An intermediate solution to state sovereign immunity: Federal appellate court review of state-court judgments after Seminole tribe

In this Article, Professor James Pfander considers the constitutionality of what he calls an intermediate solution to the problem of enforcing federal rights against the states. The Article suggests that Congress might work around the Seminole Tribe decision by enacting new legislation with two features. First, the proposed legislation would empower the state courts to hear all federal claims against the states that the Eleventh Amendment places beyond the reach of the federal district courts. Second, the proposed legislation would empower litigants to appeal final state-court decisions to the intermediate federal appellate courts. The proposal would build on the presumed availability of state dockets in the first instance and on the appellate exception to the Eleventh Amendment, which enables the Supreme Court to review on appeal suits and proceedings against the states that Iie beyond the purview of the federal district courts. In essence, the new legislation would assign the Court's appellate review authority to the intermediate federal appellate courts, enabling them to play a more active role in reviewing the adequacy of state-court remediation. Although the proposed legislation raises important questions under Article III and the Eleventh Amendment, the Article concludes that the Constitution presents no obstacle to the congressional implementation of this intermediate solution.