Abstract

States normally enjoy immunity from suit by private parties, but they may waive this immunity. The Supreme Court's steady contraction of other exceptions to the rule of state sovereign immunity has renewed interest in the previously little-discussed possibilities of waiver. This Article explores the boundaries of waiver doctrine. This Article shows that, prior to 1945, the Supreme Court-even as it enforced a broad, substantive rule of state sovereign immunity-applied a sensible doctrine of waiver that balanced the interests of states with those of private parties and the federal judicial system. The Court's traditional doctrine treated state sovereign immunity like the defense of personal jurisdiction. Failure to assert immunity in a timely fashion waived the immunity defense. This rule prevented unfair gamesmanship. Beginning in 1945, the traditional rules concerning waiver of state sovereign immunity got swept away by the overall ideological tide of state sovereign immunity doctrine. The immunity became so important that it overrode all other considerations, including the need to run the federal judicial system in a sensible way. The new rules of waiver permitted states to abuse their immunity and waste federal judicial resources by litigating the merits of a case while holding an immunity defense in reserve. The Supreme Court's most recent decisions suggest that the Court has returned to its traditional rules concerning waiver. The Court should make clear that it has fully reinstated the traditional, sensible, non-ideologized rules of waiver. Such rules respect the states' prerogative of refusing to be sued in a federal forum, while at the same time requiring states to assert their prerogative in an orderly way that respects the needs of the federal judicial system.

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