States normally enjoy immunity from suit by private parties, but they
may waive this immunity. The Supreme Court's steady contraction of other
exceptions to the rule of state sovereign immunity has renewed interest
in the previously little-discussed possibilities of waiver. This Article
explores the boundaries of waiver doctrine.
This Article shows that, prior to 1945, the Supreme Court--even as it
enforced a broad, substantive rule of state sovereign immunity--applied
a sensible doctrine of waiver that balanced the interests of states
with those of private parties and the federal judicial system. The Court's
traditional doctrine treated state sovereign immunity like the defense
of personal jurisdiction. Failure to assert immunity in a timely fashion
waived the immunity defense. This rule prevented unfair gamesmanship.
Beginning in 1945, the traditional rules concerning waiver of state
sovereign immunity got swept away by the overall ideological tide of
state sovereign immunity doctrine. The immunity became so important
that it overrode all other considerations, including the need to run
the federal judicial system in a sensible way. The new rules of waiver
permitted states to abuse their immunity and waste federal judicial
resources by litigating the merits of a case while holding an immunity
defense in reserve.
The Supreme Court's most recent decisions suggest that the Court has
returned to its traditional rules concerning waiver. The Court should
make clear that it has fully reinstated the traditional, sensible, non-ideologized
rules of waiver. Such rules respect the states' prerogative of refusing
to be sued in a federal forum, while at the same time requiring states
to assert their prerogative in an orderly way that respects the needs
of the federal judicial system.