Waiving States' Sovereign Immunity from Suit in Their Own Courts: Purchased Waiver and the Clear Statement Rule

Abstract

In recent years, the Supreme Court has expanded the Eleventh Amendment concept of state sovereign immunity to limit the extent to which individual litigants may assert federal rights against states in federal court. In its 1998 term, the Supreme Court extended the sovereign immunity doctrine to shield states from federal claims asserted by individuals in state courts as well. While the Court has carved out exceptions to the sovereign immunity doctrine, it has consistently held that if Congress wishes to make states liable in federal court through one of those exceptions, it must do so by clearly expressing its intent to abrogate states' sovereign immunity. This Note focuses on one of the exceptions to sovereign immunity-the constructive waiver of sovereign immunity that sometimes occurs when states accept federal funds-and argues that the clear statement requirement should not be applied to federal funding legislation that seeks to provide individual claimants a right to sue their state in state court.