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Student Publications Homepage
ARTICLE CONTENTS
[Pages 485-586]
TOP OF ARTICLE
Introduction
I. The Sovereign Immunity of the States
A. The Constitution’s Formative Period
1. The Case for the Original Understanding
2. The Case Against the Original Understanding
a. Atascadero State Hospital v. Scanlon
b. Seminole Tribe v. Florida
c. Alden v. Maine
d. Kimel v. Florida Board of Regents
3. Academic Commentators
B. The Eleventh Amendment
C. Hans v. Louisiana
D. Cases Following Hans, Culminating in Monaco
E. Alden Revisited
F. Sovereign Immunity Conceived as Common Law
1. Sovereign Immunity as Internal Law
2. Federal Judicial Power to Override State Sovereign Immunity
G. Congressional Power to Abolish State Sovereign Immunity
1. Under Article I
2. Under Section 5 of the Fourteenth Amendment
H. Legislative Consent to Suit
1. Congressional Consent
2. State Legislative Consent
I. Local Subdivisions
II. The Sovereign Immunity of the United States
III. The Wrongdoing Officer
A. Ex parte Young
1. Trespassory Conduct
2. Non-Trespassory Conduct
3. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
4. Larson v. Domestic and Foreign Commerce Corp.: A Preview
B. Breach of Duty
C. The Government as the Real Party in Interest
1. In General
2. The Effect-on-the-Government Test
3. The Prospective-Retrospective Test
4. Offensive and Defensive Uses of Sovereign Immunity
IV. The Pattern in the Decisions
A. Government Contracts
B. Recovery of Property
C. Larson: Old Wine in a New Bottle
D. Other Parts of the Pattern
E. Pennhurst State School & Hospital v. Halderman: A Nadir
V. Getting Money from the Government
A. Mandamus and Mandatory Injunction
B. Reich v. Collins: Suing the State in Tax Cases
C. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles: Compensation for Takings
VI. The Proper Forum
A. Federal Jurisdiction Founded on State’s Consent to Suit in Its Own Courts
B. Pennhurst: Pendent Jurisdiction
C. Nevada v. Hall: Suit in a Sister State
Conclusion
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