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11/04/2019

William Baude & Stephen Sachs: The Misunderstood Eleventh Amendment
Michael Ramsey

William Baude (University of Chicago Law School) and Stephen E. Sachs (Duke University School of Law) have posted The Misunderstood Eleventh Amendment (52 pages) on SSRN.  Here is the abstract:

The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written text, and the unwritten doctrines of state sovereign immunity, as one and the same — whether by reading broad principles into its precise words, or by treating the written Amendment as merely an illustration of unwritten doctrines. The result is a bewildering forest of case law, which takes neither the words nor the doctrines seriously.

The truth is simpler: the Eleventh Amendment means what it says. It strips the federal government of judicial power over suits brought against states, in law or equity, by diverse plaintiffs. It denies subject-matter jurisdiction in all such cases, to federal claims as well as state ones, and in only such cases. It cannot be waived. It cannot be abrogated. It applies on appeal. It means what it says. Likewise, the Amendment does not mean what it does not say: it neither abridges nor enlarges other, similar rules of sovereign immunity, derived from the common law and the law of nations, that limit the federal courts’ personal jurisdiction over unconsenting states.

Current case law runs roughshod over these distinction, exposing sound doctrines to needless criticism, and sometimes leading the Court badly off track. A better understanding of the Amendment’s text lets us correct these errors and respect the unwritten principles that the Amendment left in place.

Just in time for this case: Allen v. Cooper  -- Supreme Court oral argument scheduled for 11/5/19; Question presented: "Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states."

(This paper will be presented at the originalism works-in-progress conference in San Diego in February 2020.)

UPDATE:  At Legal Theory Blog, Larry Solum says "Highly recommended.  Download it while it's hot!"