Volume 72, Number 3

June 1997

Seminole Tribe, the Eleventh Amendment, and the Potential Evisceration of Ex Parte Young

Vicki C. Jackson

In its 1996 decision, Seminole Tribe v. Florida, the Supreme Court, reversing itself, held that Congress lacks Article I power to abrogate states’ Eleventh Amendment immunity from suit in federal court. In exploring the decision’s ramifications, Professor Jackson contends that it may foreshadow more pervasive, and more troubling, shifts in the balance of power between state and federal governments, and among the federal, judicial,  legislative, and executive branches. In particular, the Court’s dubious reasoning in Seminole Tribe may have severe repercussions on the federal courts’ ability to enjoin state officials from violating federal Iaw in the future. The availability of such equitable relief, under the so-called Ex parte Young doctrine, has long been accepted as a necessary counterbalance to the states’ Eleventh Amendment immunity from federal jurisdiction. While the new restrictions on Congress’s power would seem to make the availability of such relief more important than before, Professor Jackson examines how the Court’s unfortunate analysis in Seminole Tribe may presage a substantial limitation of the Ex parte Young doctrine in the federal courts. Professor Jackson concludes by articulating the dangers that such a course might pose to federal courts’ role in maintaining the rule of law and the supremacy of federal law.

Book Reviews

Between Complicity and Contempt: Racial Presumptions of the American Legal Process

Ronald K. Noble

The second volume in a series entitled “Race and the American Legal Process,” Shades of Freedom continues an odyssey that Judge Higginbotham embarked on over thirty years ago. This work shepherds the reader through centuries of ever-changing legal oppression of African Americans. As elegantly put by Judge Higginbotham himself, this book “delineate[s] the law’s contribution to the frequent dehumanization of many African Americans and its impact on the journey from the midnight of total oppression to some early dawns, where there were occasional glitters of light and muted shades of freedom.”


States’ Rights–And Wrongs

Stanley Mosk

Brennan Lecture

When I look back on the origins of our nation, I feel both a deep sense of pride and a sense of apprehension for the present and the future. Habeas corpus is being undermined, legislatively and judicially; sentencing is suggesting a newly devised theory of “nothing succeeds like excess”; and there is a constant flow of suggestions for amending the Constitution. One is impelled to ask, as Archibald MacLeish did so plaintively: “Where has all the grandeur gone?”


Keeping Rufo in Its Cell: The Modification of Antitrust Consent Decrees After Rufo v. Inmates of Suffolk County Jail

Jed Goldfarb

In Rufo v. Inmates of Suffolk County Jail, the Supreme Court determined that that parties seeking to modify institutional reform consent decrees need demonstrate neither “grievous wrong” nor that the decree’s
purposes have been fully achieved. Instead, the Court held, moving parties are required to show only that a “significant change in circumstances warrants revision of the decree.” Because the consent decree in Rufo specifically involved institutional reform, lower courts are divided over the extent to which Rufo‘s more flexible standard should apply beyond the institutional reform setting. If courts apply Rufo literally, antitrust enforcement agencies, which currently settle more than seventy percent of their cases via consent decree, likely will become reluctant to enter into consent decrees. Further, in light of a recently implemented antitrust enforcement policy that generally limits consent decrees to ten years, and antitrust defendants’ already powerful incentives to settle via consent decree, the flexible Rufo standard is unnecessary and inappropriate in the antitrust context. Finally, several stark differences between institutional reform and antitrust litigation indicate that the rationales underlying Rufo are not applicable in the antitrust context.

Understanding Preemption Removal under ERISA § 502

Robert A. Cohen

The growth of federal regulation has allowed an increasing number of defendants to argue that state law has been preempted by federal law, and the well-pleaded complaint rule has forced many of these defendants to argue their federal defenses in state court. Federal jurisdiction under the Employee Retirement Income Security Act of 1974 (ERISA) can be considered an exception to this basic rule. Defendants in state court who raise a specific ERISA preemption defense are able to remove their cases to federal court. Because a federal court will decide whether federal law preempts state law, the process is known as “preemption removal.” The Supreme Court authorized preemption removal under ERISA in 1987, claiming that it was following congressional intent. There are, however, significant reasons to believe that Congress did not intend to allow such preemption removal when it enacted ERISA in 1974.

This Note argues that although congressional authorization is questionable, preemption removal under ERISA is justified by the particular issues surrounding the regulation of employee benefit plans. In the absence of congressional intent, these policies stand as the sole justification for this striking exception to the well-pleaded complaint rule. Because these policies and issues do not necessarily apply to other areas of federal legislation, this Note argues that when courts are confronted with the question of whether preemption removal should be extended to other federal statutes, they must look for either clear congressional intent or strong policy reasons, such as those implicated by ERISA, to allow such removal.


Ex Parte Young After Seminole Tribe

David P. Currie

My message is one of calm placidity: Not to worry; Ex parte Young is alive and well and living in the Supreme Court. By way of background let me say that I am that rara avis, a law professor who thinks Hans v. Louisiana was rightly decided. For the reasons given by Justice Bradley, I am quite convinced that the Federal Question Clause of Article III does not extend the judicial power to suits against nonconsenting states. That being so, it follows that the much lamented first half of the decision in Seminole Tribe v. Florida is also right, for a long series of decisions makes abundantly clear that Congress cannot give the federal courts jurisdiction over matters outside Article III.


A New Vision for the Legal Profession

Harry T. Edwards

I fear that our law schools and law firms are moving in opposite directions. The schools should be training ethical practitioners and producing scholarship that judges, legislators, and practitioners can use. The firms should be ensuring that associates and partners practice law in an ethical manner. But many law schools–especially the so-called “elite” ones–have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy. Many law firms have also abandoned their place, by pursuing profit above all else. My view is that if law schools continue to stray from their principal mission of professional scholarship and training, the disjunction between legal education and the legal profession will grow and society will be the worse for it.