IN DEFENSE OF OUR LAW OF SOVEREIGN IMMUNITY

* Simon H. Rifkind Professor Emeritus of Law, Columbia Law School. James Pfander commented helpfully on the manuscript for this Article.
1 So far as this writer has been able to discover, Professor Currie is the only other academic who believes sovereign immunity, like it or not, to be of constitutional dimension. David P. Currie, Ex parte Young after Seminole, 72 N.Y.U. Law Rev. 547, 547–48 (1997).
A partial list of academics who argue that sovereign immunity has no sound basis in law follows. See, e.g., John V. Orth, The Judicial Power of the United States: The Eleventh Amendment in American History (1987); Ann Althouse, When to Believe a Legal Fiction: Federal Interests and the Eleventh Amendment, 40 Hastings L.J. 1123 (1989); Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425 (1987); Edwin M. Borchard, Government Liability in Tort (pts. 1–3), 34 Yale L.J. 1, 129, 229 (1924–25); William Burnham, Taming the Eleventh Amendment Without Overruling Hans v. Louisiana, 40 Case W. Res. L. Rev. 931 (1989–90); Kenneth Culp Davis, Sovereign Immunity in Suits Against Officers for Relief Other Than Damages, 40 Cornell L.Q. 3 (1954–55); David E. Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1 (1972); Martha A. Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Congressional Imposition of Suit upon the States, 126 U. Pa. L. Rev. 1203 (1978) [hereinafter Field, Part II]; Martha A. Field, The Eleventh Amendment and other Sovereign Immunity Doctrines: Part One, 126 U. Pa. L. Rev. 515 (1977) [hereinafter Field, Part I]; William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033 (1983) [hereinafter Fletcher, Historical Interpretation]; William A. Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, 56 U. Chi. L. Rev. 1261 (1989) [hereinafter Fletcher, Reply to Critics]; John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889 (1983); Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court’s Lopez and Seminole Tribe Decisions, 96 Colum. L. Rev. 2213 (1996); Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1 (1988); Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 Sup. Ct. Rev. 1; Henry Paul Monaghan, The Sovereign Immunity “Exception,” 110 HARV. L. REV. 102 (1996); John V. Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423; James E. Pfander, History and State Suability: An “Explanatory” Account of the Eleventh Amendment, 83 Cornell L. Rev. 1269 (1998) [hereinafter Pfander, State Suability]; James E. Pfander, Rethinking the Supreme Court’s Original Jurisdiction in State-Party Cases, 82 Cal. L. Rev. 555 (1994) [hereinafter Pfander, State-Party Cases]; James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899 (1997) [hereinafter Pfander, Right to Petition]; David L. Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv. L. Rev. 61 (1984); Suzanna Sherry, The Eleventh Amendment and Stare Decisis: Overruling Hans v. Louisiana, 57 U. Chi. L. Rev. 1260 (1990); Carlos Manuel Vazquez, What Is Eleventh Amendment Immunity?, 106 Yale L.J. 1683 (1997).
2 See Alden v. Maine, 527 U.S. 706, 760 (1999) (5–4 decision) (Souter, J., dissenting); Seminole Tribe v. Florida, 517 U.S. 44, 76 (1996) (5–4 decision) (Stevens, J., dissenting); Blatchford v. Native Village of Noatak, 501 U.S. 775, 788 (1991) (6–3 decision) (Blackmun, J., dissenting); Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468, 496 (1987) (5–4 decision) (Brennan, J., dissenting); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985) (5–4 decision) (Brennan, J., dissenting); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 125 (1984) (5–4 decision) (Brennan, J., dissenting); id. at 126 (Stevens, J., dissenting).
3 See infra notes 205–229 and accompanying text.
4 209 U.S. 123 (1908).
5 In England, suit against the sovereign was possible if certain conditions were met—principally by obtaining permission from the Privy Council, the Chancery or the Exchequer. See Louis L. Jaffe, Suits Against Government and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 5–9 (1963). With these institutions absent in the United States, consent to suit devolved upon the legislatures, which initially gave consent to suit in special statutes for particular cases, and later, increasingly, by general statutes.
6 For the contention that it was so derived, see Nevada v. Hall, 440 U.S. 410, 414–15 (1979); Engdahl, supra note 1, at 2–5; Jackson, supra note 1, at 79–80. In United States v. Lee, the Court, in the course of an elaborate dictum, assumed that the sovereign immunity of the United States derived from English practice, and gave reasons why, as it said, transplanting that practice to the United States made no sense because of our different political institutions. See 106 U.S. 196, 204–10 (1882). In any event, the Court did not reject the immunity. The holding turned on the Court’s conclusion that the suit was permissible as one against federal officers in their personal capacities. See id. at 210–16; see also Employees of Dep’t of Pub. Health & Welfare, 411 U.S. 279, 311, 323 (1973) (Brennan, J., dissenting) (describing sovereign immunity as “a doctrine premised upon kingships” and “born of systems of divine right”).
7 E.g., United States v. Clarke, 33 U.S. (8 Pet.) 436, 443–44 (1834).
8 See, e.g., Attorney-General v. Turpin, 13 Va. (1 Hen. & M.) 548 (1809); Commonwealth v. Matlack, 4 Dall. 303, 303 (Pa. 1804). Litigants were often reminded that only the legislature could waive the immunity. Not for over a century was this exclusive legislative role challenged, when a significant number of states modified or eliminated sovereign immunity, in the belief that it was only common-law doctrine. See infra notes 186–190 and accompanying text.
9 See discussion infra Part I.A.1.
10 2 U.S. (2 Dall.) 419 (1793).
11 See infra notes 41–48 and accompanying text.
12 See infra notes 49–107, 127–142 and accompanying text.
13 See infra notes 177–190 and accompanying text.
14 Pennhurst, 465 U.S. at 114 n.25.
15 Id. The Court’s concern was with “relief [that] would operate against the State.” Id. Presumably, the Court thought that constitutional rights would be amply protected by relief against the officer that does not have that effect. But the opinion reveals a readiness to go far beyond previous decisions in finding that a decree addressed to the officers would in fact operate against the state. See infra notes 312–323 and accompanying text.
16 See infra note 352 and accompanying text.
17 465 U.S. at 121.
18 See infra notes 458–488 accompanying text.
19 See infra notes 489–492 and accompanying text.
20 440 U.S. 410, 426–27 (1979).
21 See discussion infra Part VI.C.
22 The Federalist No. 81, at 455–56 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
23 See 2 U.S. (2 Dall.) 419, 453–66 (1793).
24 See id. at 469–79. His argument concerning the suability of the United States, however, was cramped. He said that when federal judges rendered judgments against states, they could count on the support of the federal executive branch in the matter of enforcement, but could not expect the same support when judgments were rendered against the federal government, and that arguably judicial power under Article III should be construed in the light of “this distinction.” Id. at 478; see U.S. Const. art. III, § 2, cl. 1.
25 Such assumption is evident from the remarks of leading statesmen at various state ratification conventions. See infra notes 27, 30–31.
26 U.S. Const. art. III, § 2, c1. 1.
27 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 526–27 (J. Elliot ed., William S. Hein & Co., Inc. 2d ed. 1996) (1891) [hereinafter Elliot’s Debates] (“To controversies between a state and the citizens of another state. . . . claims respecting . . . every liquidated account, or other claim against this state will be tried before the federal court. Is this not disgraceful? Is this state to be brought to the bar of justice like a delinquent individual?”).
28 Id. at 573 (“I think . . . that any doubt respecting the construction that a state may be plaintiff, and not defendant, is taken away by the words where a state shall be a party.”).
29 Id. at 543 (“[Madison] says that the state may be plaintiff only. If gentlemen pervert the most clear expressions . . . there is an end of all argument. What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant.”).
30 Id. at 533 (“It is not in the power of individuals to call any state into court. The only operation the [Clause] can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court.”).
31 Id. at 555 (“I hope no gentleman will think that a state will be called at the bar of the federal court. . . . It is not rational to suppose that the sovereign power shall be dragged before a court. The intent is, to enable states to recover claims of individuals residing in other states.”).
32 There was no anomaly in this. Absent access to a federal court as plaintiff, state A, suing a citizen of state B, would normally have been obliged to sue in the courts of state B. Allowing state A to bring such a suit in a federal court placed the state on a par with a citizen of state A suing a citizen of state B because in both instances, access to a federal court avoided the need to face a possibly hostile tribunal in state B. This was a reasonable arrangement, regardless of whether state A as defendant could claim sovereign immunity.
33 See Treaty of Paris, Sept. 3, 1783, 8 Stat. 80 (formally ending the United States War for Independence); 1 Charles Warren, The Supreme Court in United States History 99 (1922); Gibbons, supra note 1, at 1899–1902.
From time to time the Court has adverted to sovereign immunity as serving to protect the “dignity” of the states. It should not be assumed that such rhetoric is the basis of the immunity. If, say, the legislature of a state is considering waiver of the immunity generally, or more likely, in a specified class of cases, opposition to the measure on the ground of affront to the state’s dignity is hardly likely to affect the outcome in any degree, assuming that opposition on this basis is even voiced. On the other hand, if a member of the international community rejects a claim of sovereign immunity by another member, such rejection might be characterized as an affront to the “dignity” of the latter because nations still talk in terms of constraint of the person of the sovereign or the latter’s ambassador. More realistically, the conduct complained of is a kind that provokes resentment and possible retaliation, on a basis more substantial than loss of “dignity.” Sovereign immunity is based upon raw power, which in the case of the United States is distributed by the Constitution; “dignity” has nothing to do with it. The Founding Fathers were not beguiled by such a notion. See infra notes 22, 30–33 and accompanying text.
34 See Atascadero, 473 U.S. at 278 n.28 (Brennan, J., dissenting); Gibbons, supra note 1, at 1908, 1912–14.
35 1 Elliot’s Debates, supra note 27, at 336.
36 Id. at 329.
37 Id.
38 The amendments proposed by each of these states would have eliminated the Article III provisions vesting the federal judiciary with jurisdiction over controversies between a state and citizens of another state. See 3 id. at 660–61 (Virginia); 4 id. at 246 (North Carolina).
39 When the amendments were under consideration, Thomas Tudor Tucker of South Carolina proposed an amendment that would have stricken from Article III, Section 2, the clause conferring jurisdiction of controversies between a state and a citizen of another state. The amendment was not reported to the full House of Representatives, and thus failed. See 1 Julius Goebel, Jr., History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, at 438–39 (1971); Fletcher, Historical Interpretation, supra note 1, at 1052 & n.81.
40 One commentator related that section 13 of the Judiciary Act, which conferred original jurisdiction on the Supreme Court in controversies between states and noncitizens, went through Congress unchallenged, and indeed that it was not even discussed. Fletcher, Historical Interpretation, supra note 1, at 1053–54; see also Judiciary Act of 1789, ch. 20, § 13, 1 Stat. 73, 80.
41 2 U.S. at 419.
42 Id. at 480. All the Justices wrote opinions. Blair and Cushing wrote narrowly and briefly, relying on the language of Article III, and on indications elsewhere in the Constitution, that in their view showed that the exercise of jurisdiction over the states as defendants was contemplated. See id. at 450–53 (Blair, J.); id. at 466–69 (Cushing, J.). Justices Wilson and Jay made the same points, but also wrote broadly to the effect that sovereign immunity was incompatible with the American system of constitutional government. See id. at 453–66 (Wilson, J.); id. at 469–79 (Jay, J.). Concerning Jay’s views on the suability of the United States, see supra note 24 and accompanying text. Iredell was the sole dissenter. Id. at 429–50 (Iredell, J., dissenting). He maintained that, as the law then stood, the controlling principle was sovereign immunity, as an aspect of the common law that, he said, derived from England. Id. at 437, 449. He expressed doubt whether the Constitution permitted invasion of the sovereign immunity of the states, but said that this was an open question. Id. at 449–50. Congress had made no intervention along this line, and that for him concluded the matter. Id. at 449.
43 This bill was not enacted into law. 1 Warren, supra note 33, at 100–01.
44 Gibbons, supra note 1, at 1931.
45 Fletcher, Historical Interpretation, supra note 1, at 1059.
46 527 U.S. 706 (1999).
47 134 U.S. 1 (1890).
48 292 U.S. 313 (1934); see also infra notes 85–100, 143–159, 167–174 and accompanying text (discussing these cases).
49 473 U.S. at 274 (Brennan, J., dissenting).
50 See cases cited, supra note 2.
51 See infra notes 108–111 and accompanying text. The views of scholars regarding the Eleventh Amendment also reveal a basic affinity with the account set forth in the Atascadero dissent. See infra notes 130–134 and accompanying text.
52 473 U.S. at 263–64, 278–79.
53 Id. at 278 n.28. Justice Brennan also failed to note that in two of the four states the proposals assumed survival of the immunity of the states and sought only clarification of that point. See supra notes 34–35 and accompanying text.
54 Atascadero, 473 U.S. at 264.
55 Id.
56 Id. Article III provided for two basic heads of jurisdiction—the party-based head of jurisdiction, which included the state-citizen diversity clause, and the subject matter-based head of jurisdiction, which included any claim arising under federal law. U.S. Const. art. III, § 2, cl. 1; Atascadero, 473 U.S. at 263 (Brennan, J., dissenting).
57 Atascadero, 473 U.S. at 264. One commentator drew the opposite inference from the silence during the ratification debates on the federal question and admiralty heads of jurisdiction. He believed that, standing alone, such silence was the “strongest evidence that the Constitution was not understood by its adopters to provide for private causes of action against the states” under either of those heads of jurisdiction. Fletcher, Historical Interpretation, supra note 1, at 1071 (emphasis supplied). He also discussed three factors that “suggest the opposite conclusion.” Id. at 1072. These were: (1) the fact that Supreme Court jurisdiction was established for controversies between states; (2) the fact that the Constitution contained provisions designed to protect individuals from states; and (3) the potential for statutorily created private causes against states, which the federal courts would then be competent to hear. Id. at 1072–74.
58 1 Warren, supra note 33, at 99.
59 In Atascadero, Brennan stated:

A plaintiff seeking federal jurisdiction against a State under the state-citizen or state-alien diversity clauses would be asserting a cause of action based on state law, since a federal question or admiralty claim would provide an independent basis for jurisdiction that did not depend on the identity of the parties.

473 U.S. at 262. That availability of the federal question and admiralty jurisdictions provided a basis for bringing a federal claim did not preclude resort to the diversity jurisdiction to pursue that claim. The availability of one head of jurisdiction does not bar resort to others. That choice is for the plaintiff, not the court.
60 Id. at 268 (“Of course, where the cause of action is based on state law, as it would be in a suit under the state-citizen diversity clause, the ‘sovereign power’ whose law governed would be the state.”).
61 Id. at 282 n.33.
62 It was the Bivens decision, discussed infra notes 280–284 and accompanying text, that introduced the notion of a cause of action deriving directly from the Constitution itself. Justice Brennan remarked that prior to Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), “it was not at all clear that the Contracts Clause applied to contracts to which the state was a party. “ Atascadero, 473 U.S. at 283 n.33. But the possibility that the Contracts Clause would be applied to such contracts was not so remote that it would have been dismissed out of hand. Further, at the relevant time some key figures thought it would apply. Thus, Edmund Randolph was pleased that the states, as he saw it, would be obliged to pay their debts; and Patrick Henry expressed apprehension that this would indeed be the effect of ratification. See Fletcher, Historical Interpretation, supra note 1, at 1050 n.70.
63 U.S. Const. art. I, § 10, cl. 1.
64 Cf. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 903 (1824) (Johnson, J., dissenting) (“But how the act of Congress is to be introduced into an action of trespass, ejectment, or slander, before the defendant is called to plead, I cannot imagine.”).
65 These pleading conventions are discussed in Alfred Hill, Constitutional Remedies, 69 Colum. L. Rev. 1109, 1128–29 (1969) [hereinafter Hill, Constitutional Remedies]. For fuller treatment, see 1 Joseph Chitty, Treatise on Pleading and Parties to Actions *235–60; *390–414, *486–90, *518–42, *603–06, *617–24 (16th Am. ed. 1876); Benjamin J. Shipman, Handbook of Common Law Pleading 208–13, 298–301, 366–81 (Henry W. Ballantine ed., West Publishing Co. 3d ed. 1923) (1894). In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, in reversing the Second Circuit Court of Appeals, the Supreme Court held for the first time that a suit for damages occasioned by a violation of constitutional rights could be brought “on” the constitutional provisions allegedly violated. See 403 U.S. 388, 397 (1971); see also infra notes 280–281 and accompanying text (discussing Bivens in more detail). In Bivens, the defendants were federal law-enforcement officers charged with such violations. Id. at 389. Prior to Bivens it was thought that such an action could be brought only for trespassory conduct violative of state law, although it was acknowledged that federal law would ordinarily control the outcome. For instance, see the opinion of the Second Circuit in Bivens, 409 F.2d 718, 721–22 (2d Cir. 1969); see also infra note 71 (discussing the well-pleaded complaint rule in the federal courts).
66 Issues of state law might be also be present in such a case. Whether the plaintiff had a right to possession in the first place might turn on the validity of the instrument under which the entitlement was claimed. Such a case would be governed by both federal and state law. The case was not primarily one under state law except in the sense that whether the plaintiff had any right at all was an antecedent question—and then only if that issue was raised.
67 14 U.S. (1 Wheat.) 304, 306–07, 360–62 (1816).
68 17 U.S. (4 Wheat.) 122, 197–200 (1819).
69 10 U.S. (6 Cranch) 87, 137–39 (1810).
70 Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat) 518, 654 (1819).
71 E.g., Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152–54 (1908). This practice persists to the present day, under the doctrine of the well-pleaded complaint rule, even though common-law pleading has long been superseded by code pleading. See Richard H. Fallon, Jr., et al., Hart & Wechsler’s The Federal Courts and The Federal System 909–13 (4th ed. 1996) [hereinafter Hart & Wechsler].
72 The Federalist, No. 82, supra note 22, at 467 (Alexander Hamilton).
73 Id.
74 See supra notes 22–48 and accompanying text.
75 Atascadero, 473 U.S. at 287 n.40.
76 See supra note 30 and accompanying text.
77 See supra notes 27–29 and accompanying text.
78 517 U.S. 44, 72–73, 76 (1996).
79 Id. at 130 (Souter, J., dissenting) (quoting United States v. Lee, 106 U.S. 196, 205 (1882)).
80 Id. at 137–38.
81 Id. at 140 (emphasis supplied). This aversion is understandable, since, as Madison explained, such a reception would largely have obliterated such powers as were left to the states by the Constitution. See id. at 141.
82 Id. at 142.
83 517 U.S. at 137–38.
84 See discussion infra Part I.F.1.
85 527 U.S. 706, 748 (1999).
86 Id. at 763.
87 Id. at 761.
88 Id. at 763.
89 Id. at 764.
90 Alden, 527 U.S. at 770 n.9.
91 Id. at 791.
92 Id. at 795, 799. The dissent said that one of the problems with the Court’s “absolutist” natural law doctrine was that the history discussed by the Court showed that only Hamilton had subscribed to this doctrine. Id. at 773. This was said to be evidenced by Hamilton’s statement that the immunity is “‘inherent in the nature of sovereignty.’” Id. at 773 (quoting The Federalist, No. 81, supra note 22, at 455 (Alexander Hamilton)). Hamilton, according to the dissenting opinion, “chose his words carefully.” Id. at 2275. On the other hand, Madison and Marshall were thought not to be adherents of the natural law view, id. at 778, although Madison had said, “It is not in the power of individuals to call any state into court,” and Marshall had said, “It is not rational to suppose that the sovereign power should be dragged before a court.” See notes 30–31 and accompanying text. This characterization of the views of Madison and Marshall was necessary to support the dissent’s conclusion that, at the ratification debates, in which both men participated, “[n]o one was espousing an indefeasible, natural law view of sovereign immunity.” Id. at 778. Hamilton’s statement, on the other hand, was made not at a ratification convention, but had appeared in the pages of The Federalist. See supra note 22.
93 205 U.S. 349 (1907).
94 Alden, 527 U.S. at 797.
95 Kawananakoa, 205 U.S. at 353.
96 In College Savings Bank v. Florida Prepaid Postsecondary Expense Board, Justice Breyer’s dissenting opinion spoke of the Court’s view of sovereign immunity as “an immutable constitutional principle more akin to the thought of James I than of James Madison.” 527 U.S. 666, 704 (1999). This comparison is inapt because James Madison was a strong proponent of sovereign immunity. See supra note 30. In this connection, it may be observed that the Alden dissenters relied on Blackstone’s comment that the “‘general and indisputable rule [is], that where there is a legal right, there is also a legal remedy . . . .’” See 527 U.S. at 812 (Souter, J., dissenting) (quoting 3 William Blackstone, Commentaries *23). The dissenters also cited Chief Justice Marshall to the same effect; Marshall asked the rhetorical question: “‘If he has a right, and that right has been violated, do the laws of his country afford him a remedy?’” See id. (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)). But both Blackstone and Marshall were proponents of sovereign immunity. See 3 Blackstone, supra, at *244–45; supra note 31.
97 Alden, 527 U.S. at 796.
98 See id. at 761
99 Id. at 762.
100 See infra notes 192–248 and accompanying text.
101 528 U.S. 62, 92 (2000).
102 See id. at 92 (Stevens, J., dissenting).
103 Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954).
104 Kimel, 528 U.S. at 93 (citing Wechsler, supra note 103, at 543).
105 Wechsler said:

