Volume 72, Number 3

June 1997

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.