The Supreme Court's decision in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999), sharply contracted the number of instances in which constructive waivers of Eleventh Amendment immunity may be exacted from the states. However, a set of cases involving waiver-in-litigation--cases in which waivers of sovereign immunity are implied from the conduct of state officials during litigation-seem to have been undisturbed by the College Savings decision. Like the Court's sovereign immunity jurisprudence generally, these particular cases are predicated on a fundamental rule of Eleventh Amendment doctrine: A waiver of immunity is not valid if it is not voluntary. The waiver-in-litigation cases teach that, in many cases, states' access to the federal courts may be conditioned on waiver of sovereign immunity without compromising the voluntariness of the waiver. The "voluntariness principle"notwithstanding, the Supreme Court has held that state-defendants do not waive their immunity from suit by litigating on the merits in trial court. As a result, state-defendants may litigate on the merits without risk; for if the state loses, it may retroactively revoke the jurisdiction of the district court by asserting sovereign immunity on appeal. This article offers a comprehensive picture of the Supreme Court's waiver-in-litigation case law and scrutinizes the rule permitting late-stage claims of Eleventh Amendment immunity. It argues that this rule is not required by the voluntariness principle or any other rule of constitutional law and that it cannot be reconciled with waiver-in-litigation jurisprudence generally. The article suggests two schemes through which states' right to litigate on the merits in federal court might be conditioned on waiver of immunity.
Seinfeld, Gil. "Waiver-in-Litigation: Eleventh Amendment Immunity and the Voluntariness Question." Ohio State Law Journal 63, no. 3 (2002): 871-930.