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School: Yale Law School

Course: Federal Courts

Year: Spring 2005

Professor: Judith Resnik

Text: Federal Courts and the Federal System, 5th ed.

Text Authors: Richard H. Fallon, Henry Melvin Hart, Herbert Wechsler, Daniel J. Meltzer, David L. Shapiro

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Article III


  • § 1

    • Congress has power to ordain and establish inferior courts or not

      • clause has been taken to mean that Congress has the power to create lower courts vested with less than the maximum jurisdiction that the Constitution allows

    • Judges serve during good behavior

    • judicial compensation should not be diminished

  • §2

    • cl 1 – power extends to cases arising under constitution, ambassadors, admiralty; controversies where US is party, 2 or more states, b/w citizen of state, between state and citizens and foreign states, citizens or subjects

    • cl 2

      • original jurisdiction in cases involving ambassadors, other public ministers or where state is party and appellate juris over “all other cases”

      • exceptions as the Congress shall make

Article II

  • § 2

    • president nominates and Senate confirms SC justices and other officers



SC original jurisdiction

  • 28 USC § 1251

    • a – original and exclusive between states

    • b – original but not exclusive over ambassadors, between US and state, actions by State against citizens of another state or against aliens (State must be real party in interest

    • falls short of Congressional grant

      • doesn’t include private suits against state or suits between state and private nation
        • § 1345 – district courts have OJ over all suits commenced by US


      • BUT original juris from Art III § 2 does not require enabling action by Congress (exists by force of Constitution)

  • discretionary - SC can choose among cases in original juris (Ohio v. Wyandotte)

    • case involved nuisance and court said onerous fact-finding

    • SO presumption against original juris even when you’re a state

    • SC may decline when (1) won’t disserve principal policies underlying Article III; (2) discretion legitimated by other responsibilities

    • have to ask permission to file

    • SC rarely hears original jurisdiction cases

  • Congress cannot add to SC original jurisdiction (Marbury v. Madison)

    • So Article III is a ceiling

  • when SC hears original juris cases have special masters for fact-finding


Appellate Jurisdiction

  • 28 USC § 1253 – three-judge courts

    • statute provides for appeal to SC so court must take case

    • very limited – redistricting cases

  • 28 USC § 1254 – courts of appeals; certified questions

  • 28 USC § 1257 – state courts

  • 28 USC § 1258 – Puerto Rico



Functions of SC review

  • authoritative voice on meaning of US Constitution

  • enforce supremacy of federal law (Cooper v. Aaron (1958))

  • uniformity – resolve conflicting interps of fed law among fed and state cts

  • BUT state courts are ultimate interpreters of state law absent federal issue

Federal courts – limited jurisdiction


  • Compare state courts - general jurisdiction – and concurrent juris

  • can only hear cases if they have both constitutional and statutory authority

  • presumption against federal jurisdiction – person seeking to invoke has burden of proof

    • fed cts can challenge sua sponte

Congressional control over federal jurisdiction


  • Congress can’t go beyond Article III (See Tidewater – DC cases)

    • SO Article III is ceiling

    • But in Tidewater itself SC allowed juris w/ no majority opinion (2 judges said it makes sense to treat DC citizens as “citizens of a state”

  • Congress can contract (See Sheldon v. Sill) but uncertain to what extent

    • Congress has never vested full Art III juris in lower courts

  • can Congress revoke all fed appellate juris?

    • YES

      • Art. III § 2exceptions clause – Congress can make exceptions to appellate juris

      • framer intent to allow Congressional control – 1789 Judiciary Act only gives authority to review state SC decisions fed constitutional decision

      • ExParte McCardle (1869) – Congress expressly has in Constitution the power to limit appellate jurisdiction (upheld statute revoking SC jurisdiction to hear circuit court habeas appeals)

        • can’t acquire into legis’s motives

        • 3 interps

          • 1) broader – Congress has plenary power over app juris so can abolish completely
          • 2) narrower – can only do this because other way to hear case (see Yerger)


            • Congress can take away something but not everything

          • 3) narrowest – only applies to particular statute

            • need clear statement that removing juris (Graham-Levin debate)

    • NO

      • exceptions modifies factual review

      • Can’t take away all jurisdiction from SC (Yerger)

