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Weathering Constitutional Change

The problem of sovereign immunity is of great concern to today’s legal scholars. Recently, constitutional scholars have begun to analyze the effect of the Eleventh Amendment and sovereign immunity on constitutional change. In his most recent article on the subject, Professor Mark Brown responds to Professor John Jeffries’s support for the Supreme Court’s recent immunity jurisprudence. His response takes two distinct shapes. First, Professor Brown argues that rather than providing structural advantages, fostering the development of constitutional law, and protecting state treasuries, sovereign immunity suppresses constitutional filings, thereby retarding the growth of constitutional law. He further argues that even if immunity does bring about constitutional change, it is impossible to know its quality and quantity. After developing this argument, Professor Brown attempts to answer the question: What role do immunities serve? Noting that immunities contradict the principles of fairness and reliance, Professor Brown concludes that immunities serve neither as a catalyst for constitutional change nor as an accurate predictor of society’s expectations. * Professor of Law, Stetson University.

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