Suing a State in Federal Court under a Private Cause of Action: An Eleventh Amendment Primer

A major obstacle facing an attorney, whose client is suing a state in federal court under a right created by a federal law, is the restraints placed on the federal court's jurisdiction by the eleventh amendment to the United States Constitution. The purpose of this article is to provide assistance through this wonderland of eleventh amendment jurisprudence. This article examines three major eleventh amendment issues, plus-and perhaps more importantly-methods of avoiding eleventh amendment litigation. Section I of the article examines the historical evidence on whether the amendment was intended to apply to cases in which a citizen of a state is suing a state for violating a federal law. Section II analyzes whether the amendment was intended to limit congressional power to make states subject to federal law. Section III analyzes the requirements for finding a waiver or abrogation of a state's eleventh amendment immunity. In this part, a variety of federal statutes are examined to determine whether they apply to the states under the Atascadero standard. This section also explores possible ways of avoiding the high hurdle established by Atascadero. Section IV analyzes methods of avoiding the eleventh amendment bar. This section will explore such devices as suing a state official rather than the state, or suing for equitable relief.