        • McCardle distinguishable b/c statute did not completely preclude SC review; only eliminated one of 2 bases for juris

        • Yerger said 1868 act only repeals appellate jurisdiction of 1867 so still have previous habeas juris

        • Felker v. Turpin (upheld AEDPA as constitutional) stands for the proposition that any continuing basis for SC review, no matter how unlikely is sufficient to make a restriction on juris constitutional

          • AEDPA precluded appellate review but still had possibility of original habeas

            • irrelevant that SC has not granted original habeas petition since 1915

        • See also INS v. St. Cyr – interpreted statute not to eliminate habeas relief since it precludes appellate review of deportation

          • can cut off one channel

      • Klein – Congress can’t restrict SC review to reach substantive results

        • BUT Congress always does this

      • if no state or fed court could hear would probably have due process problem

    • subject to external restraints – can’t restrict jurisdiction in way that runs afoul of due process clause, equal protection clause or suspension clause
      • EP clause would preclude stripping jurisdiction from blacks, but might not have same problem with subject specific distinctions


  • lower federal court jurisdiction

    • under Article III don’t have to create lower courts at all

    • Congress has power to establish lower fed courts and define juris (less than Art III)

      • Sheldon v. Sill upheld Congress’ ability to contract juris

        • limits on diversity juris

      • Lockerty (fed dist ct. lacked juris to hear challenges to price controls promulgated under Emergency Price Control Act)

        • “The Congressional Power to ordain and establish inferior fed cts includes the power of investing them with juris either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good”

      • Yakus: SC precluded D from challenging constitutionality of price controls as D b/c forfeited opp to challenge in admin procs

        • Lockerty established power of Congress to restrict juris of fed cts and establish Emergency Court of Appeals as only forum

      • NOTE: both Lockerty and Yakus just precluded one federal court from hearing issue; some jurisdiction

        • likewise, Lauf just limited ability to award particularly remedy – did not foreclose all review

    • Justice Story’s view that all Art III juris must be vested in some Art III court (in original or appellate form) is not congruent with doctrine or Article III but modifications have some sway

      • need lower cts for some claims

        • 1) where SC doesn’t have original jurisdiction and state court can’t hear (e.g., fed habeas)

        • 2) where SC can’t hear

      • Sager – Con requires orig or app juris over constitutional claims
      • Amar – Art III establishes two “tiers” of fed juris – mandatory in “all cases” but not in controversies


        • BUT Meltzer said no support for variation of importance b/w cases and controversies

    • Portal-to-Portal Act (1947) – no fed juris to hear FLSA “unpaid overtime” suits

  • taking away juris v. remedies

    • maybe eliminating juris better than remedies b/c saying how to decide cases (See Klein)

    • SC upheld barring of injunctive relief (under Norris-Laguardia Act) for labor disputes in Lauf v. EG Shinner & Co (1938)

  • Congress can’t assign extrajudicial functions (Hayburn’s case – pension petitions)

    • Court doesn’t issue advisory opinions

  • Congress can’t prescribe rule of decision in pending case (US v. Klein – said presidential pardon can’t be admit as evidence of loyalty)

    • BUT any change of law will affect cts in some way; looks like intent even though McArdle said intent doesn’t matter

      • special things about Klein: (1) arguably unconstitutional as infringement on exec’s pardon power; (2) deprived property w/o due process

    • problem is not just saying Congress can’t speak but saying how it should speak

    • relates to 11th Amendment and commandeering concerns (SOC)

      • SC puppet rather than independent speaker of law

  • Congress can’t direct courts to reopen final judgments in decided cases (Plaut v. Spendthrift Farm – lengthened SOL beyond that inferred by SC in dismissing cases)

    • nature of harm – violation of integrity of lower courts; Hayburn’s case – need finality; no advisory opinions; interest in moving along cases

    • looks like prescribing rule of decision (Klein)
      • when retroactive legislation requires in its own application in a case already decided, that’s the same as Congress reversing the judgment


    • no Plaut problem with PLRA (Miller v. French - upheld PLRA provision granting automatic stay on injunctive relief)

      • Congress didn’t impermissibly reverse a “final” judgment b/c it altered the underlying law on which an injunction was valid

      • Souter Dissent - ? of whether Congress usurped judicial function if give court too little time

