A Declaratory Theory of State Accountability

Abstract

Debate persists over the meaning of the Eleventh Amendment and the degree to which it supports the lines drawn by the Supreme Court on fraught questions of state sovereign immunity and accountability. Scholars disagree both as to the legal and historical accuracy of the Court’s expansive conception of sovereign immunity and as to the proper scope of the Ex parte Young action, the primary tool for ensuring state accountability. Characterized as a body of law devoid of principle and subject to arbitrary stops in reasoning, the doctrine has yet to strike a balance between immunity and accountability that enjoys anything close to a consensus. In this Essay, we propose to blend current law and scholarship into a new, historically grounded, declaratory theory of state accountability. Our account builds on the willingness of federal courts to entertain applications for declaratory relief and their reluctance to entertain money claims against the states. We argue that the states should take responsibility for money claims, at least in cases where Congress cannot abrogate state immunity. We suggest a framework within which states give preclusive effect to federal declarations in follow-on suits brought by individuals who seek monetary relief in accordance with state law. Such an approach would honor a surprisingly strong tradition of reliance on declaratory judgments as a tool of government accountability, would preserve state control over the purse strings, and would give state governments a role in securing the effectiveness of judgments against the states comparable to that played by Congress and the executive branch in connection with judgments against the federal government.