State sovereign immunity and stare decisis: Solving the prisoners' dilemmawithin the court

This Comment argues that the liberal and conservative blocs on the U.S. Sup reme Court are embroiled in a Prisoners' Dilemma with respect to whether th ey should follow precedent on the question of congressional abrogation of s tate sovereign immunity. The analytical consequence of this strategic situa tion within the Court is that, over the long run, all of the Justices would more fully realize their views of the merits of Eleventh Amendment cases b y demonstrating more-not less-respect for the independent value of stare de cisis. This Comment uses game theory to substantiate this claim, after whic h it offers a potential, contingent solution to the collective action probl em that the Justices face. Most importantly, however, by focusing on the st rategic dimension of stare decisis and identifying the long-term effects of the Court's tendency to overrule decisions when, and only because, a chang e in its composition empowers a new majority that thinks the precedent was wrongly decided, this inquiry brings into focus a significant hiatus in the current legal debate over the constitutional status of state sovereign imm unity.