    • JR – this could be okay under an agency theory of courts – first Congress sent me a muddy signal and now they’re sending me a clear signal so I can’t do their bidding


NOTE: Courts cannot enlarge their own jurisdiction over suits in equity – that’s Congress’s job (Grupo Mexicano de Desarallo (1990)

-basically stands for proposition that fed cts can’t create new remedies



-in this case ct granted preliminary injunction preventing transfer of assets where no lien or equitable interest
-according to outline, equitable remedies generally not favored

President’s power over Judicial Review

  • Ex Parte Milligan – MT cannot try US citizen on US soil when courts are open

  • Ex Parte Quirin – MT can try belligerents in US

    • distinguishes Milligan as not a belligerent

  • Eisentrager – foreign citizens on foreign soil have no constitutional rights

  • Hamdi v. Rumsfeld – DP demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual basis for that decision before a neutral DMer

    • Mathews v. Eldridge balancing test

  • Rasul v. Bush – we have no jurisdiction over Gitmo b/c juris over custodian
    • JR: comes back to the ? of soil, presence and physical boundaries of the nation-state


Congressional Control over State Court Juris

  • Presumption of concurrent jurisdiction (See Tafflin v. Levitt (1990) – RICO juris not divested)

    • only divested when 1) explicit statutory directive; 2) unmistakable implication from legis hist; 3) clear incompatibility b/w state and fed court juris (non-uniformity not enough)

    • BUT originally – Priggs v. PA (1842) – both states and SC agreed Congress could not compel them to take concurrent juris

  • state courts can’t refuse to enforce fed law or discriminate against fed claims (Testa v. Katt – state didn’t want to enforce treble damages under Emergency Price Control Act, just normal damages)

    • So state judges are enforcers of supremacy clause

    • can’t decline of grounds contra to policy (See Mondou) b/c fed law is policy of each state as if had emanated from its own legislature

    • non-discrimination principle assumes fed law becomes state law

      • JR – but then not fed law at all?

      • if you (states) part of us (feds), makes anti-commandeering arg (see Printz) seem like add on

    • NOTE: state can refuse to enforce fed law that violates constitution/fed law

  • Congress possesses power under Commerce Clause to make admissibility rules for state and fed courts (Pierce County v. Guillen (2003) – fed statute barring discovery of evidence in connection w/ highway safety programs w/in Congress’s power)

    • BUT didn’t address whether statute violated dual sovereignty embodied in Tenth Amendment b/c states can’t exercise sovereign power to establish discovery and admissibility rules
  • State actors / regulation


    • US v. Morrison (2000) – Congress can’t subject private and state actors under commerce clause and 14th Amendment to money damages under VAWA

      • “Constitution requires a distinction b/w what is truly nat’l and what is truly local”

      • inadequate evidence of discrimination so overbroad restriction on potentially rational state legis

    • Reno v. Condon (2000) – Drivers’ privacy protection act (restricts ability of states to disclose personal info.) is constitutional

    • Gonzales v. Raich (2005) – Congress has power under Commerce Clause to prohibit local cultivation and use of marijuana

      • substantial effect on supply and demand on nat’l market

      • broader regulatory scheme

        • Test – rational basis for believing that failing to regulate intrastate possession and manufacture would leave gaping hole

      • Scalia concurrence – just need nat’l interest or substantial effect

non-Art III courts (aka legislative or Art I courts) - tribunals created by Congress in administrative agencies or as adjuncts to Article III courts


    • no protections of Art III judges

      • life tenure

      • salary

      • nomination by president and Senatorial confirmation

    • justifications for creating non-Art III courts

  • efficiency, specialization of subject matter

  • cost savings

  • Congress might prefer judges who are less independent (perhaps policy uniformity)

  • keep the fed judiciary small and prestigious

    • criticisms
  • threatens separation of powers between Congress and federal courts


  • fear that Congress will determine outcomes of cases by channeling them into non-Art III courts where judges less insulated from pressure

    • BUT JR notes that judges are influenced in ways beyond life tenure and salaries (e.g., fear of impeachment, desire for appointment, socialization)

    • permissible in four areas although law is uncertain and confusing

  • territories and possessions of US

  • military matters

  • public rights matters

  • private law and criminal matters

  • SEE SHORT OUTLINE FOR DETAILED DESCRIPTION

    • Can Congress put case – based on subject matter - in Article I court?

