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The irony of immunity: the Eleventh Amendment, irreparable injury, and Section 1983.


There's a famous story about a sign outside a fishmonger's shop saying "Fresh Fish Sold Here." A grammarian persuades the owner to erase each of the words: "Here" is unnecessary, because it's obvious where the shop is; if the fish weren't "fresh," no one would buy them; "sold" ... well, no one could think the store was giving merchandise away; and "fish" is superfluous--one can smell the wares from far off. The Supreme Court has done something rather similar to the Eleventh Amendment.(1) In Hans v. Louisiana,(2) the Court effectively removed the words "of another State," and two Terms ago, in Alden v. Maine,(3) the Court hacked off another four words--"of the United States." There's something fishy here too. In holding that Congress could not use its Article I powers to subject states to private suits in their own courts,(4) Justice Kennedy's opinion for the majority declared that
 the fact that the Eleventh Amendment by its terms limits only "[t]he
 Judicial power of the United States" does not resolve the question [whether
 states enjoy sovereign immunity in lawsuits brought in their own state
 courts]. To rest on the words of the Amendment alone would be to engage in
 the type of a historical literalism we have rejected in interpreting the
 scope of the States' sovereign immunity since the discredited decision in
 Chisolm [v. Georgia].(5)

On the same day that it announced Alden, the Court also decided a pair of cases involving Congress' ability to use Section 5 of the Fourteenth Amendment to subject states to suit without their consent. (The scope of Section 5 had become a key question after the Court's 1996 decision in Seminole Tribe v. Florida(6) stripped Congress of its power under the Commerce Clause to abrogate states' sovereign immunity in federal court.) In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank(7) (Florida Prepaid) and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board(8) (College Savings Bank) the Court held that Congress' explicit abrogation of states' sovereign immunity under the Patent and Plant Variety Protection Remedy Clarification Act(9) and the Trademark Remedy Clarification Act(10) exceeded its Section 5 power. In the first case the Court held that Congress had failed to show a sufficient danger that state patent infringements were depriving patent holders of their property interests without due process of law, and in the second case the Court found that no Due Process Clause-protected property interest was implicated at all. Earlier in the Term, in Kimel v. Florida Board of Regents,(11) the Court struck down Congress' attempt to abrogate states' sovereign immunity under the Age Discrimination in Employment Act (ADEA),(12) and this Term, the Court held that Congress cannot authorize private damages suits against states under the Americans with Disabilities Act (ADA).(13)

Decisions like Alden, Seminole Tribe, Kimel, Garrett, and the Florida Prepaid cases seem momentous.(14) The Court appears to be dramatically restricting Congress' ability to regulate state government behavior in a variety of key activities such as employment and the use of intellectual property. And yet, as Henry Monaghan and John Jeffries have pointed out in a series of insightful articles,(15) the main effect of the Court's Eleventh Amendment decisions has not been to preclude litigation against the states altogether, but rather to force such claims into lawsuits against state officials either under the Ex parte Young(16) fiction (if the plaintiffs seek injunctive relief) or under 42 U.S.C. [sections] 1983.(17)

The purpose of this piece is not to rehash the arguments developed by Monaghan and Jeffries, but rather to ask what the implications of a robust interpretation of the Eleventh Amendment are for litigation under Ex parte Young or [sections] 1983. My basic premise is that there is a paradox at the heart of the Court's Eleventh Amendment jurisprudence: The very mechanism by which the Court seeks to enhance federalism and state autonomy may in fact channel litigation into a form that imposes greater constraints on state action.

I begin by focusing on the distinction between Congress' Article I power to regulate state economic activity and its Section 5 power to abrogate state immunity from private lawsuits. I then identify a key consequence of the states' Eleventh Amendment immunity: it wipes out the possibility of an adequate damages remedy for the intended beneficiaries of congressional regulation. Thus, the Eleventh. Amendment creates the potential for an irreparable injury. The threat of an irreparable injury is precisely the circumstance that justifies injunctive relief under both Ex parte Young and [sections] 1983. That injunctive relief may turn out to be far broader and more intrusive than the damages that would have been available after the fact, both because it may involve more invasive judicial supervision of state entities and because some of the defenses that would be available in after-the-fact litigation, most notably qualified immunity, are unavailable in cases seeking prospective relief.


Alden involved a dispute between a group of probation officers and their employer, the state of Maine, over whether the state was obligated to pay overtime under the federal Fair Labor Standards Act (FLSA).(18) There was no real controversy about Congress' power to regulate the hours worked and wages received by state employees. That the FLSA was an appropriate use of the Commerce Clause was settled as early as United States v. Darby,(19) and that it could be applied to state government workers was decided by Garcia v. San Antonio Metropolitan Transit Authority.(20) Accordingly, "Maine ha[d] not questioned Congress' power to prescribe substantive rules of federal law to which it must comply"(21) and had brought its practices into conformity with the FLSA's requirements.

Similarly, nothing in the Florida Prepaid case suggested that states enjoy carte blanche to infringe on patents. The Court recognized that patents created constitutionally protected property interests.(22) And it acknowledged that protecting those interests against infringement was a "proper Article I concer[n]."(23) Where Congress had erred was in creating a private cause of action under the Fourteenth Amendment Due Process Clause without an adequate basis for believing states would infringe patents intentionally and without providing an adequate state-law remedy, the touchstones of a Due Process Clause violation.(24)

The general ability of Congress to regulate economic activity, even economic activity conducted by state and local governments, is both well-settled and noncontroversial. In EEOC v. Wyoming,(25) the Supreme Court upheld the extension of the ADEA--the statute at issue in Kimel--to most state and local employees.(26) And the day after its decision in Kimel, in Reno v. Condon,(27) the Court unanimously upheld the Drivers' Privacy Protection Act (DPPA),(28) which regulated the states' dissemination of drivers' license and motor vehicle registration information, as a proper use of the commerce power. Indeed, it was because the Court saw the DPPA as acting on states directly--"rather than `seek[ing] to control or influence the manner in which States regulate private parties'"(29)--that it shielded the DPPA from a Tenth Amendment challenge.

