Reimagining the Eleventh Amendment


Under current law, the Eleventh Amendment exemplifies, rather than fully expresses, a principle of immunity that shields unconsenting states from suit in federal court, although this immunity is functionally constrained to a degree by a limited power of congressional abrogation, Ex parte Young, and suits under 42 U.S.C. § 1983. This Comment suggests that the "fundamental postulates" underlying the U.S. Supreme Court's recent jurisprudence in this area-immunity as a bedrock constitutional principle rather than a common law presumption, the paramount importance of state dignity, and historical traditionalism-do not necessarily lead to the immunity regime we know today. Rather, these fundamental postulates can theoretically yield far more limited immunity regimes. If the Court's current understanding of sovereign immunity is capable of generating such profoundly different immunity regimes, it is because sovereign immunity in its current form rests on an insufficiently rigorous set of conceptual principles. The consequence is a doctrine of sovereign immunity that may well have grown beyond its suggested rationale of preserving state dignity and that is at its core overly malleable.

About the Author

Editor-in-Chief, UCLA Law Review, Volume 50. Law Clerk designate to the Honorable Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit; J.D. candidate, UCLA School of Law, May 2003; B.A., Harvard University, 1996.

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