      • YES

        • Congress has subject matter authority (e.g., commerce)

        • Art I gives Congress power to create tribunals

        • Congress could give juris to state courts to decide so can create alternative fed forum

        • Canter is pillar for proposition that Congress can create non-art III courts (you can create territorial courts so ergo can create these)

        • balancing - Crowell & Schor; White’s dissent in Northern Pipeline

        • no rights in state of nature so Congress gives you right and decides where adjudicated

      • NO

        • Article III exclusivity

          • easy textual argument that Constitution says judicial power shall vest in these ways SO article III or state

        • only have historical exceptions; Article III is norm (plurality in Northern Pipeline)

        • judges dependent on executive so violates sep of powers

        • more troubling w/ private rights
    • Crowell v. Benson (1932) held that in private law matters, At III court exercises de novo review of law, juris facts and con facts


  • BUT no longer followed

  • agency adjudication fine for public rights (e.g., claims against US for money; immigration)

    • BUT need independent judicial DMing for private rights (e.g., money liability of party 1 to party 2)

  • rationale – essential feature of fed. judicial power

  • should be unclear what’s okay and what’s not

    • can’t give juris over private rights to non-Art III courts w/o right to review (Northern Pipeline plurality)

      • SO BR act unconstitutional b/c it gives BR judges juris over state claims

    • rights not created by Congress

    • all “essential attributes of judicial power are vested in bankruptcy courts

      • should be adjunct to Article III court

      • hold the line at current 3 instances for non-Art III courts

      • White dissent – balancing of Article III v. competing values (utility, expediency, etc.)

    • now the law in CFTC v. Schor

      • only time SC said Congress went too far in creating non-Art III courts

    • CFTC v. Schor (1986) – p. 387 – balancing test for examining agency adjudication

      • SC held CFTC could hear state law claims b/c limited power and does not intrude on province of judiciary (appellate review; particularized area of law)

    • also waiver so no infringement on rights

      • purposes of Art III: 1) protecting role of indep judiciary; 2) safeguarding litigants right to have case decided before indep judges

      • SO balance

        • benefits

      • cost; efficiency


      • expertise

      • why did it (further fed regulatory scheme v. sapping courts)

AGAINST

        • fairness to litigants (i.e., personal Article III)

      • due process (notice; opp to be heard)

      • no problem if consent of litigants as here

        • structural article III

      • most important is appellate review

        • best if in Art III court

        • builds on Crowell v. Benson – idea is that searching appellate review by Art III court legitimates initial agency adjud.

      • sep of powers – does putting Art III business in non-Art III court impermissibly threaten the institutional integrity of the Judicial branch? (breadth and depth of juris)

      • extent to which “essential attributes” of judicial power are reserved to Article III courts

        • best if particularized area of review

      • origins and importance of right to be adjudicated

      • concerns that drove Congress to depart from Article III in the first place

    • SI extends to agency adjudication (Federal Maritime Comm’n v. SC Ports Auth. (2002))

      • agencies similar to Art III courts - ALJ has similar role to Art III judge; looks like civil litigation (use adaptation of FRCP); have discovery

      • state has to defend self

      • Breyer dissent says different b/c executive power – just investigation into whether someone violated law

    • SUMMARY – assess con. of provisions for adjudication in non-Art III court

      • 1) Does provision fall into exceptional categories IDed in Northern Pipeline (territorial courts, military courts, public rights)?
        • If yes, passes muster


      • 2) Is non-Art III adjudication justified under Schor-like (case by case) balancing test?

      • 3) If non-Art III tribunal permissible, is jury trial required?

    • Grandfinanciera says jury trial must be provided if relief is legal + private rights

    • 1994 Bankruptcy Reform Act of 1994 authorizes jury trials in bankruptcy courts w/ consent of parties and approval of dist ct but unclear what happens w/ other courts

    • can Art III court rely on admin agency’s determination in imposing criminal punishment?

