State Sovereign Immunity and Stare Decisis: Solving the Prisoners' Dilemma within the Court

Abstract

This Comment argues that the liberal and conservative blocs on the U.S. Supreme Court are embroiled in a Prisoners' Dilemma with respect to whether they should follow precedent on the question of congressional abrogation of state sovereign immunity. The analytical consequence of this strategic situation within the Court is that, over the long run, all of the Justices would more fully realize their views of the merits of Eleventh Amendment cases by demonstrating more--not less--respect for the independent value of stare decisis. This Comment uses game theory to substantiate this claim, after which it offers a potential, contingent solution to the collective action problem that the Justices face. Most importanly, however, by focusing on the strategic dimension of stare decisis and identifying the long-term effects of the Court's tendency to overrule decisions when, and only because, a change in its composition empowers a new majority that thinks the precedent was wrongly decided, this inquiry brings into focus a significant hiatus in the current legal debate over the constitutional status of state sovereign immunity.