that consideration of such arguments is inappropriate “when resolution of the issue is not obvious”). The concurring opinion would nonetheless have us rule on the waiver issue in order to avoid addressing the abrogation question. However, in an effort to avoid ruling on one constitutional question, Judge Kennedy is forced to address another: she rules that a state may waive its sovereign immunity simply by doing nothing. That is, the concurring opinion concludes that Sallie Mae waived Tennessee’s sovereign immunity when Sallie Mae assigned a proof of claim to TSAC and the state failed to object. We take no position on whether Judge Kennedy is correct on this point, as the issue is a difficult one. Compare Gardner v. New Jersey, 329 U.S. 565, 573-74, 67 S.Ct. 467, 91 L.Ed. 504 (1947) (<HOLDING>), with College Sav. Bank v. Florida Prepaid
holding that state sovereign immunity bars state constitutional claims holding that when a state  files a proof of claim in a bankruptcy proceeding the state waives its eleventh amendment immunity with regard to the bankruptcy estates claims that arise from the same transaction or occurrence as the states claim holding that state could not assert sovereign immunity defense where the state had waived immunity in state court and agreed to remove suit to federal court holding that a state may waive its sovereign immunity holding that when state voluntarily submits a claim in a bankruptcy proceeding the state waives its sovereign immunity