This is not to say that the Court can decline to measure national enactments by the Constitution when it is called upon to face the question in the course of ordinary litigation. . . . It is rather to say that the Court is on weakest ground when it opposes its interpretation of the Constitution to that of Congress in the interest of the states, whose representatives control the legislative process and, by hypothesis, have broadly acquiesced in sanctioning the challenged Act of Congress.

Wechsler, supra note 103, at 559.
106 It is not difficult to discern in these statutes a response to the demands of government employees’ unions, women’s groups and lobbies for senior citizens. See infra notes 227–233 and accompanying text (discussing these statutes).
107 528 U.S. at 96.
108 See commentators listed infra note 111; see also Engdahl, supra note 1, at 8–9.
109 See, e.g., Engdahl supra note 1, at 7; Field, Part I, supra note 1, at 527–38.
110 See generally, e.g., Meltzer, supra note 1; Shapiro, supra note 1; Sherry, supra note 1.
111 Judge Gibbons asserted that sovereign immunity was a foreign notion not native to American shores in the colonial period. See Gibbons, supra note 1, at 1895–97. He relied for the most part on the absence at that time of express references to the immunity, but failed to consider the absence of litigation against the Crown because the English doctrine of sovereign immunity shielded only the King, not his officers, nor the government as such. See id. The break with England changed the fundamental basis of sovereign immunity in the new sovereign territories, with the state replacing the King. Gibbons found it noteworthy that few of the early state constitutions expressly provided for sovereign immunity. Id. at 1897–99. But federal and state courts, without regard to provision therefor in the constitutions of their respective jurisdictions, have from the start assumed sovereign immunity to be in force as governing law, unless abolished or modified by the legislature. See supra note 8 and accompanying text.
Gibbons also maintained that state-noncitizen jurisdiction in the federal courts was understood and generally accepted as an important device for redress against state violations of the Peace Treaty of 1783. He argued that with the states suable for their violations, the United States would have been in a position to deal more effectively with the British in the ongoing controversy over the Peace Treaty. Gibbons, supra note 1, at 1899–1902, 1916–20. In this connection, he referred to a memorandum from Jefferson as Secretary of State to the British Minister Plenipotentiary, George Hammond, declaring that the Peace Treaty could be in enforced in the federal courts. Id. at 1919–20. Gibbons conceded that the memo did not expressly refer to suits against the states themselves, as distinguished from suits against private citizens. Id. at 1920. On the other hand, in regard to the trio of major statesmen who had declared their understanding that the Constitution preserved the immunity of the states, he accused Madison of “dissembling,” id. at 1906; Hamilton of writing “political propaganda,” id. at 1912 n.112; and stated that Marshall, “contrary to his statement during the Virginia ratification convention . . . did not believe that an original understanding on sovereign immunity existed.” Id. at 1948 n.319.
Professor Orth stated: “The search for the original understanding on state sovereign immunity bears this much resemblance to the quest for the Holy Grail: there is enough to be found so that the faithful of whatever persuasion can find their heart’s desire.” Orth, supra note 1, at 28. He was of a different view in commenting on Hans v. Louisiana, 134 U.S. 1 (1890), which he maintained was egregiously wrong in rejecting Chisholm. In his view Chisholm was correct in its disregard of the original understanding. See Orth, supra note 1, at 74–76.
Professor Pfander has written extensively on sovereign immunity, but this writer has found his arguments unpersuasive. See Pfander’s articles listed supra note 1. For example, he stated that a “close reading” of The Federalist No. 81, where Hamilton declared that the immunity of a state from being sued without its consent “is inherent in the nature of sovereignty,” The Federalist No. 81, supra note 22, at 455, showed that Hamilton was really “affirm[ing] the surrender of state sovereign immunity.” Pfander, State-Party Cases, supra note 1, at 629 (emphasis added). The basis of Pfander’s reading is essentially no more than that Hamilton was writing in the context of a suit against a state on its indebtedness. Pfander, State-Party Cases, supra note 1, at 629–32. Madison’s statement that “[i]t is not in the power of individuals to call any state into court” is discounted on similar grounds. Id. at 634. Moreover, says Pfander, Madison did not “deny that states were subject to suit in actions that arose under federal law.” Id. (emphasis supplied). In a later article, he declared that suits against states on federal claims were “regarded as regrettably necessary” by the Framers. Pfander, State Suability, supra note 1, at 1368. But this sense of regrettable necessity is not established, in the opinion of this writer.
In another article, Pfander contended that the Petition Clause of the First Amendment should be understood as supporting judicial override of federal sovereign immunity. See Pfander, Right to Petition, supra note 1, at 953–55; 980–89. He noted that, in adaptation of English practice, a substantial number of states, from an early time, had essentially a petition procedure for suits against states in their courts. Id. at 934–37; 991–1014. He conceded, however, that in all instances this was the product of legislative action. Id. at 937, 1013–14. Such legislative action has never abated; today, as a result of such action, the immunity of the government from suit is very much the exception rather than the rule. The question is whether the judiciary may initiate such a practice by itself.
Professor Amar declared that sovereign immunity can “conflict[] with the Constitution’s structural principle of full remedies for violations of legal rights against government.” Amar, supra note 1, at 1489. He derived this principle from: (1) the system of separation of powers, and the related system of checks and balances, id. at 1492–1506; (2) his view that sovereign immunity resides in the people rather than in governments, id. at 1429–41, 1485; (3) his view that “[t]he legal rights against government enshrined in the Constitution strongly imply corresponding governmental obligations to ensure full redress whenever these rights are violated;” and (4) his view that full remedies for constitutional wrongs committed by governments will often require government liability. Id. at 1485. He rejected the notion that the “structural principle of full remedies is somehow . . . limited by an equally valid structural postulate [of sovereign immunity].” Id. at 1489–90. “The latter principle,” he says, “is simply not part of our Constitution’s structure. Its sole basis is the British idea [of sovereign immunity].” Id. at 1490. He made these points while maintaining silence concerning the history that supports the argument for an original misunderstanding. Thus, he does not even mention the pro-immunity positions of Madison, Hamilton and Marshall.
Professor (as he then was) Fletcher stated his belief that federal legislative and judicial power exist to override state sovereign immunity, but failed to consider whether this may be precluded by an understanding underlying adoption of the Constitution. See Fletcher, Historical Interpretation, supra note 1, at 1127–30. To be sure, he observed that if there was serious apprehension that the state-citizen diversity clauses would result in loss of state sovereign immunity, the discussion of that issue would have occupied a more “prominent place . . . in the debates over the Constitution or the deliberations on the [first] Judiciary Act.” Id. at 1054. But he doubted that there was any sentiment for protection of states against federal claims. In common with other commentators, he assumed that the basis of a court’s jurisdiction is determinative of the issues that the court will be called upon to decide. Id. at 1070–71. Hence, he believed that claims under federal law could be pressed only under the federal question or admiralty jurisdictions. Id. at 1071. Apparently, these considerations accounted for his conclusion that the suability of states on federal claims “was probably an open question, in part, because it was not fully visible when the Constitution was adopted and probably also in part because, to the extent that it was visible, it presented too many difficult political and theoretical issues to permit explicit resolution.” Id. at 1078. In a subsequent article, he conceded error on this point, stating the bringing of federal-question suits was foreseeable. See Fletcher, Reply to Critics, supra note 1, at 1271–74; 1291–92. But he related this only to construction of the Eleventh Amendment, and not to the existence of an original understanding pertinent to the question of immunity.
Unlike Fletcher, Jacobs was aware of the extensive private litigation in which claims founded on federal law were redressed by the federal courts at an early time in litigation between private parties. See Clyde E. Jacobs, The Eleventh Amendment and Sovereign Immunity 72–73 (1972). As to whether states would be suable on such claims, he stated that no general understanding existed either way, but in context it is clear that he was speaking only of the ratification debates. Id. at 39–40, 68. His account of the near-contemporaneous reaction to Chisholm is more illuminating. He contended that there was no great concern with the problem of suits against states on their debts, since by the time of Chisholm the extent of such debt had been greatly reduced, owing, inter alia, to assumption of much of that debt by the federal government. Id. at 69–70. On the other hand, claims founded on Peace Treaty violations constituted a pressing problem. He stated:

