the contents of federal common law is a very different thing from reading them into the Founding Document itself. The most damning evidence for the Court’s theory that Hans rests on a broad rationale of immunity unalterable by Congress, however, is the Court’s proven tendency to disregard the post-Hans dicta in cases where that dicta would have mattered. If it is indeed true that “private suits against States [are] not permitted under Article III (by virtue of the understanding represented by the Eleventh Amendment),” Union Gas, 491 U. S., at 40 (Scalia, J., concurring in part and dissenting in part), then it is hard to see how a State’s sovereign immunity may be waived any more than it may be abrogated by Congress. See, e. g., Atascadero State Hospital v. Scanlon, 473 U. S., at 238 (<HOLDING>). After all, consent of a party is in all other
holding that a claim that sovereign immunity has been waived is itself waived if not argued on appeal recognizing that the state enjoys sovereign immunity in regard to tort actions unless the legislature waived immunity pursuant to a specific statute recognizing that immunity may be waived holding that notice to counsel may be waived recognizing exceptions to immunity