Christina Bohannan


Beyond Abrogation of Sovereign Immunity: State Waivers, Private Contracts, and Federal Incentives

Christina Bohannan

Few judicial decisions in recent years have captured the attention of lawmakers, practitioners, and academics more than the Supreme Court’s decisions dealing with state sovereign immunity. Holding that Congress may not abrogate state sovereign immunity from federal statutory claims when acting pursuant to its Article I regulatory powers, those decisions seriously limit an individual’s ability to enforce rights against state defendants, creating a gap between right and remedy that arguably impairs the rule of law. While much of the scholarship in this area continues to dwell on abrogation as the primary means of allowing individuals to vindicate rights against the states, the Court clearly favors an approach in which states waive their immunity from suit. In this Article, Professor Christina Bohannan examines three common situations in which a state might be deemed to waive its immunity from suit: first, by failure to raise the immunity as a defense at trial; second, by private agreement; and third, by accepting federal benefits made conditional on waiver of immunity from federal claims. She determines that because the Court’s sovereign immunity and Spending Clause jurisprudence has been concerned with ensuring that a state’s waiver is voluntary and unequivocal rather than coerced, this case law precludes holding that a state waives its immunity by merely failing to raise it at trial. She concludes, however, that where a state voluntarily and unequivocally waives its immunity in a private contract or in exchange for benefits available exclusively from the federal government, its waiver should be enforced notwithstanding a subsequent attempt to revoke it at or before trial. Thus, a waiver approach to state sovereign immunity could provide a constitutional way for individuals to vindicate their rights against the states in a number of cases, thereby narrowing the rightremedy gap created by the Court’s abrogation decisions.