[I]n Congress, as well as in the state legislatures, there was strong opposition to recognition of any liability to reimburse British creditors or to make restitution of seizures of Loyalist property. In fact, this was the transcendent political issue of 1794 and 1795, when the Eleventh Amendment was under active consideration, as provisions of the Jay Treaty clarifying the rights of Loyalists came under attack in Congress and throughout the country.

Id. at 70–71. But the threat posed by the Peace Treaty was no less a problem when the Constitution was adopted and ratified by the states, and is thus pertinent to the general understanding at the time. See also infra notes 179–180 (discussing the views of Professor Field).
112 See, e.g., Engdahl, supra note 1, at 5–7, 10, 22, 28; Fletcher, Historical Interpretation, supra note 1, at 1054, 1084–87; Hovenkamp, supra note 1, at 2238, 2241.
113 19 U.S. (6 Wheat.) 264 (1821). The Court considered the issue of state sovereign immunity in two principal parts. The first, discussed here, dealt with whether sovereign immunity barred Supreme Court review of state judgments, apart from the Eleventh Amendment. See id. at 378–405. Having found no bar, the Supreme Court, in the second part, reached the same conclusion in regard to the Eleventh Amendment. See id. at 405–12. This part of the opinion is considered infra notes 493–497 and accompanying text.
114 Cohens, 19 U.S. at 289.
115 Id. at 302, 380.
116 Id. at 383 (emphasis supplied).
117 See, e.g., Engdahl, supra note 1, at 10, 22, 28, 63–64; Fletcher, Historical Interpretation, supra note 1, at 1084–85; Gibbons, supra note 1, at 1953; Shapiro, supra note 1, at 69 & n.48. To like effect, see Seminole Tribe, 517 U.S. at 112–13 (Souter, J., dissenting). But see Orth, supra note 1, at 39–40 (recognizing that the Court dealt more narrowly with the issues than the quoted language would suggest).
118 Cohens, 19 U.S. at 405.
119 Thus the Court stated:

Were a state to lay a duty on exports, to collect the money and place it in her treasury, could the citizen who paid it . . . maintain a suit in this Court against such State, to recover back the money?

Perhaps not. Without, however, deciding such supposed case, we may say, that it is entirely unlike that under consideration. . . .

But let us vary the supposed case as to give it a real resemblance to that under consideration. Suppose a citizen to refuse to pay this export duty, and a suit to be instituted for the purpose of compelling him to pay it. He pleads the constitution of the United States in bar of the action, notwithstanding which the Court gives judgment against him. That would be a case arising under the constitution, and would be the very case before the Court.

. . . .

The case of a State which pays off its own debts with paper money, no more resembles this than do those to which we have already adverted. The courts have no jurisdiction over the contract. . . . But . . . suppose a State to prosecute one of its citizens for refusing paper money, who should plead the constitution in bar of such prosecution. If his plea should be overruled, and judgment rendered against him, his case would resemble this . . . .

