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Copyright (c) 1983 Georgia Law Review Association
Georgia Law Review

NOTE: Express Waiver of Eleventh Amendment Immunity

Winter 1983

17 Ga. L. Rev. 513


John Evans Taylor



In the 1973 case of Chisholm v. Georgia, 1 The Supreme Court adopted a literal interpretation of article III of the Constitution 2 and held that two South Carolina creditors could sue the State of Georgia in the federal courts. 3 Congress and the states reacted by ratifying the eleventh amendment, 4 which specifies that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." 5 The Supreme Court has interpreted the amendment to bar suits against a state by its own citizens 6 or by foreign governments, 7 as well as suits based upon federal question 8 or admiralty jurisdiction. 9 Thus, the terms of article III, as modified by the eleventh amendment, subject a state only to suits brought by the United States Government or by another state.

The federal courts, concurrent with their expansive interpretation of the eleventh amendment, have also developed various devices that limit the amendment's applicability. 10 This Note focuses on one of those devices: express state waiver of the eleventh amendment. 11 The discussion begins with a study of the amendment's character in light of its historical origins. The Note then establishes the present standards for both congressional abrogation and state waiver of the amendment's protection and concentrates on the law pertinent to express waiver analysis. In so ...
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