KEEPING THE ARMS IN TOUCH: TAKING POLITICAL ACCOUNTABILITY SERIOUSLY IN THE ELEVENTH AMENDMENT ARM-OF-THE-STATE DOCTRINE[dagger]

ABSTRACTThe Eleventh Amendment to the United States Constitution embodies the principle of state sovereign immunity, long held to bar suits by private litigants in federal courts or under federal law who seek redress for rights violations at the hands of state governments. But states themselves are not the only prospective defendants shielded by this form of sovereign immunity. As a subset of Eleventh Amendment jurisprudence, the arm-of-the-state doctrine allows government entities closely situated to their respective state governments to partake of the state's Eleventh Amendment sovereign immunity. Unfortunately, this doctrine, both in theory and in application, has been fraught with inconsistency and incoherence since the Supreme Court introduced it in 1977.In its 1994 decision, Hess v. Port Authority Trans-Hudson Corporation, the Court offered some guiding rationales to assist the lower federal courts in conducting their arm-of-the-state analyses. The Court directed federal courts to analyze the status of state government entities in light of the twin reasons for sovereign immunity: protection of both the state's treasury and the state's dignity. While these twin reasons were intended to aid courts in applying the various factors of their arm-of-the-state tests, unfortunately-like the jurisprudence that preceded it-the Hess precedent has proven to be minimally effective.As a solution, this Comment argues that, rather than the rationales previously offered by the Court, a political accountability rationale ought to guide the arm-of-the-state inquiry. This rationale has been present in the Court's sovereign immunity jurisprudence generally but has yet to be substantially incorporated in the arm-of-the-state context. By assessing factors that evaluate the degree to which a state's interests sufficiently coincide with an entity's affairs as well as the degree to which a state exercises sufficient control over an entity, courts may better gauge whether a given entity is politically accountable to the state. Thus, courts can ensure that government entities held to partake of their state's sovereign immunity likewise are accountable to the same democratic forces that justify and check states' own assertions of sovereign immunity. Incorporating such a rationale will more effectively preserve the integrity of the democratic process in our federal system.INTRODUCTIONWhat do a county sheriff, a public school district, and a state lottery commission all have in common? They are arms of the state and immune from suit under Eleventh Amendment state sovereign immunity1 jurisprudence.2 What else do a county sheriff, a public school district, and a state lottery commission all have in common? They are not arms of the state and therefore not immune from suit under Eleventh Amendment state sovereign immunity jurisprudence.3 At first blush, such blatant contradiction seems puzzling to say the least; unfortunately a closer examination of the decisions applying this doctrine, rather than revealing nuance and sophistication, simply exposes a muddled mess.Eleventh Amendment state sovereign immunity shields states from private suits for money damages in federal court or under federally-created claims unless a state voluntarily waives its immunity or Congress validly abrogates it. A doctrine has evolved whereby arms of the state-entities situated sufficiently close to the state so as to, in effect, be part of the state itself-are likewise immune.4 Federal courts5 have recognized various government entities as arms in their respective states, from state universities6 and lottery commissions7 to public school districts8 and county sheriffs9 or even government contractors10 in rare instances,11 but on the other end of the spectrum, courts consistently recognize that political subdivisions, such as cities and counties, are not arms of the state.12 To determine whether an entity is an arm of the state, federal courts typically engage in fact-intensive, multifactor inquiries guided by various rationales. …