      • Answer is partially yes

      • Falbo – registrant being prosecuted for draft evasion couldn’t defend on ground he was wrongly classified

        • Estep – opposite result; could say board beyond juris

      • explained Falbo on ground that petitioner failed to exhaust admin remedies

      • US v. Mendoza-Lopez (1987) – alien deported now being charged for crime of remedy can challenge validity of underlying deportation order

        • referenced Yakus for principle that at a minimum result of admin proceeding can’t be conclusive element of criminal offense when JR denied

bankruptcy courts (28 USC 151-52, 57-58)

  • bankruptcy system originally found unconstitutional in Northern Pipeline (1978)

  • Congress fixed with statute in 1984

  • judges have 14 year terms and appointed by COA

  • “unit” of the district court (28 USC 151)
  • have bankruptcy appellate panels and eventually COA review possibility


  • 1994 bankruptcy reform act – bankruptcy courts have authority to conduct jury trials with approval of district court and consent of parties

    • Grandfinanciera, SA v. Nordberg found right to jury trial where legal relief + private rights (fraudulent conveyance claim)



magistrate judges 28 USC § 631et seq.

  • w/in Art III framework

  • can conduct pretrial and post-trial hearings; evidentiary hearings; full trial w/ parties consent; select juries even in felony trials (Peretz)

    • some dissents say 636(c) (consent provision) is unconstitutional

    • Roell v. Withdrow (2003) – consent of parties to MJ trials can be implied from conduct

  • 8 year terms for full-timers; 4 years with part-timers

  • appointed by DJs (so culture of hierarchy)

  • dist judges make de novo finding of fact

    • BUT doesn’t need to have de novo review of evidence (US v. Raddatz)



other judges

  • APA has merit selection for ALJs

  • AJs (including IJs) aren’t protected by APA

  • what about dignity concerns?

tribal courts


  • Confusion on whether tribes had preexisting power– therefore Congress must take away (See Santa Clara Pueblo) – or lack power – therefore Congress must delegate (Oliphant; Duro; Lara)




  • Santa Clara Pueblo (1978) – no implied cause of action in fed court under the IRCA (Indian Civil Rights Act)
    • Marshall – Indian tribes are “separate sovereigns”; Congress can diminish tribal sovereignty but must act through clear statement not implication


    • where Congress provides explicit remedy, it’s exclusive

    • good case for relationship among court systems

      • ? of whether to defer to tribes – they determined necessity of rule through tribal representation

    • preexisting sovereignty – subject to defeasement – and Congress can’t take it away unless they say so

  • Oliphant v. Suquamish Indian Tribe (1978) – tribal courts lack jurisdiction to try non-Indians

    • no affirmative delegation by Congress – SO only have power Congress gives

  • Duro v. Reina (1990) – tribes lack criminal jurisdiction over non-member Indians

    • again (as in Oliphant) not given power by Congress

    • distinguished civil context where tribes had jurisdiction

  • US v. Lara (2004) – constitution authorizes Congress to permit tribes to prosecute nonmember Indians

    • SO here Congress acted – gave back power

      • But seems like reversal of Oliphant b/c didn’t have power there toward defeasement (ala Santa Clara)

    • doesn’t violate double jeopardy clause b/c separate sovereigns

      • BUT if delegated by feds, then sounds like double jeopardy b/c feds prosecuting twice (Souter dissent)

  • No implicit for concurrent juris for tribal courts (unlike state courts)

    • See Nevada v. Hicks – tribal court doesn’t have juris to hear § 1983 claims

    • juris only extends as far as legis authority
    • SO can’t get what Marshall wanted in Santa Clara– litigation in tribal courts to look like nat’l norms


Sovereign Immunity

    • SEE SUMMARY

    • Eleventh Amendment: “The 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.”

      • Response to Chisolm (1793) (fed juris to hear claims against states)

    • Gibbons argues more about federal treaty power (most concerned about citizens of foreign states suing individual states in US courts) than overturning Chisolm

      • “construed to” sounds like Congress speaking directly to courts

    • SO maybe legis could still bring into effect

    • Two views of 11th Amendment

      • prevailing view – restriction of subject matter jurisdiction

      • minority view – only restricted fed diversity juris (citizens of other state v. state)

        • Brennan dissent in Atascadero – repeated by Stevens in Seminole Tribe and Fed. Maritime Comm’n - BUT never caught on

    • SO can’t sue US w/o consent but can sue fed officers (US v. Lee)

      • b/c officers obliged to obey law

    • 11th Amendment bars suits against states by own citizens (Hans v. Louisiana (1890))

