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Published in Washington & Lee Law Review 63 (2006), pp. 493-602. ©2006 by Washington and Lee University School of Law.


I. Introduction 494
II. Framing the Problem 501
III. The Doctrinal Collision Course 504
A. Takings Doctrine and Tax Refund Cases. 504
1. Takings Cases 504
2. Due Process Tax Refund Cases 507
B. State Sovereign Immunity Doctrine 509
C. The Unanswered Questions . 516
IV. TheTextual Argument 518
V. The Structural Arguments 524
A. Which Reading Does Less Damage? 525
B. The Marbury Principle and the Problem of Constitutional Remedies 528
1. Just Compensation and the Remedial Promise 528
2. Alden and the Symmetry of State Sovereign Immunity 550
3. The Availability of Alternative Remedies 555
C. The Fourteenth Amendment, Incorporation, and Automatic Abrogation 562
VI. The Historical Arguments 570
A. Originalist Views of the Takings Clause and the Evolution of "Just Compensation" 570
B. Original Understandings of State Sovereign Immunity 577
C. The Evolution of Actions Against the Government and the Rise of the Judiciary 582
VII. Conclusion 592

I. Introduction
Among the Rehnquist Court's more shiking accomplishments are the invigorated takings and state sovereign immunity doctrines. At first glance, these developments might be characterized as conservative jurisprudence in line with other recent decisions. Expanded takings doctrine, after all, champions property rights and restrains government from burdening landowners with the cost of regulation. Eleventh Amendment sovereign immunity,' like the Court's other federalism decisions, protects the states' dignity and curtails the federal government's power. From a broad level of generality, these doctrines seem part of a common judicial project.
And yet, though they are products of the same Court, there is reason to think that takings and state sovereign immunity cases are fundamentally incompatible with each other. On the one hand, the Court's recent takings cases often expand the instances in which a property owner can sue the government to recover just compensation for a taking of property. On the other hand, the state sovereign immunity cases make it easier for state governments to rely on sovereign immunity to shield them from suit. Of course, this rough characterization misses terrific doctrinal complexities but, at their core, these two doctrines do not mesh easily.

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