This Article shows that, for all of the historical analysis that has dominated eleventh amendment cases, the members of the Supreme Court have made their doctrinal choices motivated by their perception of the federal interests at stake in various cases. This Article documents this underlying federal interest analysis, which has led the Court to create the legal fiction of Ex Parte Young and then to apply it selectively. Noting that some of the Court's restrictiveness in the name of the eleventh amendment may stem from an unwillingness to go beyond express statutory remedies, the Article proposes a distinction between constitutional and nonconstitutional law, permitting greater access to federal courts for constitutional violations. Contrasting this suggestion with the frequently-proposed alternative of overruling Hans v. Louisiana, the Article finds the practical difference between the two is small and lies entirely in its practical deference not to the state, but to Congress.
When to Believe a Legal Fiction: Federal Interests and the Eleventh Amendment,
40 Hastings L.J. 1123
Available at: https://repository.uchastings.edu/hastings_law_journal/vol40/iss6/1