I saw some common problems with the Eleventh Amendment papers and wanted to comment on them.
1) You cannot make a pure consequentialist argument against sovereign immunity ("this keeps people from recovering and limits accountability, therefore bad") without acknowledging the many ways in which states can be held to account--abrogation, waiver, EpY, US enforcement. You can argue these are inadequate, but you must address them.
2) Many of you conflated the diversity theory with the plain meaning theory. The difference matters if you want people to be able to recover from states for violations of federal law. A SC citizen could not recover for an ADA violation by Georgia on plain meaning; she could under diversity. Does that matter? Is that distinction warranted as a policy matter?
3) Remember that states are subject to federal law. They just aren't subject to private suit (subject to all the limits on SI in # 1). Too many of you said states were no longer subject to federal law and stopped.