Part III of the Court's opinion in Alden was devoted to reiterating that
 [t]he constitutional privilege of a State to assert its sovereign immunity
 in its own courts does not confer upon the State a concomitant right to
 disregard the Constitution or valid federal law. The States and their
 officers are bound by obligations imposed by the Constitution and by
 federal statutes that comport with the constitutional design.(30)

What Seminole Tribe and Alden did was to create a distinction between Congress' general power to regulate states using its Article I powers--which, with the relatively slight restriction imposed by United States v. Lopez,(31) remains virtually plenary, at least in any economic arena(32)--and its more precise power to accomplish regulatory goals by creating private rights of action. The bottom line is that there are now a number of situations in which Congress' power to regulate exceeds its power to authorize private enforcement--in any court--of rights it has conferred on individuals. Abrogation of sovereign immunity is now limited to situations in which Congress can use its enforcement power under the Fourteenth Amendment,(33) and, after City of Boerne v. Flores,(34) that power is circumscribed by the requirement that there be a demonstrable "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."(35) Thus, absent a substantial danger of widespread unconstitutional behavior by the states, Section 5-based abrogation is unavailable.

Even after City of Boerne, Seminole Tribe, and Alden, however, there is still substantial latitude for lawsuits to enforce congressional regulatory regimes.(36) First, states may consent to suit. That consent might simply reflect a state's agreement to waive its immunity because of its "sense of justice."(37) But Justice Kennedy also identified some less gratuitous forms of consent. Congress might extract consent to suit from a state as the price of receiving a federal benefit.(38) Or Congress could--as it did with the FLSA--authorize enforcement suits brought by the federal government itself.(39) And those suits may seek essentially the same relief that normally would be available in a private lawsuit, namely, restitution of unpaid wages.(40) The key difference is that lawsuits brought on behalf of the United States--in addition to not being covered by the explicit text of the Eleventh Amendment--reflect "the exercise of political responsibility."(41)

Second, Ex parte Young and [sections] 1983 often allow suits against state officers--which will, of course, have the effect of regulating state behavior--even when the state itself cannot be sued:
 Some suits against state officers are barred by the rule that sovereign
 immunity is not limited to suits which name the State as a party if the
 suits are, in fact, against the State.... The rule, however, does not bar
 certain actions against state officers for injunctive or declaratory
 relief.... Even a suit for money damages may be prosecuted against a state
 officer in his individual capacity for unconstitutional or wrongful conduct
 fairly attributable to the officer himself, so long as the relief is sought
 not from the state treasury but from the officer personally.(42)

Thus, the legal landscape after the Court's recent forays into sovereign immunity and abrogation is one in which Congress remains free to regulate much state activity, but in which its power to regulate through private damages lawsuits is constrained. Even that constraint, however, is nowhere near as stringent as many constitutional law scholars might suppose because of the availability of lawsuits against state officers.(43) And it is therefore important to understand both the sweep and the limitations of lawsuits against state officials.


While "[t]he good faith of the States ... provides an important assurance that `[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land,'"(44) the Supreme Court has never thought that constitutional deliverance was to be achieved sola fide. Taken together, Ex parte Young(45) and Monroe v. Pape(46) create a relatively comprehensive regime for private enforcement of constitutional rights.

Ex parte Young concerned a typical constitutional claim of the Lochner(47) era: railroad shareholders alleged that Minnesota's rate-fixing legislation violated the Fourteenth Amendment by unconstitutionally confiscating their property. The legislation imposed jail terms and stringent fines on directors, agents, and employees of companies who violated its terms. A federal district court entered an injunction against Edward T. Young, the Attorney General of Minnesota, restraining him from taking any action to enforce the law. Young nevertheless initiated an enforcement action in state court, whereupon the federal court held him in contempt. On appeal, Young raised two important arguments. First, he claimed that the lawsuit was in reality a lawsuit against the state of Minnesota, and thus barred by the Eleventh Amendment. Second, he argued that the federal courts lacked equitable jurisdiction over the shareholders' claims because there was an adequate remedy at law. The Court rejected both arguments. Its take on the Eleventh Amendment issue is well known:
 The answer to all this is the same as made in every case where an official
 claims to be acting under the authority of the state. The act to be
 enforced is alleged to be unconstitutional; and if it be so, the use of the
 name of the state to enforce an unconstitutional act to the injury of
 complainants is a proceeding without the authority of, and one which does
 not affect, the state in its sovereign or governmental capacity. It is
 simply an illegal act upon the part of a state official in attempting, by
 the use of the name of the state, to enforce a legislative enactment which
 is void because unconstitutional. If the act which the state attorney
 general seeks to enforce be a violation of the Federal Constitution, the
 officer, in proceeding under such enactment, comes into conflict with the
 superior authority of that Constitution, and he is in that case stripped of
 his official or representative character and is subjected in his person to
 the consequences of his individual conduct. The state has no power to
 impart to him any immunity from responsibility to the supreme authority of
 the United States.(48)

The Ex parte Young fiction thus allows a lawsuit to go forward against the state official in his "individual" capacity, whereupon he can be enjoined from violating federal law. (Oddly enough, it is only because the official is engaged in "state action" that there is a constitutional violation in the first place.(49))

The Court's response to Young's second argument is less widely remembered. Young claimed that equity was unavailable because the railroad had a "plain and adequate remedy at law:" It could test the constitutionality of the act by disobeying it and presenting the act's unconstitutionality as a defense in a subsequent enforcement action.(50) But that course, while theoretically open, was practically unavailable. The potential liability for even a single violation was so draconian that the railroad might have difficulty finding an employee willing to violate it. Moreover, the pace of such litigation would mean that the railroad would, at most, create one test case for the purpose of litigating constitutionality and then retreat to complying with the legislation while the test case made its way through the courts. The Court recognized that
 several years might elapse before there was a final determination of the
 question, and, if it should be determined that the law was invalid, the
 property of the company would have been taken during that time without due
 process of law, and there would be no possibility of its recovery.(51)

The reason there would be no possibility of its recovery is, of course, the Eleventh Amendment bar on damages lawsuits against the state. Thus, the suit in equity was necessary to avoid "irreparable damage and injury."(52)

