The argument here is that we can and should reject sovereign immunity of the federal or state governments, removing a doctrine that is inconsistent with the constitutional and political structure of the United States. Instead, plaintiffs should be able to sue the government (or relevant government department or agency) by name when seeking to enjoin the enforcement of unconstitutional laws, thus bringing the case caption in line with reality. By eliminating the need to identify individual defendants, we remove the issue from the rubric of Article III and standing. The government is the named defendant with a stake in the outcome of litigation and that provides the adverseness that Article III demands.
Howard M. Wasserman,
Rejecting Sovereign Immunity in Public Law Litigation
, 80 Fordham L. Rev. Res Gestae 76
Available at: http://ecollections.law.fiu.edu/faculty_publications/55
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