The Eleventh Amendment and Stare Decisis: Overruling Hans v. Louisiana

Abstract

There is currently a dispute raging about the meaning of the Eleventh Amendment, which protects states from suits in federal court. The language of that amendment appears to deny federal jurisdiction only over suits brought against states by citizens of another state, but the Court, since its 1890 decision in Hans v Louisiana, has interpreted the amendment to bar all federal suits against states, including those brought by a state's own citizens. Thus, under current doctrine, the Eleventh Amendment bars all suits brought against a state in federal court, regardless of the citizenship of the plaintiff or the basis for jurisdiction. Recently, however, some judges and scholars-including Professor William Fletcher in previous issues of the Review-have suggested that the amendment should prohibit only those suits brought in diversity. If there is an alternative basis for federal jurisdiction, such as the existence of a federal question, they would interpret the language and history of the amendment to permit the suit. Thus, the proponents of this "diversity explanation" maintain that Hans must be overruled. But even if the diversity explanation is correct, there is still the problem of stare decisis-- a problem that the proponents of the theory have so far neglected. Hans has been the law for a century. Moreover, as the Supreme Court pointed out in 1987, Eleventh Amendment jurisprudence is not a clean slate: overruling Hans would require overruling at least seventeen other cases relying on it.' Thus, even assuming that Hans was incorrectly decided, should the doctrine of stare decisis prevent the Court from overruling it?