Monroe v. Pape(53) concerned a fairly typical Warren Court constitutional claim: The Chicago police burst into the plaintiffs' home for no apparent reason and brutalized the occupants in violation of the Fourth Amendment. Monroe revitalized a Reconstruction-era civil rights statute, 42 U.S.C. [sections] 1983, which permits both injunctive relief and damages for deprivations of constitutional rights by every person acting under color of state law. In John Jeffries' incisive observation:
 Monroe v. Pape is the Ex parte Young of retrospective relief. Just as the
 fiction of Ex parte Young routinely allows civil rights plaintiffs to evade
 the Eleventh Amendment when they seek injunctive relief, Monroe v. Pape
 (almost as) routinely allows civil rights plaintiffs to evade the Eleventh
 Amendment when they seek money damages.(54)

While [sections] 1983 does not permit lawsuits against states directly,(55) it does permit lawsuits against state officials, even when those officials are simply carrying out already established state policies.(56)

For present purposes, there are three important limitations on [sections] 1983 lawsuits.(57) First, there is a relatively narrow class of cases where, even if plaintiffs sue state officials in their personal capacity, the courts will coercively recharacterize those lawsuits as suits against the state, and the lawsuits will therefore be barred by the Eleventh Amendment. This result follows from the principle announced in Ford Motor Co. v. Department of the Treasury,(58) where the Court said that "when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants."(59) Thus, in the paradigmatic case of Edelman v. Jordan,(60) the Supreme Court barred a class action seeking to recover payments under the Aid to the Aged, Blind, or Disabled Act that the Illinois Department of Public Aid (of which Edelman was the director) had wrongfully withheld. Although the Edelman opinion was "spectacularly uninformative"(61) in providing "any coherent generalization about why the action was `in essence' against the state,"(62) Professor Jeffries has hypothesized that cases that raise "contract" claims, as opposed to "tort" claims are likely to be treated as suits against the state barred by the Eleventh Amendment.(63) It is important to note that in these cases, the Eleventh Amendment bars only retrospective, contract-based relief: It does not preclude either prospective relief--even when such relief may require the expenditure of state funds--or retrospective relief that sounds more clearly in tort.(64)

The Second Circuit's decision in Dwyer v. Regan(65) illustrates these points beautifully. Dwyer was the chief mortgage investment examiner for the New York State Employees Retirement System, of which Regan, the New York state Comptroller, was the sole trustee. Dwyer alleged that Regan disliked him personally and hatched a plot to abolish his position and then, after Dwyer had been terminated, to reconstitute and refill the position. Dwyer contended that this scheme deprived him of his property right in his position without due process of law, and he demanded reinstatement, backpay, compensatory and punitive damages, and reasonable attorney's fees. Regan moved to dismiss the complaint on the grounds that Dwyer's action, though nominally brought against him, was in reality an action against the state and was therefore barred by the Eleventh Amendment.

The court of appeals agreed as to Dwyer's claim for backpay but disagreed as to his claims for damages, reinstatement, and attorney's fees. Dwyer's claim for backpay sought "`the payment of ... money which [he contends] should have been paid, but was not.'"(66) The court noted that
 [i]f these sums should have been paid, they should have been paid by the
 State, not by Regan in his individual capacity, and an award of backpay
 would necessarily have to be satisfied from State funds. Thus, Dwyer's
 backpay claim is a claim for "a retroactive award which requires the
 payment of funds from the state treasury,"

and was barred by the Eleventh Amendment, absent a waiver of immunity by the State.(67)

By contrast, Dwyer's request for compensatory and punitive damages was not barred. While the court was
 aware of no theory that could render Regan individually liable for Dwyer's
 backpay, such is not the case with respect to the claim for damages. While
 Regan had no duty in his individual capacity to pay Dwyer's salary, he did
 have a duty not to deny Dwyer his federally protected right to due process.
 Thus, if Dwyer can establish that he requested and was denied a
 pretermination heating into his claim that the announced elimination of his
 position was a sham, there is no Eleventh Amendment impediment to his
 recovering damages for that denial from Regan. Similarly, if Dwyer were to
 establish that he timely requested and was denied a posttermination
 hearing, there would be no Eleventh Amendment impediment to his being
 awarded damages for that denial.(68)

Finally, as Edelman and its progeny had made clear, Dwyer's request to be reinstated to his position involved "purely prospective injunctive relief" not barred by the Eleventh Amendment,(69) and if Dwyer were to be granted monetary or injunctive relief, there would be "no doctrinal bar to his recovery of attorney's fees."(70)

A second important limitation to the availability of [sections] 1983 damages actions arises with regard to claims based on the violation of federal statutes (as opposed to deprivations of constitutional rights). In Maine v. Thiboutot,(71) the Supreme Court held that [sections] 1983 encompasses claims based on purely statutory violations of federal law.(72) Nonetheless, although there is a general presumption that such claims can be brought,(73) Congress can foreclose a remedy under [sections] 1983 "expressly, by forbidding recourse to [sections] 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under [sections] 1983."(74) In Middlesex County Sewerage Authority v. National Sea Clammers Association,(75) for example, the Court held that the "unusually elaborate enforcement provisions"(76) of two environmental statutes--which required prior notice to federal and state authorities and authorized only prospective relief--foreclosed damages suits under [sections] 1983.

The final, and most significant, limitation on [sections] 1983 damages actions is the doctrine of qualified immunity.(77) Put simply, [sections] 1983 permits the award of damages against state officials in their personal capacity only when their conduct "violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known."(78) Thus, in Wilson v. Layne,(79) for example, although the Supreme Court unanimously agreed that media "ridealongs" in which the press enters a private home violate the Fourth Amendment, the defendants were shielded from damages liability because eight Justices agreed that the state of the law was not clearly established at the time the entry took place. Put starkly, "qualified immunity protects `all but the plainly incompetent or those who knowingly violate the law.'"(80) When the law is uncertain, state officials who turn out to have violated it will be immunized from retrospective damages, although they will not be shielded from prospective, injunctive relief.(81)

The overall effect of Ex parte Young and [sections] 1983 is to create a regime in which injunctive relief is normally available to prevent ongoing or future violations of constitutional or statutory rights, and private damages lawsuits are generally available for a wide variety of constitutional torts. Nonetheless, there are a few critical gaps in the damages remedy.(82) The most important are cases in which the violation sounds in contract rather than tort, and cases where the unconstitutionality of the state action was not clearly established at the time it occurred. In these cases damages are unavailable.