Id. at 402–03 (emphasis added).
120 Amar, supra note 1, at 1477–78; Fletcher, Historical Interpretation, supra note 1, at 1074, 1108, 1127–30; Vazquez, supra note 1, at 1689.
121 E.g., Alden v. Maine, 527 U.S. 706, 715, 738 (1999); Seminole Tribe, 517 U.S. at 58.
122 See, e.g., Vicki C. Jackson, Principle and Compromise in Constitutional Adjudication: The Eleventh Amendment and State Sovereign Immunity, 75 Notre Dame L. Rev. 953, 974 (2000).
123 Alfred Hill, The Political Dimension of Constitutional Adjudication, 63 S. Cal. L. Rev. 1237, 1245, 1302 (1990). The thesis was the outcome of an attempt to find a principled rationalization for the Court’s persistence in developing what its critics called a “current” Constitution, in the face of argument by many of the same critics that the Court’s duty is to construe the Constitution in accordance with the original intent of the Framers. See id. at 1239–40. The principal focus of the Article was on the problem of women’s rights under the Equal Protection Clause. It was clear that the purpose of the Clause was to benefit the newly-emancipated slaves, and not at all to end the subordination of women. A decision that applied the clause to give equal rights to women, a year or two after the Clause became law, would have been greeted as an outrage, if not an act of lunacy. When, in Reed v. Reed, 4 U.S. 71 (1971), the Court first applied the Clause in that manner, the public reaction was muted, for equal rights for women was a concept that was then largely taken for granted. The decision was at odds with the original intent of the framers, but to insist that the framers, assuming foreknowledge of conditions in 1971, would have wanted the case decided on the basis of their intent in 1868 would be essentially arbitrary.
124 Principality of Monaco v. Mississippi, 292 U.S. 313, 322–23 (1934); see also supra note 168–174 and accompanying text.
125 See Pennsylvania v. Union Gas Co., 491 U.S. 1, 32 (1989) (Scalia, J., concurring in part, dissenting in part).
126 Restatement (Third) of Foreign Relations Law 451 & cmt. a (1986).
127 U.S. Const. amend. XI.
128 See, e.g., Lawrence C. Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342, 1371 (1989); William P. Marshall, The Diversity Theory of the Eleventh Amendment: A Critical Evaluation, 102 Harv. L. Rev. 1372, 1395–96 (1989); Calvin R. Massey, State Sovereign Immunity and the Tenth and Eleventh Amendments, 56 U. Chi. L. Rev. 61, 65–66 (1989); Gene R. Shreve, Letting Go of the Eleventh Amendment, 64 Ind. L.J. 601, 608–12 (1989). But see Fletcher, Reply to Critics, supra note 1, at 1276–79 (contending that the meaning of the Amendment’s language to contemporaries was otherwise); see also Lawrence C. Marshall, Correspondence, Exchange on the Eleventh Amendment, 57 U. Chi. L. Rev. 127, 128–31 (1996) (rebutting Fletcher’s contention).
129 This is now known as the diversity theory of the Eleventh Amendment. Its proponents include Amar, supra note 1, at 1473–76, 1481; Fletcher, Historical Interpretation, supra note 1, at 1060–63; Meltzer, supra note 1, at 10–13; Pfander, State Suability, supra note 1, at 1351; Shapiro, supra note 1, at 67–69; Sherry, supra note 128, at 1265–72. Professor Shreve, however, has referred to the diversity theory as a “fiction.” Shreve, supra note 1, at 610. The diversity theory has also been adopted by the minority justices. See Seminole Tribe, 517 U.S. at 82 (Stevens, J., dissenting); id. at 114 (Souter, J., dissenting); Atascadero, 473 U.S. at 289–91, 294 (Brennan, J., dissenting).
130 This version provided in pertinent part “that no State shall be liable to be made a party defendant in any of the Judicial Courts established or to be established under the authority of the United States, at the suit of any person or persons, citizens or foreigners . . . .” 1 Warren, supra note 33, at 101. It is not clear that a resolution to this effect was formally introduced. Gibbons, supra note 1, at 1926 n.186; but see Fletcher, Reply to Critics, supra note 1, at 1269–70 n.45 (“I have little doubt that Sedgwick introduced the proposed amendment.”).
131 At least this writer has experienced great difficulty in finding any recognition in their writings that federal claims were cognizable under the diversity jurisdiction. Here too we see the fallacy that the source of a court’s jurisdiction determines the nature of the issues the court will be called to decide. This fallacy is discussed supra notes 53–77 and accompanying text.
132 E.g., Seminole Tribe, 517 U.S. at 114 (Souter, J., dissenting); see also U.S. Const. art. III, § 2, cl. 1 (“The judicial Power shall extend to . . . Controversies . . . between a State and Citizens of another State.”).
133 E.g. Amar, supra note 1, at 1475; Fletcher, Historical Interpretation, supra note 1, at 1060–61, Meltzer, supra note 1, at 10–11.
134 He credited eight academic critics for their “critical look at the historic record.” 473 U.S. at 258–59 n.11 (citing critics). His dissenting opinion is interlarded with references to these and other critics.
135 See supra notes 53–77 and accompanying text.
136 Except for a very brief period after adoption of the Constitution, the federal circuit courts were not granted original federal-question jurisdiction until 1875. See Hart & Wechsler, supra note 71, at 879–82.
137 4 Annals of Cong. 30 (1794).
138 Justice Brennan argued that “Congress may well have rejected Gallatin’s proposal precisely because to adopt that proposal would have implied some limitation on the ability of the federal courts to hear nontreaty based federal-question claims.” Atascadero, 473 U.S. at 286 n.40 (Brennan, J., dissenting). Fletcher’s explanation, as he puts it, “parallels” that of Justice Brennan. William C. Fletcher, Exchange on the Eleventh Amendment, 57 U. Chi. L. Rev. 118, 131, 135 (1990). The subject is more fully discussed in Fletcher, Reply to Critics, supra note 1, at 1185–87.
139 Massey, supra note 128, at 114.
140 See supra Part I.A.
141 2 U.S. at 480; see also supra notes 41–45 and accompanying text (discussing Chisholm).
142 See supra text accompanying note 76.
143 134 U.S. 1, 1–3 (1890).
144 Id. at 10.
145 Id. at 21.
146 Id. at 10.
147 Id.
148 But see Currie, supra note 1, at 547 (“I am that rara avis, a law professor who thinks that Hans v. Louisiana was rightly decided.”).
149 Amar, supra note 1, at 1476; Gibbons, supra note 1, at 1893–94, 2001; Massey, supra note 128, at 66; Pfander, State Suability, supra note 1, at 1368; Sherry, supra note 1, at 1260.
150 Burnham, supra note 1, at 995; Fletcher, Reply to Critics, supra note 1, at 1299; Jackson, supra note 1, at 49–50.
151 134 U.S. at 10.
152 Id. at 15–16.
153 Id. at 11. The Court’s “shock of surprise” thesis has been attacked. Thus, Gibbons remarked that the Federalists agreed to the Amendment reluctantly, in response to “republican clamor,” Gibbons, supra note 1, at 1926, which had won strong support in at least eight states for a constitutional convention to undo Chisholm. Id. at 1926–39. Whatever the politics of the time, the fact that the Amendment cleared Congress in six months, with overwhelming majorities in both houses, and was ratified by the states within two years of the decision, speaks volumes for the surprise and outrage that greeted Chisholm. See Fletcher, Historical Interpretation, supra note 1, at 1058–59 & n.121.
Orth saw no significance in speedy adoption of the Amendment. Orth, supra note 1, at 27. He stated, surprisingly in light of the times, that “action by twelve seaboard states need not be time-consuming.” Id. Perhaps more surprisingly, he stated that the “near impossibility of amending the Constitution today” is owing to fact that there are now fifty states and that their legislatures are busier than they used to be. Id.
Justice Souter, dissenting in Seminole Tribe contended that the “shock of surprise” thesis was “contradicted” by the fact that it took two full years to get the Amendment ratified. 517 U.S. at 107–08 n.5 (citing Gibbons, supra note 1, at 1926–27). Subsequently, dissenting in Alden, Justice Souter advanced a different argument for the same conclusion: namely, that evidence existed of some contemporaneous public support for Chisholm. 527 U.S. at 794. But see Richard H. Fallon, Jr., The Ideologies of Federal Courts Law, 74 Va. L. Rev. 1143, 1191 (1988) (contending that the reaction to the Chisholm decision “clearly establishes Chisholm’s incompatibility with prevailing political assumptions.”).
154 Hans, 134 U.S. at 12.
155 Id.
156 Id. at 15.
157 Concerning the original understanding, the critics stated that the Court set forth passages representing the views of Hamilton, Madison and Marshall, while ignoring the views of their opponents. E.g., Field, Part I, supra note 1, at 527–29 & n.54. Actually, the Court noted that George Mason and Patrick Henry espoused these views, but without quotation from their remarks at the Virginia convention on ratification. See Hans, 134 U.S. at 14. In any event, the Court declared that the outlook of the opponents was reflected in the decision in Chisholm, and that this outlook, and Chisholm with it, had been resoundingly rejected by speedy adoption of the Eleventh Amendment, with resulting vindication of the original understanding. See id. at 11–12. The speed with which the Amendment became law lends strong support to this conclusion.
158 See discussion supra Part I.A.1.
159 E.g., Engdahl, supra note 1, at 30–31, 60–61 (calling the Court’s opinion a “naked judicial fiat”).
160 19 U.S. at 264. See also supra note 119 and accompanying text.
161 22 U.S. at 738.
The holding was that the Eleventh Amendment is not applicable unless the state is a party of record—a position later modified by the Court in In re Ayers, 123 U.S. 443, 487 (1887). Osborne, 22 U.S. at 738.
Marshall recognized, however, that even though the state was not a party of record, it might have an “interest” in the litigation. He said in that situation a court would be obliged to determine “what degree of interest shall be sufficient to change the parties, and arrest the proceedings against the individual.” Id. at 853. Presumably, a sufficient “degree of interest” is one that shows the suit to be in effect against the state. Cf. United States v. Peters, 9 U.S. (5 Cranch) 115, 139 (1809).
There is additional discussion in the Osborne opinion bearing on this point. The suit was against Ohio officers for funds of the Bank that had been seized in the collection of a state tax that was invalid under McCulloch v. Maryland, 17 U.S. at 316. The sum involved, consisting of coin and notes in the amount of $98,000, had been “retained . . . carefully in a trunk separate from the other funds in the state treasury.” 22 U.S. at 822. The continuous segregation of the funds from the time of seizure was mentioned no fewer than eight times. Id. at 833–36, 845, 849, 852, 858. The obvious implication was that there could have been no recovery in the event of commingling, on the ground of the state’s sovereign immunity.
162 See the collection of cases listed in Seminole Tribe, 517 U.S. at 54 n.7.
163 178 U.S. 436, 448–49 (1900).
164 256 U.S. 490, 497–98, 500 (1921).
165 See id. at 497–98.
166 Id. at 497.
167 292 U.S. 313 (1934).
168 Id. at 317–18.
169 Id. at 320–21.
170 Id. at 321.
171 Id. at 322–23 (citations omitted).
172 Principality of Monaco, 292 U.S. at 329. The Court noted that while jurisdiction in such a case “is not conferred by the Constitution in express words, it is inherent in the constitutional plan.” Id. (citations omitted).
173 Id. at 328–29.
174 Id. at 330–32.
175 E.g., Seminole Tribe, 517 U.S. at 54, 68–73; Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 683–700 (1982). Blatchford was a suit by several Alaskan Native villages against an Alaskan state officer seeking an order requiring payment to them of money allegedly owed under a state revenue-sharing statute. See 501 U.S. at 775. The suit was deemed one against the State. The Eleventh Amendment was not applicable by its terms, but the Court sustained a plea of sovereign immunity, stating as follows:

Despite the narrowness of its terms, since Hans v. Louisiana . . . we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty . . . and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the “plan of the convention.”

