Once More unto the Breach: Eleventh Amendment Scholarship and the Court

This introduction to the Notre Dame Law Review’s symposium on state sovereign immunity explores the prospect that, in the words of Antonin Scalia, responsible scholarly engagement might yet restrain judicial arbitrariness at the highest level. Before Alden v. Maine, one might have argued that Eleventh Amendment law offered some parameters within which the Court would move as it continued to work out the implications of its decision in Seminole Tribe v. Florida. But Alden breaks through those parameters and raises questions as to the ability of jurisdictional law to explain or to constrain the Court's expanding conception of state sovereign immunity. After surveying the important contributions of the symposium’s participants, this introduction offers some reason to hope that Eleventh Amendment scholarship may yet explain, even if it fails to correct, the Court's narrow conception of state suability.