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Vanderbilt Law Review

Article Title

How to Assert State Sovereign Immunity Under the Federal Rules of Civil Procedure

Authors

Calvin Cohen

First Page

761

Abstract

Twenty years have passed since the Supreme Court announced dramatic changes to the doctrine of state sovereign immunity in Seminole Tribe of Florida v. Florida.' This doctrine prevents "suits by private parties against unconsenting States" in recognition of the state's power to govern itself and its citizens freely, as well as the financial impact lawsuits have on the state's treasury. Since Seminole Tribe, the Supreme Court has-in a series of contentious 5-4 decisions-increasingly allowed this doctrine to immunize states and their officers from suits arising under the federal laws and sometimes even the Constitution. But while the Court has expanded state sovereign immunity's substantive doctrine, it has neglected how state sovereign immunity should operate under the Federal Rules of Civil Procedure. Without guidance from the Supreme Court, federal courts inconsistently apply state sovereign immunity claims to the Federal Rules, each of which can negatively impact the parties' substantive and procedural rights. Some courts dismiss disputes because they lack jurisdiction (some say subject-matter jurisdiction over the dispute, others say personal jurisdiction over the state) without ever considering the underlying merits of the plaintiffs claim. Other courts acquire jurisdiction over the state defendant, thereby compelling the state to appear before a different sovereign's tribunal and defend itself. Yet more courts will issue a judgment against a state defendant but cannot enforce that judgment because the state belatedly raises its immunity after the litigation's conclusion. And many courts raise the state sovereign immunity question sua sponte, which denies both parties their right to determine how their litigation proceeds. But all courts diverge in their treatment of the parties' rights because they inconsistently apply state sovereign immunity claims to the Federal Rules, not because of the specific facts at issue in any one case.

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