Id. at 779 (citations omitted & emphasis supplied). This seems to be an unexceptionable formulation of the law of sovereign immunity as it affects the states. Certainly, it does not look like a statement that the Amendment, as such, governs in contexts where by its terms it does not apply. Yet shortly following the quoted language, the Court declared that it was the Amendment that had been the basis for sustaining the finding of sovereign immunity in Principality of Monaco. See id. at 780–81; supra notes 167–174 and accompanying text. Further, the holding in Blatchford itself seems to have rested on the Eleventh Amendment. See 501 U.S. at 779–82. It was so understood by the dissenters. Id. at 788–89 (Blackmun, J., dissenting). This is incomprehensible, for if the states entered the Union with their “sovereignty intact,” and are subject to suit (absent waiver) only if they gave their consent in the “plan of the convention,” then their immunity does not derive from the subsequently-adopted Eleventh Amendment. It obviously follows that, as the Court said, the Amendment, within its stated compass, merely “confirms” a prior state of the law.
176 Alden, 527 U.S. at 713. John Nowak has recently stated that the disavowal in Alden of reliance on the Eleventh Amendment was dishonest. See John E. Nowak, The Gang of Five & the Second Coming of an Anti-Reconstruction Supreme Court, 75 Notre Dame L. Rev. 1091, 1094 (2000). He bases this argument mainly on his view that the Alden Court placed substantial reliance on Hans, which he still regards as an Eleventh Amendment decision. See id.
177 The point has been vigorously maintained in some recent dissenting opinions by Supreme Court Justices. See Alden, 527 U.S. at 762–98 (Souter, J., dissenting); Seminole Tribe, 517 U.S. at 100–09 (Souter, J., dissenting).
178 E.g., Burnham, supra note 1, at 933–34; Field, supra note 1, at 522–38; Hovenkamp, supra note 1, at 2244–45; Jackson, supra note 1, at 75–84; Shapiro, supra note 1, at 69. See also Gibbons, supra note 1, at 1973 (“a narrow and malleable common law doctrine”).
179 See Field, Part I, supra note 1, at 522–38.
180 Id.
181 See supra note 120 (listing commentators who have argued for the use of judicial power to abolish sovereign immunity because judicial power is co-extensive with legislative power).
182 See, e.g., Hart & Wechsler, supra note 71, at 1027–39 (legislation on the federal level).
183 See infra notes 187–190 and accompanying text.
184 See, e.g., Ballard v. Ypsilanti Township, 577 N.W.2d 890, 895 (Mich. 1998); Brown v. State, 674 N.E.2d 1129, 1133 (N.Y. 1996).
185 Cf. Seminole Tribe, 517 U.S. at 69 (“It . . . is noteworthy that the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment.”).
186 E.g., Stone v. Ariz. Highway Comm’n, 381 P.2d 107, 113 (Ariz. 1963) (concluding doctrine of sovereign immunity was judicially created and can be changed or abrogated by same judicial process (this means common-law doctrine)); Colo. Racing Comm’n v. Brush Racing Assoc’n, 316 P.2d 582, 585–86 (Colo. 1957) (citing Boxberger v. State Highway Dep’t, 250 P.2d 1007, 1008 (Colo. 1952) (stating that “[the] doctrine of sovereign immunity originates through the course of unwritten common law”)).
187 Muskopf v. Corning Hosp. Dist., 359 P.2d 457, 463 (Cal. 1961); Molitor v. Kaneland Cmty. Unit Dist. No. 302, 163 N.E.2d 89, 96 (Ill. 1959). The immunity of political subdivisions from suit was not originally based on the theory that they were sovereign. See Muskopf, 359 P.2d at 459; see also supra note 186.
188 Cf. Holytz v. City of Milwaukee, 115 N.W.2d 618, 625 (Wis. 1962) (declaring, in this case against a city, that the abrogation ruling applied to all bodies within the state, including the state, counties, cities, etc.).
189 E.g., Muskopf, 359 P.2d at 458; Molitor, 163 N.E.2d at 96; Holytz, 115 N.W.2d at 625.
190 Daniel v. Williams, 474 U.S. 327, 332–33 (1986).
191 The writer has contended elsewhere that the federal common law is best understood as the law applied in areas where state competence has been ousted by the Constitution or congressional action—areas in which neither the Constitution nor statutes happen to provide guidelines for the judiciary, with the result that federal courts must make up the law as best they can as controversies arise. Otherwise, in applying federal law, the federal courts can be seen as simply implementing the federal Constitution and statutes. See Alfred Hill, The Law-Making Power of the Federal Courts: Constitutional Preemption, 67 Colum. L. Rev. 1024, 1080–81 (1967) [hereinafter Hill, Law-Making Power].
192 377 U.S. 184 (1964).
193 See infra text accompanying notes 252–261.
194 Union Gas, 491 U.S. at 19.
195 Id. at 20 (emphasis supplied).
196 See infra note 252 and accompanying text (discussing state consent to suit).
197 517 U.S. at 72–73.
198 527 U.S. at 754, 759–60.
199 This began with decisions validating legislation of the New Deal. E.g., NLRB v. Johns & Lauglin Steel Co., 301 U.S. 1 (1937); Wickard v. Filburn, 317 U.S. 111 (1942).
200 514 U.S. 549 (1995).
201 529 U.S. 598 (2000).
202 Union Gas (since overruled) involved the federal superfund legislation (CERCLA), under which the federal government was authorized to clean up toxic sites and recover its costs from those responsible, including states. In that case, the United States sued Union Gas as a responsible party, and Union Gas in turn filed a third-party complaint against Pennsylvania, contending that the state was partially responsible. See 491 U.S. at 6. To show why Congress could override state sovereign immunity pursuant to its “plenary” power under the Commerce Clause, the Court made an argument based on what it conceived to be the practicalities of the situation. Id. at 15–16. It reasoned that for the United States to incur all cleanup costs in the first instance would impose upon it an undue financial burden. This burden would be relieved if private parties would engage in voluntary cleanups, and they would be encouraged to do so if they were free to sue states for partial reimbursement. Id. at 20–22. The writer believes this to be a “rational basis” argument.
College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board involved a federal statute authorizing suit against states for trademark violations. See 527 U.S. 666, 667–68 (1999). The dissenting opinion of Justice Breyer, foregoing reliance on Section 5 of the Fourteenth Amendment, argued that Article I supported the legislation. Justice Breyer emphasized the desirability of “legislative flexibility,” id. at 701, to allow “the creation of incentive-based or decentralized regimes . . . assigning roles . . . not just to federal administrators, but to citizens . . . .” Id. at 702. To withhold such power from Congress, he said, “threatens the Nation’s ability to enact economic legislation needed for the future in much the way [as did] Lochner v. New York [198 U.S. 45 (1905)].” Id. at 701.
203 See Alden, 527 U.S. at 711 (involving Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 (1994); alleging state probation officers violated the overtime provisions of FLSA and sued for compensation and liquidated damages).
204 See discussion infra Part I.G.2.
205 427 U.S. 445, 456 (1976). In Fitzpatrick, the federal statute involved was Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of “race, color, religion, sex, or national origin” and, by its express terms, applies to the states as employers. Id. at 447–48. Further, Congress had made clear its reliance on Section 5 of the Fourteenth Amendment. See id. at 458 (Stevens, J., concurring); see also id. at 453 n.9 (Rehnquist, J., majority opinion) (concluding that Congress exercised its powers under Section 5 in adopting the 1972 Amendments to Title VII, which extended coverage of Title VII to the states as employers). Section 5 legislation authorizing suits against states is of recent origin. For over one hundred years, Congress has exercised its implementation powers under the Civil War Amendments without breaching state sovereign immunity. See Katzenbach v. Morgan, 384 U.S. 641, 643, 658 (1966) (upholding a Section 5 statute that struck down a New York State literacy test that in effect disenfranchised large numbers of persons literate only in Spanish; the enforcement mechanism was embodied in a provision stating that “no person should be denied the right to vote” by reason of failure to meet the literacy requirement); South Carolina v. Katzenbach, 383 U.S. 301, 315–16, 337 (1966) (concluding that disputed portions of the Voting Rights Act of 1965, which provided for extensive federal interference with state election machinery with a view to ending practices that disenfranchised African Americans, were a valid means for carrying out the commands of the Fifteenth Amendment; the statute did not provide for suits against states and the question of sovereign immunity was not raised); Strauder v. West Virginia, 100 U.S. 303, 312 (1879) (involving a statute that provided for removal to federal court of certain cases involving civil rights where the problem was exclusion of African Americans from grand juries); Civil Rights Cases, 109 U.S. 3, 8 (1883) (involving a statute that provided for criminal and civil penalties against private persons guilty of racial discrimination in denial of access to places of public accommodation).
206 See Fitzpatrick, 427 U.S. at 448–51.
207 See id. at 456. Accordingly, retroactive benefits and attorneys fees were held to be recoverable from the state. Id. at 456–57.
208 427 U.S. at 457 (Brennan, J., concurring). Subsequently, the Court rendered a similar ruling in a case where the Eleventh Amendment did apply because the parties were from different states. See Florida Prepaid, 527 U.S. at 630–31.
209 Id. at 456 (emphasis supplied).
210 Id. at 455.
211 Id. at 456 (emphasis supplied).
212 The question of sovereign immunity in general, or the Eleventh Amendment in particular, was not raised in Boerne. The plaintiff had brought suit against the City of Boerne in a federal district court for denial of a permit. A municipality is not a state instrumentality and may not invoke sovereign immunity as a bar to a federal claim. See infra Part I.I.
213 100 U.S. 339 (1880).
214 383 U.S. 301 (1966).
215 517 U.S. 44, 65 (1996).
216 Chaves v. Arte Publico Press, 157 F.3d 282, 296 (5th Cir. 1998) (Judge John Minor Wisdom, dissenting).
217 521 U.S. 507, 519 (1997); see also U.S. Const. amend. XIV, § 5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”).
218 Boerne, 521 U.S. at 519. Justice O’Connor, joined in dissent by Justice Breyer, agreed that the “Court’s careful and historical analysis” did indeed establish this principle. Id. at 545. The remaining dissenter, Justice Souter, did not dispute the point in his own dissenting opinion. Id. at 566.
219 It was on this ground that relief was denied in Boerne. See id. at 536.
220 427 U.S. at 456. Only Justice Stevens was troubled by this aspect of the opinion. In his concurring opinion, however, he said no more than this: “I question whether § 5 of that Amendment is an adequate reply to Connecticut’s Eleventh Amendment defense. I believe the defense should be rejected for a different reason.” Fitzpatrick, 427 U.S. at 458 (Stevens, J., concurring). He then advanced several reasons, among them his conviction that Congress possessed ample power to adopt such a statute under Article I. Id. In his separate concurring opinion, Justice Brennan said nothing about the Court’s reasoning, relying on his own understanding, advanced in his earlier dissenting opinions and then for the Court in Union Gas, that the states had surrendered their immunity with adoption of the Constitution. Id. at 457–58 (Brennan, J., concurring). Under his views the subsequent adoption of the Eleventh Amendment was irrelevant.
