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Judge Andrew Oldham & Adam Steene: The Ex Parte Young Cause of Action
Michael Ramsey

Judge Andrew Oldham (United States Court of Appeals, Fifth Circuit) & Adam Steene (independent) have posted The Ex Parte Young Cause of Action: A Riddle, Wrapped in a Mystery, Inside an Enigma (27 pages) on SSRN.  Here is the 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.

As the article notes (FN2), "[p]ortions of this article are drawn from Judge Oldham’s concurrence in Green Valley Special
Utility District v. City of Schertz, 969 F.3d 460 (5th Cir. 2020) (en banc)."