State Sovereign Immunity After the Revolution

Abstract

The Supreme Court’s 1996 decision in Seminole Tribe v. Florida opened an era of dramatic expansion of states’ sovereign immunity from suits by private parties. Nationalist justices vigorously contested that expansion, vowing that they would never accept Seminole Tribe’s legitimacy or accord it stare decisis effect. In 2020, however, the unanimous decision in Allen v. Cooper did accept Seminole Tribe’s vision of state immunity, apparently ending the Court’s longstanding and bitter division on this issue. This Article assesses Seminole Tribe as a revolution in legal doctrine that established a new paradigm of state immunity law, analogous to the scientific upheavals that Thomas Kuhn examined in The Structure of Scientific Revolutions. It considers how the state immunity revolution came to an end, continuing threats to the Seminole Tribe paradigm posed by recent decisions like Torres v. Texas Department of Public Safety, and what the Court’s continuing debates about state immunity can tell us about the doctrine of stare decisis and the stability of legal paradigms. The most important lesson is that stare decisis may be insufficient to maintain a legal paradigm without acceptance of a precedent’s underlying rationale. The article also examines the sorts of “normal science” puzzles that courts will have to grapple with, even if Seminole Tribe’s paradigm proves enduring.

Keywords: sovereign immunity, Allen v. Cooper, Torres, Eleventh Amendment, Seminole Tribe, federalism, Thomas Kuhn