Ann Woolhandler (University of Virginia School of Law) & Michael G. Collins (University of Virginia School of Law) have posted The Un-Mysterious Case of Ex parte Young (15 pages) on SSRN. Here is the abstract:
In a recent article, The Ex parte Young Cause of Action: A Riddle, Wrapped in a Mystery, Inside an Enigma, Judge Oldham, Adam Steene, and John Tienken question whether Ex parte Young should exist. The critique at once purports to be originalist and current. On the one hand, the Authors argue that the legitimacy of Ex parte Young should be measured by English Chancery practice as of 1789: “In 1789, a bill like the one the railroad shareholders filed would have been dismissed for failure to state a claim . . ..” On the other hand, they argue that Young is inconsistent with the Supreme Court’s modern cases disfavoring judicially-created rights of action. Such recent developments “make it far from clear whether the Supreme Court would recognize the Ex parte Young cause of action if the Court considered the case for the first time today.”
This Essay takes issue with the Authors’ conclusions as to the import of history and modern case law. And it takes issue with their skipping the middle—particularly nineteenth century federal equity practice that preceded Ex parte Young. Early judiciary acts were not meant to bind federal equity practice to 1789. Throughout the nineteenth century, moreover, the federal courts enjoined the enforcement of unconstitutional laws. The Court’s modern dislike of implied statutory actions and constitutional damages actions does not undermine the constitutional necessity of injunctions to remedy ongoing constitutional violations.
Also recently posted on SSRN by the same authors: On Making Matters Worse (22 pages). Here is the abstract:
For a time, the modern Court provided greater structure to the law of personal jurisdiction. Justice Ginsburg in Daimler v. Bauman defined limits to general jurisdiction for corporations, confining it primarily to the state of incorporation and principal place of business. And Justice Kennedy’s opinion in J. McIntyre Machinery v. Nicastro systematized prior views of specific jurisdiction in terms of targeting versus foreseeability. The Court undermined such progress toward clarity with its decision in Mallory v. Norfolk Southern Railroad. The Court approved an assertion of jurisdiction under Pennsylvania’s statute requiring submission to general jurisdiction by foreign corporations that register to do in-state business. Justice Gorsuch’s Mallory opinion relied heavily on the Supreme Court’s 1917 decision in Pennsylvania Fire Insurance Co. v. Gold Mining & Milling Co., and he emphasized pre-International Shoe support for consent as a basis for jurisdiction. Gorsuch found backing for his originalist views in the work of Professor Stephen Sachs.
Part I of this Essay considers the Court’s reliance on Pennsylvania Fire, and finds it unjustified. As Justice Barrett detailed, the weight of authority was against general jurisdiction by registration. What is more, dormant Commerce Clause decisions had significantly undermined the decision. Part II addresses the purported originalist justification for retaining Pennsylvania Fire by addressing the work of Professor Sachs. While the categories of presence and consent had traditional support, it is only by applying those categories at a high level of generality that one can claim support for the Mallory result. Part III addresses why the dormant Commerce Clause should disallow general jurisdiction by registration. Part IV addresses whether Justice Gorsuch’s use of presence and consent would represent improvements over the International Shoe framework.
Posted at 6:20 AM