The states can wait: the immediate appealability of orders denying Eleventh Amendment immunity

Article Abstract:

State sovereign immunity under the Eleventh Amendment is a defense to liability rather than a right not to stand trial. Therefore the collateral order exception to the final judgment rule does not apply, and states should not be granted immediate appeal on denial of a motion to dismiss. Characterization of Eleventh Amendment immunity as a defense to liability is based on the amendment's history, its resemblance to a jurisdictional bar and the Young fiction, which together show that the amendment is intended to protect the state fisc from payment of compensatory judgments.

Appellate procedure, Appeals (Law)

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Permission to litigate; sovereign immunity lets states decide who can sue them

Article Abstract:

Americans may have, with a trio of 1999 Supreme Court rulings, their 200-year-old right to sue state governments for violating federal laws and causing injuries. These cases clarify the 1996 ruling Seminole Tribe v. Florida, which substantially expanded states' 11th Amendment immunity to suits in federal court. The rulings are Alden v. Maine and two suits by College Savings Bank.

United States, Federalism

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