In praise of the eleventh amendment and section 1983

Virginia Law Review

Volumn 84, Issue 1, 1998, Pages 47-

  Jeffries Jr , John C ^a  

^a NONE

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EID: 0348046795     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: 10.2307/1073807     Document Type: Article

References (9)

1. "The Judicial 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." U.S. Const. amend. XI.
2. Like defects of subject-matter jurisdiction, Eleventh Amendment immunity can be raised for the first time on appeal, Edelman v. Jordan, 415 U.S. 651, 677-78 (1974); but unlike defects of subject-matter jurisdiction, Eleventh Amendment immunity can be waived if the state consents to suit, Hans v. Louisiana, 134 U.S. 1, 17 (1890).
3. Like defects of subject-matter jurisdiction, Eleventh Amendment immunity can be raised for the first time on appeal, Edelman v. Jordan, 415 U.S. 651, 677-78 (1974); but unlike defects of subject-matter jurisdiction, Eleventh Amendment immunity can be waived if the state consents to suit, Hans v. Louisiana, 134 U.S. 1, 17 (1890).
4. A constitutional claim against a state officer requires state action, but the defendant is said to be "stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct." Ex parte Young, 209 U.S. 123, 160 (1908).
5. The reasoning of Exporte Young applies with equal (im)plausibility in every case, yet the precedent applies only in suits for prospective relief. Edelman, 415 U.S. at 667-68.
6. See, e.g., Stewart A. Baker, Federalism and the Eleventh Amendment, 48 U. Colo. L. Rev. 139, 139-40, 165-66 (1977) (arguing that federalism concerns underlie Eleventh Amendment doctrines that are explained on other grounds); George D. Brown, State Sovereignty Under the Burger Court - How the Eleventh Amendment Survived the Death of the Tenth: Some Broader Implications of Atascadero State Hospital v. Scanlon, 74 Geo. L.J. 363, 367, 370 (1985) (reviewing the confusing categories surrounding the Eleventh Amendment and suggesting that it is best viewed as a "limitation on the national government derived ultimately from the structure of the federal system"); William Burnham, "Beam Me Up, There's No Intelligent Life Here": A Dialogue on the Eleventh Amendment with Lawyers from Mars, 75 Neb. L. Rev. 551 (1996) (leading the reader on an entertaining romp through the curiosities of Eleventh Amendment jurisprudence).
7. See, e.g., Stewart A. Baker, Federalism and the Eleventh Amendment, 48 U. Colo. L. Rev. 139, 139-40, 165-66 (1977) (arguing that federalism concerns underlie Eleventh Amendment doctrines that are explained on other grounds); George D. Brown, State Sovereignty Under the Burger Court - How the Eleventh Amendment Survived the Death of the Tenth: Some Broader Implications of Atascadero State Hospital v. Scanlon, 74 Geo. L.J. 363, 367, 370 (1985) (reviewing the confusing categories surrounding the Eleventh Amendment and suggesting that it is best viewed as a "limitation on the national government derived ultimately from the structure of the federal system"); William Burnham, "Beam Me Up, There's No Intelligent Life Here": A Dialogue on the Eleventh Amendment with Lawyers from Mars, 75 Neb. L. Rev. 551 (1996) (leading the reader on an entertaining romp through the curiosities of Eleventh Amendment jurisprudence).
8. See, e.g., Stewart A. Baker, Federalism and the Eleventh Amendment, 48 U. Colo. L. Rev. 139, 139-40, 165-66 (1977) (arguing that federalism concerns underlie Eleventh Amendment doctrines that are explained on other grounds); George D. Brown, State Sovereignty Under the Burger Court - How the Eleventh Amendment Survived the Death of the Tenth: Some Broader Implications of Atascadero State Hospital v. Scanlon, 74 Geo. L.J. 363, 367, 370 (1985) (reviewing the confusing categories surrounding the Eleventh Amendment and suggesting that it is best viewed as a "limitation on the national government derived ultimately from the structure of the federal system"); William Burnham, "Beam Me Up, There's No Intelligent Life Here": A Dialogue on the Eleventh Amendment with Lawyers from Mars, 75 Neb. L. Rev. 551 (1996) (leading the reader on an entertaining romp through the curiosities of Eleventh Amendment jurisprudence).
9. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105-06, 119-20