Many port authorities are allocated special status and therefore partake in the parent state’s Eleventh Amendment immunity as effective arms-of-the-state. This serves several important policy goals, yet the precedent surrounding the arm-of-the-state test is muddled. This results in different tests and standards, depending on the court hearing the case, leading to different results for different entities. The Port Authority of Puerto Rico (“PRPA”) is in an especially vulnerable situation, due to its dual function as a governmental and corporate entity. The unclear status of what role the function of an entity should play in determining its status under the Eleventh Amendment has produced conflicting holdings for the PRPA in various cases, even within the same circuit. Such lack of clarity erodes public policy reasons for according arms-of-the-state special status under the Eleventh Amendment.

This paper will explain how this special vulnerability came to be by examining the legal theory of arm-of-the-state immunity in general. Then, specific application in cases involving the PRPA will be addressed. A path toward greater predictability and certainty will then be examined.

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