Consider how these factors would play out in the cases recently decided by the Supreme Court. Could the probation officers in Alden file a [sections] 1983 damages action to obtain their unfairly denied overtime pay? Could the state employees in Kimel use [sections] 1983 to obtain promotions, salary adjustments, backpay, and compensatory and punitive damages for their employers' discriminatory practices? Could patent holders use [sections] 1983 to sue state officials--for example, employees of a state university--for patent infringement?

As one might expect, the answers are somewhat unclear. In Kendall v. City of Chesapeake,(83) the Fourth Circuit held, apparently as a matter of first impression, "that the elaborate remedial scheme provided in the FLSA demonstrates a congressional intent to prohibit [sections] 1983 actions to enforce such FLSA rights.(84) The Fourth Circuit's analysis--which pointed to, among other things, the fact that the FLSA itself provided for a private right of action permitting employees to sue for unpaid minimum wage and overtime compensation and for liquidated damages as evidence that Congress intended to foreclose [sections] 1983 lawsuits(85)--is undercut somewhat by Alden because the congressional intent to permit damages actions now can be effectuated only by permitting officer lawsuits. But there is, of course, another problem: the one illustrated by Dwyer. In the first instance, it is the state of Maine, not any particular supervisor or official within the corrections system, which is obligated to pay the probation officers' wages. Thus, a claim for backpay would essentially be barred under Edelman. It might be possible, under some circumstances, to recast a supervisor's decision as tortious, but this would require a stretch. Finally, of course, in any particular lawsuit there would be a question of qualified immunity: Was the duty to pay overtime or a particular wage "clearly established" at the time the supervisor acted?(86)

A similar answer might inform the issue in Kimel. In Zombro v. Baltimore City Police Department,(87) the Fourth Circuit observed that "[t]he ADEA provides a comprehensive statutory scheme to prohibit discrimination in employment on the basis of age. The plan was structured to facilitate and encourage compliance through an informal process of conciliation and mediation."(88)
 If a violation of substantive rights under the ADEA could be asserted by
 way of a [sections] 1983 action, the aggrieved party could avoid these
 specific provisions of the law. The plaintiff would have direct and
 immediate access to the federal courts, the comprehensive administrative
 process would be bypassed, and the goal of compliance through mediation
 would be discarded. The purposes and structure of the ADEA are inconsistent
 with the notion that the remedies it affords could be supplanted by
 alternative judicial relief. The inescapable conclusion to be drawn from
 the foregoing is that if 42 U.S.C. [sections] 1983 is available to the ADEA
 litigant, the congressional scheme behind ADEA enforcement could easily be
 undermined, if not destroyed.(89)

The Court's analysis in Kimel creates an additional barrier. Kimel held that the ADEA cannot be justified under the Fourteenth Amendment--even though it constitutes a valid exercise of Congress' Article I Commerce Clause power(90)--because age is not a suspect classification under the Equal Protection Clause, and the ADEA's sweeping restriction on the use of age prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard.(91) Thus, the option open to the plaintiff in Dwyer of recasting his contractual claim against the state as a tort committed by the relevant state official who denied him due process is probably unavailable.

On the other hand, as long as Garcia and EEOC v. Wyoming remain good law, state employers are bound by the FLSA, the ADEA, and the ADA as statutes properly enacted under Congress' Commerce Clause powers. Thus, as to threatened future violations of the statutes, Ex parte Young and the injunctive relief prong of [sections] 1983 may provide avenues for relief. I shall return to this possibility in the next Part of this piece.

By contrast, patent infringement cases seem relatively straightforward, although they may suffer from a "substantive" problem. Patent infringement surely sounds in tort, so there is no Edelman recharacterization problem. And a natural person state actor--such as an employee of a state university--who infringes a patent can certainly be sued directly under the patent laws. Thus, even though the state itself may be immune from a damages lawsuit, the existence of a federal cause of action against the persons who infringe on the state's behalf will likely deter much improper activity. Moreover, since states generally indemnify their employees for liability incurred in the course of their employment, the ultimate incidence of liability will approximate what would have been expected under a system of direct state liability.

The more complicated question is when [sections] 1983--as opposed to patent law itself--would provide a cause of action. This might depend on whether the claim is one alleging a constitutional or a statutory violation. The former seems less likely. As the Chief Justice's opinion in Florida Prepaid explains, the mere infringement of a patent--even though this undeniably results in a deprivation of a legally protected property interest--does not necessarily give rise to a claim under the Due Process Clause.(92) Under Parratt v. Taylor(93) and its progeny, a constitutional violation occurs "only where the State provides no remedy, or only inadequate remedies,"(94) and only when the state actor has acted intentionally or recklessly;(95) negligent infringement, while it might violate the patent laws, would not violate the Fourteenth Amendment.(96) Thus, under the Due Process Clause, a state official can be sued for patent infringement, but only if she acted intentionally or recklessly, and only if the state fails to provide an adequate remedy.

But perhaps the claim should be reformulated. Recall that under Maine v. Thiboutot(97) and its progeny, persons who are denied "rights ... secured by the laws of the United States"(98) normally also have a cause of action under [sections] 1983 when state action is involved.(99) Perhaps the plaintiff who wishes to sue over a patent infringement should frame the underlying violation not as a deprivation of due process but rather as a deprivation of a right secured by the patent laws. And she should sue not the state under the Patent and Plant Variety Protection Remedy Clarification Act but rather the responsible state officials using [sections] 1983.

Still, the fact remains: while [sections] 1983 offers a partial circumvention of sovereign immunity, it by no means guarantees that all, or even most, of the private parties who are barred from suing states directly can obtain full compensation for past violations of their constitutional or statutory rights. The sovereign immunity cases create a fight-remedy gap with respect to retrospective relief.(100)


Another way of putting the point made in the previous section is to say that sovereign immunity can create an "irreparable injury." That is, the Court's Eleventh Amendment jurisprudence, by foreclosing damages suits, deprives private parties of an adequate remedy at law for conceded violations of their rights.

