510
Kennedy, J., concurring
Eleventh Amendment, the Court in Tindal emphasized that any judgment awarding possession to the plaintiff would not subsequently bind the State"). That reasoning would have been sound if we were deciding an ejectment action in which the right to possession of a parcel of real estate was in dispute; moreover, it seemed appropriate in Treasure Salvors because we were focusing on the validity of the arrest warrant.
Having given further consideration to the special characteristics of in rem admiralty actions, and more particularly to the statements by Justice Story and Justice Washington quoted in the Court's opinion, ante, at 502-503* I am now convinced that we should have affirmed the Treasure Salvors judgment in its entirety. Accordingly, I agree with the Court's holding that the State of California may be bound by a federal court's in rem adjudication of rights to the Brother Jonathan and its cargo.
Justice Kennedy, with whom Justice Ginsburg and Justice Breyer join, concurring.
I join the opinion of the Court. In my view, the opinion's discussion of Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670 (1982), does not embed in our law the distinction between a State's possession or nonpossession for purposes of Eleventh Amendment analysis in admiralty cases. In light of the subsisting doubts surrounding that case and Justice Stevens' concurring opinion today, it ought to be evident that the issue is open to reconsideration.
*See also Fletcher, A Historical Interpretation of the Eleventh Amendment, 35 Stan. L. Rev. 1033, 1078-1083 (1983) (discussing the historical basis for this interpretation).
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