Rethinking the Eleventh Amendment: Sovereign Immunity in the United States and the European Union
![handle is hein.journals/nyulpp11 and id is 219 raw text is: RETHINKING THE ELEVENTH
AMENDMENT: SOVEREIGN IMMUNITY
IN THE UNITED STATES AND
THE EUROPEAN UNION
Aman Pradhan*
INTRODUCTION
State sovereign immunity first appeared in the United States Con-
stitution in 1795. As stated in the Eleventh Amendment, It]he Judi-
cial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.' The doctrine as understood today extends to
suits brought by in-state residents2 and operates as a specific consti-
tutional bar against hearing even federal claims that otherwise would
be within the jurisdiction of the federal courts.'3 While phrased as a
limitation on federal judicial power, the doctrine also applies in state
courts.4 Finally, states are free to waive their immunity, but Congress
has limited power to abrogate it.5
Most scholars agree that the state sovereign immunity doctrine is
inconsistent with the language of the Eleventh Amendment,6 but this
* J.D., New York University School of Law; B.A., Swarthmore College. Recipi-
ent of the Edward T. Weinfeld Prize for a previous version of this Note. Special
thanks go to Kristin Connor and the staff of the New York University Journal of
Legislation and Public Policy and to Professors Paul Chevigny, Mitchel Lasser,
Roderick Hills, and Richard Stewart.
1. U.S. CONST. amend. XI.
2. Hans v. Louisiana, 134 U.S. 1, 10, 15 (1890).
3. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120 (1984) (emphasis
in original).
4. Alden v. Maine, 527 U.S. 706, 754 (1999).
5. Seminole Tribe v. Florida, 517 U.S. 44, 59, 72-73 (1996) (holding that Con-
gress may only abrogate state sovereign immunity under section 5 of the Fourteenth
Amendment and that it may not do so pursuant to Article I of the U.S. Constitution).
6. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L. J.
1425, 1480 and n.223 (1987) (describing the doctrine as incoherent); John C. Jef-
fries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47,
47 (1988) (describing the doctrine as a mess). But see Caleb Nelson, Sovereign
Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559, 1653
215
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Rethinking the Eleventh Amendment: Sovereign Immunity in the United States and the European Union
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