This point flows also from the more general point that even when monetary damages are available for constitutional violations, they may be an inferior remedy.(101) This perspective is reflected in the usual rule that a plaintiff who can show a likely deprivation of her constitutional fights has thereby met the "irreparable injury" prong of the test for preliminary injunctive relief.(102) While courts have occasionally refused to find that an alleged constitutional violation gives rise to irreparable injury,(103) they have generally done so in cases where the constitutional injury was essentially economic and could be remedied fully by damages,(104) Even so, at least one court has held that "[d]eprivation of the rights guaranteed under the Commerce Clause constitutes irreparable injury."(105) This should be particularly true if the Eleventh Amendment bars the damages that would otherwise provide a full remedy.(106)

The usual response to the presence of a potential irreparable injury is preliminary injunctive relief. That, after all, is the message of Ex parte Young. In his magisterial treatment of irreparable injury, Douglas Laycock concisely summarizes this point:
 Government defendants are often immune from suits for damages but not from
 injunctions. This distinction is central to the Supreme Court's
 interpretation of the Eleventh Amendment and of the scope of federal
 sovereign immunity.... These rules flatly reverse the traditional
 relationship between legal and equitable remedies. Courts have reasoned
 that damage judgments for violating the law are a greater judicial
 intrusion into the running of government than injunctions requiring
 government to comply with the law henceforth.

 The nonexistent damage remedy against an immune defendant is plainly
 inadequate, and the cases so hold. The immune defendant is just like an
 insolvent defendant, except that there is no concern about preferring the
 plaintiff over other creditors. Thus, unlike a bankrupt estate, government
 defendants who are immune from damages are subject to reparative and
 structural injunctions ordering them to undo the consequences of past

In a related vein, Rhonda Wasserman suggests that one of the reasons why courts have granted preliminary injunctions enjoining government agencies from terminating benefits during the course of the litigation is because "the courts may have concluded implicitly that the plaintiffs did not have an `adequate' remedy at law (at least in federal court) because the Eleventh Amendment would bar suits in federal court to collect benefits retroactively."(108)

Thus, if Alden and Seminole Tribe and the Fourteenth Amendment abrogation cases mean that damages remedies are no longer available for violations of the FLSA, federal antidiscrimination statutes like the ADA or the ADEA, and various intellectual property laws, they create pressure to protect the rights Congress legitimately created using its Article I powers through some other means. The obvious route is preliminary injunctive relief. If John Alden's supervisor demands that he work overtime without additional pay, or if the chairman of the Florida Prepaid Postsecondary Education Expense Board announces the Board's plan to offer tuition prepayment contracts that infringe on the College Savings Bank's patent, then Alden and the Bank will be able to show irreparable injury.(109) A court might well then order Alden's supervisor to pay him overtime. Even though that payment will come from the state treasury, it will not be barred by the Eleventh Amendment, since it is prospective in nature. Similarly, a court might issue an injunction barring the Board from offering its contracts until the patent litigation is completed or ordering the Board to pay a licensing fee to the Bank. In any event, Ex parte Young surely entitles both Alden and the Bank to permanent prospective injunctive relief if they show violations of their statutory rights.(110)

This point is even stronger, of course, in cases where the constitutional or statutory violation involves an intangible civil right rather than a purely economic right or interest:
 Even temporary loss of civil liberties is irretrievable, and thus a common
 ground for preliminary relief. The right to speak or vote or worship after
 trial does not replace the right to speak or vote or worship pending trial,
 and damages for temporary loss of such rights are not even approximate
 compensation.... [T]he degree of irreparability is very high, so that the
 risk of such a loss weighs heavily in favor of preliminary relief....(111)

If such injunctive relief is available, then Seminole Tribe, Alden, and the abrogation cases may have relatively little impact on plaintiffs' ability to vindicate their rights. But this is not to say that they are unimportant. Rather, the very fact that they propel plaintiffs towards seeking injunctive relief, rather than damages, may have perverse consequences for the Court's federalism aspirations. Injunctions are often more intrusive than damages remedies because they make it impossible for a state to decide that it is willing to pay for violating particular statutory rights in order to pursue goals it considers more important. Because the injunctions run against individual state officers, those officials face the prospect of contempt sanctions, including sanctions against which they cannot be fully indemnified, if they pursue those goals. Moreover, while state officials, and therefore as a de facto matter states themselves, are protected from retrospective liability by qualified immunity, there is no such protection against injunctive relief. Thus, to the extent that rights are enforced injunctively and prospectively, rather than through damages lawsuits, the state will pay a higher price because it will be required to provide a fuller remedy. It makes little sense for the Court to permit prospective regulation, whose costs are likely to dwarf the amount of damages relief,(112) when its justification for denying retrospective relief is in part the burden such relief places on the state treasury. In a damages action the defendant is liable only if he violated clearly established law. But once a plaintiff shows irreparable injury, the traditional standard for granting a preliminary injunction requires the plaintiff to show only that "he is likely to prevail on the merits"(113) and not that his success is certain. In short, by taking an aggressive view of sovereign immunity and a restrictive view of congressional abrogation power, the Court may have replaced one array of constraints on state action with another, perhaps even more intrusive, set. It is by no means clear that enforcing rights injunctively is categorically more protective of a state's sovereignty than enforcing them through damages actions.


The ultimate question is not how plaintiffs vindicate their rights but what obligations Congress can impose on the states. My own sense is that the Court is correct not to restrict congressional power to regulate the states. Congress' Article I powers are indeed broad. But having decided to permit that regulation and having developed a set of mechanisms under Ex parte Young and [sections] 1983 to permit the vindication of constitutional and statutory rights, the Court's Eleventh Amendment jurisprudence will neither accomplish what the Court thinks it will nor create a coherent enforcement regime. As Dan Meltzer has recently observed, there is something paradoxical about "enforc[ing] a vision of constitutional federalism not by restricting the reach of congressional authority to regulate the states, but rather by limiting the remedial means by which Congress may enforce regulation of the states that is otherwise within its substantive legislative power."(114)

The movement from Seminole Tribes' restriction on Congress' Article I powers, to Alden's restriction on state-court enforcement, to Boerne, the Florida Prepaid cases, and Kimel and Garrett's constriction of the Section 5 enforcement power, bespeaks an increasingly robust conception of sovereign immunity. There is a growing tension between the commitment to state sovereignty that underlies the immunity decisions and the long-standing doctrines of Ex parte Young and [sections] 1983, which have consistently worked to circumvent the formal constraints of the Eleventh Amendment. Explicit right-remedy gaps seldom produce particularly stable doctrine. Eventually the Court may resist the paradox its sovereign immunity decisions have spawned both by further constraining the palette of remedies and by constricting the scope of the rights Congress can confer to those that the Court will permit rights holders to enforce judicially. "[T]he majority's powerful commitment to the proposition that states should not be suable at the behest of private parties" is already "shap[ing] its application of related constitutional doctrines," such as the contours of due process.(115) Perhaps reports of Ex parte Young's survival,(116) like reports of Mark Twain's death, will also turn out to be greatly exaggerated.