      • would fall outside Amendment based on strict textual reading

      • big debate about whether statement of constitutional immunity or FCL

      • extends to arm of state

    • foreign state can’t sue state (Monaco v. Mississippi)
    • SI doesn’t extend to state compacts (Port Auth – so incentives against states coming together) or cities/counties/etc. (Northern Ins. Co. v. Chatham County, GA (2006) (9-0))


    • 11th Amendment also bars private Ps from suing states in state courts w/o their consent (Alden v. Maine - FLSA)

      • NO possibility of abrogation

        • why can’t Congress tell state courts to enforce fed rights against states like against private parties (Testa v. Katt & Tafflin)?

        • Alden looks like Testa violation (discrimination) b/c won’t recognize FLSA claims against state actors but will recognize state law claims

        • rationale: immunity not derived from 11th Amend. but retained by virtue of admission to union; structure of federalism means Congress must treat states as “residuary sovereigns”

        • BUT feds could bring suit themselves

    • SI extends to agency adjudication (Fed Maritime Comm’n v. SC Ports Authority (2002))

      • look like Art III courts and same effect as judicial proceedings

      • easy for JR b/c looks like jud proc but Breyer says it’s different

      • concern is not to raise up any proceedings against States that were “anomalous and unheard of when Constitution adopted” (Hans v. Louisiana)

    • no state regulatory immunity (Garcia – transit authority must comply w/ FLSA)

    • 3 means of circumventing 11th Amendment

    • Ex Parte Young suit against state officer

      • But no state law claims (Pennhurst) although some ways around this (see p. 42)

      • Not available if fed statutes provides comp. enforcement mechanism (Seminole tribe)

    • state consent (affirmatively agree) and waiver (Seminole Tribe)
      • anomaly because parties generally lack power to confer SJ on fed courts


      • popular to do so b/c accountability wins campaigns

      • selective waiver OK (e.g., just in state courts) (Smith v. Reeves)

      • no constructive consent (e.g., accept funds; part. in fed programs) (FL Prepaid)

        • SO extra-litigation conduct is not form of waiver

      • waive by participating in litigation (Lapides – removal from state ct. to fed ct)

        • Lapides was state law claim, but seems like would also apply to fed claim

        • issue of who can waive (can I go to dumb 1st year DA?)

    • Congressional abrogation

      • need unequivocal intent and power to do so (See Seminole Tribe)

      • See also Atascadero - emphasizing clear statement rule

        • Vermont Agency of Nat Resources (2000) - False Claims Act doesn’t apply to states b/c uses term “person” so no clear intent

      • Examples: court of fed claims – claims against US govt.; tax court for tax claims; FTCA; admiralty; workers comp; Tucker Act; APA – admin agencies

      • Congress can abrogate pursuant to 14th Amendment (Fitzpatrick v. Bitzer (1976) – 14th Amendment) BUT need clear statement

        • need record of violations and congruence and proportionality

          • unclear whether municipality stuff is OK or need state stuff

        • abrogation not allowed in Morrison (2000) (VAWA) and Kimel (2000) (ADEA – no pattern of age discrim)

        • allowed under Hibbs (2004) (FMLA $ damages) and Tennessee v. Lane (2004) (ADA in state courthouses)

          • hard to square w/ Garrett and Morrison b/c same level of evidence

      • Congress can abrogate under Article I (Central Auth. v. Katz – bankruptcy)


        • overruled Seminole Tribe (Congress couldn’t abrogate pursuant to Indian Commerce Clause)

      • Can abrogate pursuant to bankruptcy clause (Central VA Community College v. Katz (2005))

        • argument is all about function – can’t distribute assets if we can’t make state put itself in

        • states agreed to be subject to suits when they signed off on Constitution which authorized creation of uniform bankruptcy system

          • no need for clear statement rule b/c relevant “abrogation” in Constitution not statute

      • Thomas dissent – majority conflates authority to regulate & SI against suit

        • see also Tenn Student Assistance Corp (2005) –fed jur doesn’t affect state sovereignty b/c juris premised on debtor and estate not creditors

      • Congress can’t abrogate in state courts (Alden v. Maine (1999))

    • no SI in courts of sister states (Nevada v. Hall)



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