is sought to be taken and subjected to the payment of its obligations"). On the question of joinder Young did not innovate, but followed Osborn, which in one part of the opinion analyzed the question as one of joinder. Osborn did not assert any personal claim to the Bank's property, as Young asserted no personal cause of action against the railroads. But Osborn was a proper defendant because relief could be afforded through a decree against him.
150. Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 843 (1824). Young was not the real party in interest, but would be subject to the decree and if he violated it would be, and in fact was, personally sanctioned. He was a proper party like Osborn. Ohio was not an indispensable party in Osborn because the decree against its officer, although it would in practice interfere with the State's claim on the property at issue, did not actually adjudicate that claim and bind the State.
151. Id. at 850-51. Assuming that the injunction against Young did not bind Minnesota legally, the fact that the decree had an adverse practical effect on the State was not enough to make it an indispensable party.
152. 154 U.S. 362 (1894).
153. 169 U.S. 466 (1898).
154. Ex parte Young, 209 U.S. 123, 153 (1908).
155. 106 U.S. 196 (1882).
156. Young, 209 U.S. at 152.
157. Id. at 153-54.
158. Id. at 159.
159. Id. at 152.
160. One commentator around the time of Young, annoyed by the tendency to use terminology appropriate to duty when talking about power, railed on the use of "illegal" to mean "ultra vires" when applying the corporate-law doctrine of that name. "One of the common forms of confusion in the use of the term arises from the failure of the courts to discriminate between the words 'illegal' and 'ultra vires.'" 3 SEYMOUR D. THOMPSON, COMMENTARIES ON THE LAW OF PRIVATE CORPORATIONS § 2767 (Joseph W. Thompson ed., 2d ed. 1909).
161. E.g., Edelman v. Jordan, 415 U.S. 651, 664 (1974) ("Ex parte Young was a watershed case.").
162. One current formulation of the principle of Young that is too broad according to the anti-suit interpretation of the case appears in Justice Souter's dissent in Idaho v. Coeur d Alene Tribe. When Congress has not so displaced the Young doctrine, a federal court has jurisdiction in an individual's action against state officers so long as two conditions are met. The plaintiff must allege that the officers are acting in violation of federal law . . . and must seek prospective relief to address an ongoing violation, not compensation or other retrospective relief for violations past. 521 U.S. 261, 298-99 (1997) (citation and footnote omitted).
163. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
164. Id. at 392-95.
165. 462 U.S. 367 (1983).
166. Hein v. Freedom from Religion Found., 127 S. Ct. 2553 (2007).
167. Bivens itself recognized a cause of action under the Fourth Amendment. Carlson v. Green, 446 U.S. 14 (1980), did so with respect to prison conditions under the Eighth Amendment's ban on cruel and unusual punishment.
168. The substantive differences between the ordinary-law tort and the Fourth Amendment as the Court had interpreted it was one ground for the decision in Bivens. 403 U.S. at 392-94.
169. First English Evangelical Lutheran Church v. County of L.A., 482 U.S. 304 (1987).
170. See Flast v. Cohen, 392 U.S. 83 (1968).
171. Flast was limited, or at least not extended, in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982),
172. and again in Hein v. Freedom from Religion Foundation, 127 S. Ct. 2553 (2007).
173. A constitutional restriction on power that nullifies some exercises of power is not limited to creating defenses. It can, as does the Contracts Clause in some instances, reinstate a cause of action that would exist but for the law that the Constitution nullifies. That is what happens when the Contracts Clause overrides debtor relief legislation. It enables creditors to assert claims that the debtor relief legislation purported to eliminate, but does not itself create those claims. In Bronson v. Kinzie, 42 U.S. (1 How.) 311 (1843), for example, Bronson sued to foreclose on a mortgage, Kinzie defended on the basis of an Illinois statute that expanded mortgage debtors' rights to redeem their property, and Bronson replied that the Illinois statute was invalid under the Contracts Clause, so that his right to foreclose was not impaired by it.