(1.) "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI.

(2.) 134 U.S. 1 (1890).

(3.) 527 U.S. 706 (1999).

(4.) In Seminole Tribe v. Florida, 517 U.S. 44 (1996), the Court had already held that Congress could not use its Article I powers to subject a state to suit in federal court absent that state' s consent.

(5.) Alden, 527 U.S. at 730.

(6.) 517 U.S. 44 (1996).

(7.) 527 U.S. 627 (1999).

(8.) 527 U.S. 666 (1999).

(9.) 35 U.S.C. [subsections] 271(h), 296 (1992).

(10.) 15 U.S.C. [sections] 1122 (1997).

(11.) 528 U.S. 62 (2000).

(12.) 29 U.S.C. [subsections] 621-35 (1999).

(13.) 42 U.S.C. [sections] 12112-14 (1991). See Board of Tr. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955 (2001).

(14.) They have already spawned a voluminous literature. For two particularly insightful examples, see Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 NOTRE DAME L. REV. 1011 (2000); Carlos Manuel Vazquez, Sovereign Immunity, Due Process, and the Alden Trilogy, 109 YALE L.J. 1927 (2000). For a bibliography of the literature, see id. at 1927 n.3.

(15.) John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47 (1998) [hereinafter Jeffries, Eleventh Amendment]; John C. Jeffries, Jr., The RightRemedy Gap in Constitutional Law, 109 YALE L.J. 87 (1999) [hereinafter Jeffries, RightRemedy Gap]; Henry Paul Monaghan, The Sovereign Immunity "Exception", 110 HRV. L. REV. 102 (1996).

(16.) 209 U.S. 123 (1908).

(17.) Section 1983 provides, in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. [sections] 1983 (1996).

(18.) 29 U.S.C. [subsections] 201-19 (1998).

(19.) 312 U.S. 100 (1941).

(20.) 469 U.S. 528, 547-55 (1985). That the issue is currently settled is not to say that it has been consistently settled. In Maryland v. Wirtz, 392 U.S. 183 (1968), the Court upheld the application of the FLSA to state employees. Wirtz was overruled by National League of Cities v. Usery, 426 U.S. 833 (1976), which was subsequently overruled by Garcia. See also Meltzer, supra note 14, at 1015-16 (discussing the relationship between Alden and Garcia); id. at 1050 (pointing to the Court's oscillation on this question over the past four decades); Vazquez, supra note 14, at 1934 (noting the Court's insistence that the states remain bound by the FLSA). Vazquez also asks "[i]f the states' sovereign immunity is fully compatible with congressional imposition of primary obligations on states, from what exactly does this immunity protect states?" Id. at 1935.

(21.) Alden v. Maine, 527 U.S. 706, 759 (1999).

(22.) Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 642 (1999). For a discussion of this point and its relationship to questions of sovereign immunity, see, for example, Meltzer, supra note 14, at 1056-62; Vazquez, supra note 14, at 1957-74.

(23.) Florida Prepaid, 527 U.S. at 648.

(24.) See id. at 641-45. For a discussion of the Due Process Clause in light of Florida Prepaid, see Vazquez, supra note 14, at 1945.

(25.) 460 U.S. 226 (1983).

(26.) But cf. Gregory v. Ashcroft, 501 U.S. 452, 468-70 (1991) (refusing to extend the ADEA to state-court judges on the ground that Congress had not intended to include them within the Act's coverage.)

(27.) 528 U.S. 141 (2000).

(28.) 18 U.S.C. [subsections] 2721-25 (2000).

(29.) Condon, 528 U.S. at 150 (quoting South Carolina v. Baker, 485 U.S. 505, 514-15 (1988)).

(30.) Alden v. Maine, 527 U.S. 706, 754-55 (1999); see also id. at 732 ("When a State asserts its immunity to suit, the question is not the primacy of federal law but the implementation of the law in a manner consistent with the constitutional sovereignty of the States.").

(31.) 514 U.S. 549 (1995).

(32.) The Court's decision last Term in United States v. Morrison, 120 S.Ct. 1740 (2000) (striking down the Violence Against Women Act as beyond Congress' power under either the Commerce Clause or Section 5 of the Fourteenth Amendment), combined with its decision in Jones v. United States, 120 S.Ct. 1904 (2000) (construing the federal arson statute narrowly so as not to cover arson of a purely residential building), suggests that Lopez really restricts congressional action only when the Court believes Congress is using the Commerce Clause to reach intrastate activity that is not sufficiently "economic" to substantially affect interstate commerce. Thus, while Lopez undoubtedly has teeth, it does not threaten congressional power to regulate overtly economic activity.

(33.) See Alden v. Maine, 527 U.S. 706, 756 (1999); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 636-37 (1999); Seminole Tribe v. Florida, 517 U.S. 44, 59 (1996); Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).

In Alden, Justice Kennedy treated the ratification of the Fourteenth Amendment as "requir[ing] the States to surrender a portion of the sovereignty that had been preserved to them by the original Constitution, so that Congress may authorize private suits against nonconsenting States pursuant to its [sections] 5 enforcement power." Alden, 527 U.S. at 756. Justice Kennedy's use of the word "nonconsenting" makes it somewhat puzzling that he included Section 5authorized suits under the rubric of "consent".

(34.) 521 U.S. 507 (1997).

(35.) Id. at 520.

(36.) For a succinct description of these devices, see James E. Pfander, An Intermediate Solution to State Sovereign Immunity: Federal Appellate Court Review of State-Court Judgments After Seminole Tribe, 46 UCLA L. REV. 161, 168-69 (1998).

(37.) Great N. Life Ins. Co. v. Read, 322 U.S. 47, 53 (1944).

(38.) See Alden, 527 U.S. at 755 (citing South Dakota v. Dole, 483 U.S. 203 (1987), which permitted Congress' use of its spending power to condition federal highway funds on a state's agreeing to raise its drinking age).

(39.) See Alden, 527 U.S. at 755-56; see also 29 U.S.C. [sections] 216(c) (authorizing suits under the FLSA by the United States).

