SOVEREIGN IMMUNITY'S PENUMBRAS: COMMON LAW, "ACCIDENT," AND POLICY IN THE DEVELOPMENT OF SOVEREIGN IMMUNITY DOCTRINE

Faced with the Supreme Court's vague and generalized pronouncements that sovereign immunity is a doctrine of great importance, but with little guidance about what policy goals it is actually intended to serve, lower courts have frequently responded by expanding sovereign immunity without extensive analysis and in ways that often seem, on their surface, hard to justify. Thus, sovereign immunity doctrine as a whole has proven susceptible to a kind of definition creep. This article aims both to explore this phenomenon in its own right and to use it as a jumping-off point to consider what continuing role courts can and should have in the development of sovereign immunity doctrine. In doing so, the article starts from two important premises. The first is that the doctrine of sovereign immunity has been, and will continue to be, substantially shaped by courts. The second premise is that the various forms of "sovereign immunity" have developed along parallel paths and can be fruitfully examined together.