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State Sovereign Immunity and Stare Decisis: Solving the Prisoners' Dilemma within the Court |
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Neil S. Siegel |
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| This Comment argues that the liberal and conservative blocs on the U.S. Supreme Court are embroiled in a Prisoners’ Dilemma with respect to whether they should follow precedent on the question of congressional ab-rogation of state sovereign immunity. The analytical consequence of this strategic situation within the Court is that, over the long run, all of the Justices would more fully realize their views of the merits of Eleventh Amendment cases by demonstrating more—not less—respect for the inde-pendent value of stare decisis. This Comment uses game theory to substan-tiate this claim, after which it offers a potential, contingent solution to the collective action problem that the Justices face. Most importantly, however, by focusing on the strategic dimension of stare decisis and iden-tifying the long-term effects of the Court’s tendency to overrule decisions when, and only because, a change in its composition empowers a new ma-jority that thinks the precedent was wrongly decided, this inquiry brings into focus a significant hiatus in the current legal debate over the constitu-tional status of state sovereign immunity. | |
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Copyright
© 1997 by California Law Review, Inc. |
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