Monday, March 3, 2008

Insufficiently Jurisdictional: The Case Against Treating State Sovereign Immunity as an Article III Doctrine

Katherine Florey, Note, Insufficiently Jurisdictional: The Case Against Treating State Sovereign Immunity as an Article III Doctrine, 92 Cal. L. Rev. 1375 (2004)

I more or less only skimmed this, though it seems to contain a nice analysis and a good history of the (ridiculous) sovereign immunity doctrine in the Supreme Court. It seems to make its argument as a non-federalism matter, however, but rather on some reading of Article III.

Query: does Alden v. Maine cut against the idea that sovereign immunity is, in fact, a federalism issue? This isn't really an important issue for me -- that is, it's ok if sovereign immunity isn't federalism-based, as my argument only takes effect once something has been determined to have a grounding in vertical separation of powers. If we think sovereign immunity is about something else, than I don't have an argument about its jurisdictionality.

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