221 See Fallon, supra note 153, at 1199–1200 (contending that the Fitzpatrick Court’s “conclusion that section five . . . authorizes Congress to abrogate the states’ constitutional immunity reflects a judgment about historical intent that is by no means obvious and is probably mistaken”).
222 Hutto v. Finney, 437 U.S. 678 (1978). In Hutto, the Court said that “[c]osts have traditionally been awarded without regard for the States’ Eleventh Amendment immunity.” 437 U.S. 678, 695 (1978). But the authorities cited for this point all involved suits by one state against another under the Supreme Court’s original jurisdiction. See id. (citing Missouri v. Iowa, 48 U.S. (7 How.) 660, 681 (1849); North Dakota v. Minnesota, 263 U.S. 583 (1924) (collecting cases)). Sovereign immunity has never been recognized in such cases, for otherwise the constitutional creation of this important head of jurisdiction would be meaningless.
The Hutto Court, however, cited one decision that was relevant: namely, Fairmont Creamery Co. v. Minnesota, 275 U.S. 70 (1927). In this case, a criminal conviction was reversed, with costs against the state. See Fairmont, 275 U.S. at 71–72. Minnesota contended that costs could not be imposed upon a state unless consented to by its legislature. But the Court declared that it had been taxing costs against states routinely using various court rules and statutes as authority. Id. at 74–77. Further, the Court said that “[t]hough a state is sovereign in many respects, the state when a party to litigation in this court loses some of its character as such.” Id. at 74. The states seem never to have lost this “character” except as regards imposition of costs.
223 Board of Trs. of Univ. of Ala. v. Garrett, 121 S. Ct. 955 (Feb. 21, 2001); United States v. Morrison, 529 U.S. 598 (2000); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999).
224 521 U.S. 507, 520 (1997).
225 Id. at 518 (quoting Fitzpatrick, 427 U.S. at 455).
226 Id. at 520.
227 Id. at 518.
228 See id. (listing cases where congressional voting rights provisions were upheld under Congress’ power to enforce the Fourteenth and Fifteenth Amendments).
229 See Katzenbach, 384 U.S. at 641.
230 528 U.S. 62 (2000).
231 29 U.S.C. § 623(a) (1) (1994).
232 EEOC v. Wyoming, 460 U.S. 226, 243–44 (1983) (concluding that the extension of the ADEA to cover state and local government employers was a valid exercise of Congress’ powers under the Commerce Clause).
233 Kimel, 528 U.S. at 66–67.
234 Id. at 83–84.
235 Id. at 86.
236 Id. at 82–83, 86.
237 For a statutory entitlement that was deemed a cause of action, see Logan v. Zimerman Brush Co., 455 U.S. 422, 431–32 (1982) (holding that employee’s right to use the State’s Fair Employment Practices Act’s adjudicatory procedures was property protected by the Due Process Clause). Cf. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 312 (1950) (invalidating state procedural law that impaired a non-statutory cause of action). For a collection of cases that have held diverse interests to constitute property, see Logan, 455 U.S. at 430–31.
238 121 S. Ct. at 955.
239 In Florida Prepaid, the Section 5 statute abrogating state sovereign immunity in patent cases was also invalidated as excessive under the proportionality test. 527 U.S. at 645–47. The opinion is tortuous, but the Court seems to have had two reasons for this holding. One was that most cases of state patent infringement are not intentional, and as such do not rise to the level of unconstitutionality. Id. at 645. To subject the state to liability for all cases of patent infringement was therefore deemed to be disproportionate. Id. at 645–46. But the plaintiff had relied on the Due Process Clause. Id. at 641–42. And the Court had said that patents were property rights protected by the Clause. Further, the Court stated that “we know of no reason why Congress might not legislate against their deprivation . . . under § 5 of the Fourteenth Amendment.” Id. at 642. If all patent violations are redressable by virtue of the Due Process Clause, there is seemingly no basis for invoking the proportionality test.
But the Court did invoke it, on an additional ground that was more persuasive. The legislative record showed that in virtually all instances the states did afford remedies for their own patent infringements, and that the remedies were almost invariably adequate. Florida Prepaid, 527 U.S. at 640–41. The Court determined that congressional concern was not so much with the adequacy of these remedies but their nonuniformity. Id. at 644. But this problem, the Court ruled, could be addressed by Congress only under its Article I power, which did not extend to abrogation of state sovereign immunity. Id. at 645, 647–648. Construing the statute as having no purpose other than to ensure adequate remedies, the Court concluded that in the circumstances resort to Section 5 to work such abrogation was excessive under the proportionality principle. Id. at 645–47.
In College Savings, the Court did not deal with Boerne’s proportionality test, but took, it is submitted, a confused view of the scope of the Due Process Clause. See 527 U.S. at 675. The case involved a Section 5 statute authorizing suit against a state for violation of Section 43(a) of the Lanham Act, which outlaws false advertisements by a maker concerning its own products. The Court said that a competitor could not assert a property interest that was “impinged upon” by such advertising. Id. While this was true before adoption of the Act, it was not true afterward, for the Act gives competitors a cause of action for damages arising out of a violation. See 15 U.S.C. § 1122(c) (1994). Further, the Court narrowed the conception of property, and thereby narrowed the scope of substantive due process. Thus, the Court said that the claim under the Lanham Act was not property because a “hallmark of a protected property interest is the right to exclude others.” College Savings, 527 U.S. at 673. For this proposition the Court relied on a statement in Kaiser Aetna v. United States to the effect that “one of the most essential” attributes of property is the right to exclude others. Id. (citing Kaiser, 444 U.S. 164, 176 (1979)). This language in Kaiser was taken out of context. In Kaiser, the Court was insisting that a right of exclusion could not be destroyed by the government without compensation. 444 U.S. at 180. If the right to exclude is an indispensable attribute of property rights generally, then not only choses in action, but also contractual interests generally do not constitute property. Yet the Court had previously made clear that a chose in action is “a protected property interest in its own right.” Richards v. Jefferson County, 517 U.S. 793, 804 (1996). And it had previously declared that “contract rights are a form of property and as such may be taken for a public purpose provided that just compensation is paid.” United States Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 19 n.16 (1977).
Professor Woolhandler read College Savings and Florida Prepaid as precluding action under Section 5 to compel states to compensate for interference with “new property,” by which she means a “statutorily created cause of action or expectation of compliance with the law by the state.” Ann Woolhandler, Old Property, New Property, 75 Notre Dame L. Rev. 919, 935 (2000). But in College Savings the Court said that a chose in action is not property at all because it carries no right of “exclusion.” Whether this announced legal principle will stand may be doubted. And it may be questioned whether the defeat of an expectation is actionable unless the expectation constitutes a property interest.
240 15 U.S.C. § 1122, 17 U.S.C. §§ 501, 511 (1994).
241 157 F.3d 282, 284–85 (5th Cir. 1998).
242 Id. at 287.
243 Id. at 297 n.53 (Wisdom, J., dissenting).
244 See id. at 289–90.
245 Id. at 290; see supra Part I.A.2.b (discussing Seminole Tribe).
246 Chavez, 157 F.3d at 290.
247 Illustrating a possible application is United States v. Morrison. 529 U.S. at 589. This case involved a Section 5 statute, Violence Against Women Act, based on congressional findings that battered women suing for damages had suffered “gender-based disparate treatment by state authorities,” id. at 624, through complicity in the use of “erroneous stereotypes and assumptions” permeating state proceedings in such cases. Id. at 620. The remedy that Congress had provided was creation of a federal cause of action against the persons doing the battering, with concurrent jurisdiction in the federal and state courts. See id. at 605–08. As a practical matter, it is difficult to see how this would have improved the situation, but Congress evidently thought it would, and the Court did not dispute Congress in this regard. The Court invalidated the statute for two reasons. First, the Court concluded that the statute was beyond the power of Congress under the Commerce Clause. Id. at 617–18. Second, in regard to congressional power under Section 5 of the Fourteenth Amendment, the Court concluded that the statute was incompatible with the Boerne proportionality rule for the reason that the statute was “not aimed at proscribing discrimination by officials which the Fourteenth Amendment might not itself proscribe . . . .” Id. at 626. For this point, the Court relied on the Civil Rights Cases, where the opinion stated that proper federal legislation to enforce constitutional rights against delinquent states is “‘corrective in its character, adapted to counteract and redress the operation of . . . prohibited [s]tate laws or proceedings or proceedings of [s]tate officers.’” Id. at 635 (quoting Civil Rights Cases, 109 U.S. at 18). But this language was a general description of Section 5 legislation, and did not purport to be a specification of the remedies that Congress could properly prescribe in such legislation. The statute involved in the Civil Rights Cases did no more than outlaw discriminatory conduct by private persons, and prescribe civil and criminal penalties for violators. The statute was not invalidated because of the nature of the remedies it provided; it was invalidated because it made no reference to state violations of the Fourteenth Amendment and was not “predicated on any such view.” 109 U.S. at 14. Nothing was said of lack of proportionality. The statute simply did not have a constitutional purpose, inasmuch as it was not addressed to state action.
In Morrison, where there was a claim of state official involvement in the discriminatory practices complained of, the Section 5 statute had provided a federal forum as a refuge from such practices. As just noted, the Court held the statute to be fatally defective because this remedy did not in any way act upon state officers. See Morrison, 529 U.S. at 618–26. In effect, this was a holding that the Section 5 remedy did not go far enough. The writer can find no rational basis for a requirement that, to pass constitutional muster, a Section 5 statute must substantially discombobulate a state or its officers. A clear precedent for upholding the statute in Morrison was Strauder v. West Virginia, where the Court sustained a Section 5 statute that did no more than authorize removal from a state court to a federal court when it was claimed that certain civil rights were unenforceable in the state court. See 100 U.S. 303, 312 (1879). In Morrison, however, it is not clear that the plaintiff’s grievance related to unconstitutional conduct.
