119 F.3d at 1147-48. We are not convinced by the Fourth Circuit’s reasoning. First, the waiver-by-litigation doctrine is driven not by the state’s “actual pr ort Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 306, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990) (construing state statutory consent-to-suit provisions); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (construing provision of state constitution). Because the “narrow construction” principle is a tool for construing a state’s express waivers of immunity, it has little relevance in this context, where the waiver is effected not through the language a state has used, but through the actions it has taken during the course of litigation. See Lapides, 535 U.S. at 620, 122 S.Ct. 1640 (<HOLDING>); see also Siegel, Waivers, 52 Duke L.J. at
recognizing distinction between tolling and estoppel recognizing distinction between smith and mcdonnell recognizing distinction between two types of waiver recognizing this distinction recognizing distinction between sole power and sovereignty