Cite as: 524 U. S. 381 (1998)
Kennedy, J., concurring
inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction").
The Court could eliminate the unfairness by modifying our Eleventh Amendment jurisprudence to make it more consistent with our practice regarding personal jurisdiction. Under a rule inferring waiver from the failure to raise the objection at the outset of the proceedings, States would be prevented from gaining an unfair advantage. See Fed. Rule Civ. Proc. 12(h)(1).
We would not need to make this substantial revision to find waiver in the circumstances here, however. Even if appearing in federal court and defending on the merits is not sufficient to constitute a waiver, a different case may be presented when a State under no compulsion to appear in federal court voluntarily invokes its jurisdiction. As the Court recognized in Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 284 (1906), "where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment."
An early decision of this Court applied this principle in holding that a State's voluntary intervention in a federal-court action to assert its own claim constituted a waiver of the Eleventh Amendment. Clark v. Barnard, 108 U. S. 436, 447-448 (1883); see also Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 294, n. 10 (1973) (Marshall, J., concurring in result) (citing Clark v. Barnard with approval); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U. S. 275, 276 (1959) (same); Missouri v. Fiske, 290 U. S. 18, 24-25 (1933) (same). The Court also found a waiver of the Eleventh Amendment when a State voluntarily appeared in bankruptcy court to file a claim against a common fund. Gardner v. New Jersey, 329 U. S. 565, 574 (1947). Since a State which is made a defendant to a state-court action is under no com-
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