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01/20/2016

William Baude: Sovereign Immunity and the Constitutional Text
Michael Ramsey

William Baude (University of Chicago Law School) has posted Sovereign Immunity and the Constitutional Text on SSRN.  Here is the abstract:      

This Term, in Franchise Tax Board v. Hyatt, the Supreme Court will decide whether to overrule Nevada v. Hall, which holds that state sovereign immunity need not be respected in another state’s courts. Overruling Hall seems like one more logical extension of the Court’s modern sovereign immunity cases, such as Seminole Tribe and Alden v. Maine, although those cases have been accused of being inconsistent with the constitutional text.

There is in fact a theory that explains how Seminole Tribe and Alden are consistent with the text. But under that theory, Nevada v. Hall may well be rightly decided. This Term may therefore present a test of whether the Court’s sovereign immunity cases will finally break away from the text of the Constitution.