Cite as: 523 U. S. 491 (1998)
Stevens, J., concurring
application of the ASA on remand might negate the need to address the pre-emption issue, we decline to undertake that analysis.
Accordingly, the judgment of the Court of Appeals assuming jurisdiction over this case is affirmed, its judgment in all other respects is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, concurring.
In Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670 (1982), both the four Members of the plurality and the four dissenters agreed that the District Court "did not have power . . . to adjudicate the State's interest in the property without the State's consent." Id., at 682; see also id., at 699-700; id., at 703, n. (White, J., concurring in judgment in part and dissenting in part). Our reasons for reaching that common conclusion were different, but I am now persuaded that all of us might well have reached a different conclusion if the position of Justices Story and Washington (that the Eleventh Amendment is no bar to any in rem admiralty action) had been brought to our attention. I believe that both opinions made the mistake of assuming that the Eleventh Amendment has the same application to an in rem admiralty action as to any other action seeking possession of property in the control of state officers.
My error, in writing for the plurality, was the assumption that the reasoning in Tindal v. Wesley, 167 U. S. 204 (1897), and United States v. Lee, 106 U. S. 196 (1882), which supported our holding that Treasure Salvors was entitled to possession of the artifacts, also precluded a binding determination of the State's interest in the property. Under the reasoning of those cases, the fact that the state officials were acting without lawful authority meant that a judgment against them would not bind the State. See 458 U. S., at 687-688 ("In holding that the action was not barred by the
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