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Opinion of Kennedy, J.
The Milliken Court, for similar reasons, rejected a Tenth Amendment challenge to the order. 433 U. S., at 291. In short, "[t]he theme that thus emerges from [our recent Young cases] . . . is one of balancing of state and federal interests." Pennsylvania v. Union Gas Co., 491 U. S., at 27 (Stevens, J., concurring).
This case-by-case approach to the Young doctrine has been evident from the start. Before Larson v. Domestic and Foreign Commerce Corp., 337 U. S. 682 (1949) (a federal sovereign immunity case), we allowed suits to proceed, as explained above, if the official committed a tort as defined by the common law. While Larson rejected this reliance on the common law of torts, see id., at 692-695, the importance of case-by-case analysis was recognized again in Seminole Tribe. There, in holding the Young exception inapplicable to a suit based on federal law, we relied on Schweiker v. Chilicky, 487 U. S. 412 (1988). Chilicky, in turn, addressed whether a Bivens type of action, a right of action stemming from the Constitution itself, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), applied in a suit alleging due process violations in the denial of Social Security disability benefits. A Bivens action was unavailable, the Chilicky Court held, given the particular circumstances present in the case. Seminole Tribe's implicit analogy of Young to Bivens is instructive. Both the Young and Bivens lines of cases reflect a sensitivity to varying contexts, and courts should consider whether there are "special factors counselling hesitation," 403 U. S., at 396, before allowing a suit to proceed under either theory. The range of concerns to be considered in answering this inquiry is broad. See id., at 407 (Harlan, J., concurring).
As no one disputes, the Young fiction is an exercise in line-drawing. There is no reason why the line cannot be drawn to reflect the real interests of States consistent with the clarity and certainty appropriate to the Eleventh Amendment's jurisdictional inquiry.
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