DECISIONS BASED ON THE TEXT ARE SO OLD-FASHIONED. Hyatt, the Constitution, and the Common Law.

Today the Court decided FTB v. Hyatt, overruling Nevada v. Hall and declaring that states have sovereign immunity in other states’ courts. The majority opinion has gotten some rather pointed criticism—largely because it didn’t rely on any particular clause of the Constitution, but rather on general structural concerns.

Structure and relationship is fine, but I think they go too far in sovereign immunity cases. I wrote about this phenomenon some time ago in the Penn Law Review, in Penumbral Reasoning On The Right.