(40.) See Employees of the Dep't of Pub. Health and Welfare v. Dep't of Pub. Health and Welfare, 411 U.S. 279, 285-86 (1973).

(41.) Alden, 527 U.S. at 756; see Employees of the Dep't of Pub. Health, 411 U.S. at 286 (stating that suits brought by the United States enable "the delicate federal-state relationship to be managed through the Secretary of Labor"). For a criticism of this "political accountability" rationale, see Meltzer, supra note 14, at 1021-24.

(42.) Alden, 527 U.S. at 756-57.

(43.) As John Jeffries trenchantly notes, "[i]n the aggregate, Eleventh Amendment scholarship is not only voluminous but dazzling. In insight, elegance, and sophistication, it is unsurpassed by any similar body of work in all of constitutional law. Yet for all its virtues, Eleventh Amendment scholarship neglects a crucial fact: The Eleventh Amendment almost never matters." Jeffries, Eleventh Amendment, supra note 15, at 49.

(44.) Alden, 527 U.S. at 755 (quoting U.S. CONST. art. VI).

(45.) 209 U.S. 123 (1908).

(46.) 365 U.S. 167 (1961).

(47.) Lochner v. New York, 198 U.S. 45 (1905).

(48.) Exparte Young, 209 U.S. at 159-60.


(50.) Exparte Young, 209 U.S. at 163.

(51.) Id.

(52.) Id. at 152.

(53.) 365 U.S. 167 (1961).

(54.) Jeffries, Eleventh Amendment, supra note 15, at 59.

(55.) See Will v. Mich. Dep't of State Police, 491 U.S. 58, 64-65 (1989) (finding that the term "person" in [sections] 1983 does not include states or state agencies).

(56.) See Hafer v. Melo, 502 U.S. 21, 29 (1991).

(57.) These limitations lead me to disagree with Carlos Vazquez's claim that "[t]he practical difference between the officer-liability and government-liability regimes is in any event probably not great." Vazquez, supra note 14, at 1950.

(58.) 323 U.S. 459 (1945).

(59.) Id. at 464. Of course, widespread patterns of indemnification render this distinction entirely formalistic: Whether the state or a state official is the nominal party, the actual damages are almost always going to be paid by the state.

(60.) 415 U.S. 651 (1974).

(61.) Jeffries, Eleventh Amendment, supra note 15, at 62.

(62.) Id. at 61.

(63.) See id. at 62-68. In conversation, John Jeffries has noted that constitutional violations are far more likely than statutory violations to sound in tort and thus to be amenable to enforcement through officer-liability suits under [sections] 1983.

(64.) For a discussion of the imprecision of this distinction, see Carlos Manuel Vazquez, Night and Day: Coeur d'Alene, Breard, and the Unraveling of the Prospective-Retrospective Distinction in Eleventh Amendment Doctrine, 87 GEO. L.J. 1 (1998).

Professor Barry Friedman of N.Y.U. Law School has suggested that this distinction simply makes no sense:
 [The] plaintiff was hurt because of something the official did. [M]aybe it
 was the state's duty but the official's dereliction caused the damages, be
 they tort or contract.... [T]he state only can act through officers, and in
 Alden and other cases some (combination of) state officers acted wrongly
 (albeit on behalf of the state, but they made the decision and they
 executed it) and should have to pay.

E-mail from Barry Friedman, Professor, N.Y.U. Law School, to the author (May 5, 2000) (on file with author). Perhaps the fragility of the distinction accounts for why there is a relatively narrow class of cases where [sections] 1983 relief is inapplicable. Nonetheless, it may be possible to provide a rough description of the class by saying that they are cases where, if federal law had been followed, the plaintiff would have been paid money out of the state treasury, and the state official's only malfeasance was in obeying a contradictory state directive not to pay the money. If the state official engaged in some other misbehavior as well--for example, she discriminated against the plaintiff on the basis of race in deciding not to pay him the amount to which he was entitled--then the claim becomes "tortious" and actionable under [sections] 1983.

(65.) 777 F.2d 825 (2d Cir. 1985).

(66.) Id. at 836 (quoting Edelman v. Jordan, 415 U.S. 651, 664 (1974)).

(67.) Id. (quoting Edelman, 415 U.S. at 667).

(68.) Id. at 836-37.

(69.) Id. at 836.

(70.) Id. at 837.

(71.) 448 U.S. 1 (1980).

(72.) Id. at 4-8.

(73.) See Livadas v. Bradshaw, 512 U.S. 107, 133 (1994).

(74.) Blessing v. Freestone, 520 U.S. 329, 341 (1997).

(75.) 453 U.S. 1 (1981).

(76.) Id. at 13.

(77.) For extensive treatments of this issue, see, for example, 2 SHELDON H. NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 [subsections] 8:1-8:99 (4th ed. 2000); 1B MARTIN A. SCHWARTZ & JOHN E. KIRKLIN, SECTION 1983 LITIGATION: CLAIMS AND DEFENSES [subsections] 9:13-9:42 (3d ed. 1997); Alan K. Chen, The Ultimate Standard: Qualified Immunity in the Age of Constitutional Balancing Tests, 81 IOWA L. REV. 261 (1995); Richard A. Matasar, Personal Immunities Under Section 1983: The Limits of the Court's Historical Analysis, 40 ARK. L. REV. 741 (1987).

(78.) Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

(79.) 526 U.S. 603 (1999).

(80.) Anderson v. Creighton, 483 U.S. 635, 638 (1987) (quoting, somewhat disingenuously, Malley v. Briggs, 475 U.S. 335, 341 (1986)).

(81.) See generally Jeffries, Right-Remedy Gap, supra note 15, for an argument that this distinction is a two-edged sword: while it prevents full compensation of all plaintiffs, it may ultimately contribute to the progressive development of constitutional rights.

(82.) For another approach to this question, see Meltzer, supra note 14, at 1018-21 (explaining why a damages remedy against state officials could be either incomplete or overly intrusive depending on the circumstances).

(83.) 174 F.3d 437 (4th Cir. 1999).

(84.) Id. at 439. A district court had earlier suggested, in dicta, that "the FLSA probably provides an exclusive remedy." O'Quinn v. Chambers County, 636 F. Supp. 1388, 1392 (S.D. Tex. 1986).

