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

dc.contributor.authorSherry, Suzanna
dc.date.accessioned2014-06-06T12:57:46Z
dc.date.available2014-06-06T12:57:46Z
dc.date.issued1990
dc.identifier.citation57 U. Chi. L. Rev. 1260 (1990)en_US
dc.identifier.urihttp://hdl.handle.net/1803/6429
dc.descriptionarticle published in a law reviewen_US
dc.description.abstractThere 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?en_US
dc.format.extent1 PDF (14 pages)en_US
dc.format.mimetypeapplication/pdf
dc.language.isoen_USen_US
dc.publisherThe University of Chicago Law Reviewen_US
dc.subjectHans v. Louisianaen_US
dc.subject.lcshUnited States. Constitution. 11th Amendmenten_US
dc.subject.lcshStare decisisen_US
dc.subject.lcshHans, Bernard -- Trials, litigation, etcen_US
dc.titleThe Eleventh Amendment and Stare Decisis: Overruling Hans v. Louisianaen_US
dc.typeArticleen_US


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