(85.) Kendall, 174 F.3d at 443. Moreover, the FLSA itself appears to grant the Secretary of Labor the right to seek prospective relief, but grants employees the right only to seek back wages and liquidated damages. See 29 U.S.C. [subsections] 211(a), 216(b), 217 (1996). One district court interpreted that structure to preclude actions seeking prospective injunctive relief by employees. See Keenan v. Allan, 889 F. Supp. 1320, 1382 (E.D. Wash. 1995), afl'd, 91 F.3d 1275 (9th Cir. 1996).

(86.) Thus, I am somewhat less sanguine than Carlos Vazquez that a property-based theory relying on Florida Prepaid can be used to circumvent Alden. See Vazquez, supra note 14, at 1974-80 (laying out such a theory).

(87.) 868 F.2d 1364 (4th Cir. 1989), cert. denied, 493 U.S. 850 (1989).

(88.) Id. at 1366.

(89.) Id. at 1366-67.

(90.) Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 78 (2000).

(91.) See id. at 83-86. The Court used a similar logic in Garrett. See Board of Tr. of the Univ. of Ala. v. Garrett, 121 S.Ct. 955 (2001).

(92.) Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 641-43 (1999).

(93.) 451 U.S. 527 (1981).

(94.) Florida Prepaid, 527 U.S. at 643.

(95.) See id. at 645.

(96.) For far more extensive consideration of this issue, see Meltzer, supra note 14, at 1056-62; Vazquez, supra note 14, at 1957-74.

(97.) 448 U.S. 1 (1980). For a discussion of the enforcement of nonconstitutional rights under [sections] 1983, see JEFFRIES ET AL., supra note 49, at 270-94.

(98.) Thiboutot, 448 U.S. at 5 (emphasis added) (quoting Hague v. CIO, 307 U.S. 496, 525-26 (1939)).

(99.) See text accompanying notes 69-73 supra.

(100.) For an extensive discussion of the right-remedy gap and [sections] 1983, see Jeffries, RightRemedy Gap, supra note 15. For a description of Alden's contribution to that gap, see Vazquez, supra note 14, at 1931-35.

(101.) For a perceptive discussion of the extent to which damages are an appropriate method of enforcing constitutional rights, see John C. Jeffries, Jr., Disaggregating Constitutional Torts, 110 YALE L.J. 259 (2000).

(102.) See DOUGLAS LAYCOCK, THE DEATH OF THE IRREPARABLE INJURY RULE 41 (1991); 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER 8,: MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE, [sections] 2948.1 at 161 (2d ed. 1995) (noting that "[w]hen an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary" to obtain preliminary relief); see also, e.g., Bery v. City of New York, 97 F. 3d 689, 694 (2d Cir. 1996) (finding that the deprivation of a constitutional right alone may constitute irreparable injury); Associated Gen. Contractors, Inc. v. Coalition for Econ. Equity, 950 F.2d 1401, 1412 (9th Cir. 1991), cert. denied, 503 U.S. 985 (1992).

(103.) See, e.g., Cunningham v. Adams, 808 F.2d 815, 821-22 (11th Cir. 1987); Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir. 1982).

(104.) See, e.g., Cunningham, 808 F.2d at 822 (finding that if plaintiff successfully proved his claim of racial discrimination in the award of an airport concession, he could be awarded lost profits and other monetary damages to compensate for the time he was wrongfully deprived of the concession); Flower Cab, 685 F.2d at 195 (noting that the taxicab licenses at issue in the case had "a readily ascertainable market price" that represented the extent of the plaintiff's potential damages).

(105.) American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 168 (S.D.N.Y. 1997)

(106.) See Planet Earth Entm't, Inc. v. Edwards, 84 F. Supp. 2d 891, 902 (S.D. Ohio 1999) (finding that because "the Eleventh Amendment appears to preclude any suit for money damages" against a state liquor control commission even if the plaintiff prevailed, the plaintiff had satisfied the factor in the test for a temporary restraining order that asks whether the plaintiff will suffer irreparable harm).

(107.) LAYCOCK, supra note 102, at 77-78.

(108.) Rhonda Wasserman, Equity Transformed: Preliminary Injunctions to Require the Payment of Money, 70 B.U.L. REV. 623, 665 n. 158 (1990). Cf. Clarifying Comity: State Court Jurisdiction and Section 1983 State Tax Challenges, 103 HARV. L. REV. 1888, 1890-91 (1990) (describing cases from the first part of the twentieth century in which, because a refund suit against a state for unfairly exacted taxes would be barred by the Eleventh Amendment, "some taxpayers successfully invoked federal equity powers by arguing that there was no adequate remedy at law").

(109.) Cf. Meltzer, supra note 14, at 1017 n.31 (describing how Alden "strengthens the incentives of plaintiffs to go to court immediately and of defendants to use delaying tactics" because it precludes retrospective, but not prospective, relief).

(110.) In his astute comment on Seminole Tribe, Henry Monaghan explored the interaction between Ex parte Young and the particular structure of the Indian Gaming Regulatory Act (IGRA)--the statute at issue in Seminole Tribe. See Monaghan, supra note 15, at 128-32. He suggested that the IGRA might be one of the rare statutes not amenable to enforcement under Ex parte Young. For a lucid discussion of this point and of the interplay of [sections] 1983, sovereign immunity, and statutory rights, see Pfander, supra note 36, at 180-84.

(111.) LAYCOCK, supra note 102, at 122.

(112.) Meltzer, supra note 14, at 1033.

(113.) Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (emphasis added).

(114.) Meltzer, supra note 14, at 1012.

(115.) Id. at 1056; see also Vazquez, supra note 14, at 1930 ("[T]he sovereign immunity tail is beginning to wag a very large due process dog.").

(116.) See David P. Currie, Ex parte Young After Seminole Tribe, 72 N.Y.U.L. REV. 547 (1997); Monaghan, supra note 15, at 127-32.

Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School. I thank Janet Alexander, Barry Friedman, John Jeffries, Douglas Laycock, Jim Pfander, and Carlos Vazquez for helpful comments and suggestions and Neal Troum for research assistance. I also presented earlier versions of this article to faculty workshops at Chicago-Kent, the University of Southern California, and Stanford Law Schools, where I received valuable feedback.
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Author:Karlan, Pamela S.
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Date:May 1, 2001
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