248 See supra notes 205–221 and accompanying text.
249 Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citations omitted) (citing United States v. Nordic Village, Inc., 503 U.S. 30, 33–34, 37 (1992); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990)).
250 Cf. Hart & Wechsler, supra note 71, at 1041 (questioning whether waivers of immunity in federal statutes should “be construed, if not liberally, at least sensibly—with a sympathetic assumption of congressional intent to introduce a regime of law infused with a spirit of equity?”).
251 Dellmuth v. Muth, 491 U.S. 223, 227 (1989) (internal citations omitted); see also Note, Clear Statement Rules, Federalism, and Congressional Regulation of States, 107 Harv. L. Rev. 1959, 1963, 1969–71 (1994)[hereinafter Clear Statement].
252 Edelman v. Jordan, 415 U.S. 651, 673 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)). Similarly, the Court has required that federal statutes overriding state sovereign immunity manifest that purpose by a “clear statement.” See Note, Clear Statement, supra note 251, at 1962–63.
253 415 U.S. at 678.
254 See id. at 673–74. In partial response to this problem, in 1986, Congress provided by statute that “[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of . . . any . . . Federal statute prohibiting discrimination by recipients of Federal financial assistance.” 42 U.S.C. § 2000d–7(a) (1) (1994). The Supreme Court, in dictum, and speaking evidently of acceptance of a conditional federal grant, has called this “an unambiguous waiver of the . . . immunity.” Lane, 518 U.S. at 200. The lower federal courts have imposed liability on states accordingly. E.g., Sandoval v. Hegan, 197 F.3d 484 (11th Cir. 1999), cert. granted sub nom. Alexander v. Sandoval, 530 U.S. 1305 (2000), and rev’d on other grounds No. 99–1908, 2001 WL 408983 (U.S. Apr. 24, 2001).
The authority of Congress to spend for the general welfare is not confined to such objects as are within the purview of congressional authority under the specifics of Article I, Section 8. See United States v. Butler, 297 U.S. 1, 65–66 (1936); see also Albert J. Rosenthal, Conditional Federal Spending and the Constitution, 39 Stan. L. Rev. 1103, 1111–13 (1987) (demonstrating that it is exceedingly difficult to find actual instances of spending to achieve objects beyond the reach of Congress under its specific powers). One need not accept the result in New York v. United States, to acknowledge the justice of the Court’s observation that without limits “the spending power could render academic the Constitution’s other grants and limits of federal authority.” 505 U.S. 144, 167 (1992); see also Butler, 297 U.S. at 66–67 (discussing the need for limits). So far as is here pertinent, conditions imposed on state instrumentalities must be “reasonably related to the federal interest” in the grant. Massachusetts v. United States, 435 U.S. 444, 461 (1978). The Supreme Court has also recognized that although a state can avoid onerous conditions by declining the federal grant, the circumstances may be such as to place undue pressure on the state in making that choice. See South Dakota v. Dole, 483 U.S. 203, 211 (1987). So far as the writer is aware, the Supreme Court has never found the conditions attached to a grant excessive.
255 42 U.S.C § 2000d–7(a) (1994).
256 Lane, 518 U.S. at 200.
257 E.g., Sandoval, 197 F.3d at 500.
258 See supra note 254.
259 505 U.S. 144, 167 (1992). Butler also spoke of the need for limits. 297 U.S. at 66–67.
260 Massachusetts v. United States, 435 U.S. at 461.
261 483 U.S. 203, at 211 (1987). So far as the writer is aware, the Supreme Court has never found the conditions attached to a grant excessive.
262 Jacobs, supra note 111, at 108–09. Fletcher has observed that this was the common understanding in the 1790s. Fletcher, Historical Interpretation, supra note 1, at 1100–01.
263 E.g., Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280–81 (1977); Peter H. Schuck, Suing Government 206–07 (1983).
264 45 U.S. (4 How.) 286 (1846). For earlier recognition of the immunity, see United States v. Clarke, 33 U.S. (8 Pet.) 436, 444 (1934).
The word “all” appears in Article III’s provision for jurisdiction in certain types of cases (for example, “all cases of Admiralty and Maritime jurisdiction”), but does not appear in the clause, “controversies to which the United States shall be a party.” On this basis, argument was made in Glidden v. Zdanok, 370 U.S. 530 (1962), that the United States can be a party only as plaintiff, and that jurisdiction is lacking in any case in a federal court where it is named as a defendant, even if it consents to suit. The Court rejected the argument, declaring that what protects the United States from suit is the general principle of sovereign immunity and that accordingly it is suable with its consent.
265 A recent holding on the point is Dept. of the Army v. Blue Fox, Inc., 525 U.S. 555 (1999).
266 See discussion supra Parts I.A.2–3, I.F.
267 209 U.S. 123 (1908); Pennoyer v. McConnaughy, 140 U.S. 1, 9–18 (1891); In re Ayers, 123 U.S. 443, 500–02, 507 (1887); Poindexter v. Greenhow, 114 U.S. 270, 288–91 (1885); see also Young, 209 U.S. at 198–99 (Harlan, J., dissenting); Jaffe, supra note 5, at 9–29 (discussing in detail suits against officers in England and United States).
268 Hart & Wechsler, supra note 71, at 1065; Jacobs, supra note 111, at 130–42.
269 See Young, 209 U.S. at 148, 159–61, 168.
270 Hart & Wechsler, supra note 71, at 1065.
271 See Young, 209 U.S. at 127–28. A similar point is made in Jaffe, supra note 5, at 28.
272 Young, 209 U.S. at 159.
273 Id. at 159–60. If the governing law is valid, suit against the officer who acted without authority (as when the officer misread the statute) presents a different problem. See discussion infra Part II.B; see also infra text accompanying note 436 (concerning suits founded on an officer’s misreading of a contract).
274 Young, 209 U.S. at 160.
275 See Milliken v. Bradley, 433 U.S. 267, 289 (1977); Griffin v. County Sch. Bd., 377 U.S. 218, 228 (1964).
276 E.g., Reynolds v. Sims, 377 U.S. 533, 537 & n.2 (1964). Sometimes officers are seemingly sued in their official capacities. Cf. Wesberry v. Sanders, 376 U.S. 1, 3 (1964) (bringing action asking that a Georgia voting statute be declared invalid and that the Governor and Secretary of State of Georgia be enjoined from conducting elections under it). This practice goes unchallenged. In any event, suit never seems to be brought against the states themselves or their executive departments.
277 See Edelman, 415 U.S. at 663–72.
278 In Seminole Tribe, the Court invalidated a federal statute, adopted under the Indian Commerce Clause, that authorized suit against a state. 517 U.S. at 47. But in that case, the tribe had sued not only the state but also its governor, and one of the issues was whether the suit against the latter could be maintained under the Ex parte Young doctrine. Id. at 73. With regard to that aspect of the case, it is necessary to consider provisions of the statute that were not mentioned in the earlier discussion. Under the statute, a state permitting gaming activity by others was obliged to permit gaming activity to be conducted by Indian tribes upon Indian lands, in accordance with the conditions established in a compact entered into by the tribe and the state. Id. at 49 (citing 25 U.S.C. § 2710(d) (3) (A) (1994)). The statute provided that, upon application by a tribe, “the State shall negotiate with the Indian tribe in good faith to enter into such a compact.” Id. The statute further provided that if a state failed in this obligation, the federal district court in which an enforcement action was brought should try to get the parties to agree. Id. at 49–50 (citing 25 U.S.C. § 2710(d) (7) (B) (ii)–(vii)). That failing, the parties were to negotiate further with the aid of a court-appointed mediator, in accordance with a detailed procedure set out in the statute. Seminole Tribe, 517 U.S. at 50. If that also failed, the Secretary of the Interior was to establish the conditions under which gaming was to be conducted. Id.
A divided Court decided that the Ex parte Young action against the governor could not be maintained, but neither side suggested that the Ex parte Young remedy was unavailable to secure a benefit conferred by a federal statute. See id. at 73–76 & n.17; id. at 169–82 (Souter, J., dissenting). The Court held the remedy to be unavailable in this case because of its view that the special statutory remedy was meant by Congress to be the exclusive one. See id. at 73–76 & n.17. Preliminarily, it may be observed that, when a constitutional violation is charged, the power of Congress to narrow the scope of the judicial remedy is limited, because the remedy must afford adequate implementation of the particular constitutional provision involved, and as to that the Supreme Court has the last word. See generally Henry P. Monaghan, Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1 (1975). In the case of a federal statute, Congress may limit judicial remedies as it pleases, barring of course limitations on constitutional rights such as procedural fairness and equal protection of the law. The Seminole Tribe dissenters did not dispute this notion. They insisted, however, that the special statutory procedure could be followed as readily in an action against the governor as in an action against the state. 517 U.S. at 180–81 (Souter, J., dissenting). Further, they argued that it was implausible to attribute to Congress an intent that the Ex parte Young route should be unavailable, since Congress was so intent on effectuating the statutory scheme as to have authorized an action against the state itself. Id. at 180.
These were weighty arguments, but not, in the view of this writer, dispositive. A question not considered by the majority or the dissent was whether Seminole Tribe was a case where the suit against the officer should be deemed one essentially against the state itself. If, in a suit against an officer, a court may not enter a decree that in effect requires specific performance of a repudiated state contract, see infra notes 368–377 and accompanying text, one may wonder whether a decree against the officer may in effect require the state to enter into a contract in the first place, or to bargain in good faith with a view to entering into a contract. Vicki C. Jackson, Seminole Tribe, the Eleventh Amendment, and the Potential Evisceration of Ex parte Young, 72 N.Y.U. L. Rev. 495, 510–41 (1997), sees in the decision grave danger to the Young doctrine generally, as her title suggests. Seminole Tribe does not warrant such apprehension. In the first place, Jackson takes little if any account of Congress’ plenary power, subject only to such constitutional limitations as have been noted, to limit the remedies for violation of a federal statute. Second, Jackson’s fears concerning the future of the doctrine in relation to constitutional violations stem in part from her blurring of the distinction between constitutional and statutory violations, and in part from the Seminole Tribe’s reliance on Schweiker v. Chilicky. See Seminole Tribe, 517 U.S. at 74 (citing Schweiker, 487 U.S. 412, 423 (1988)); see also Jackson, supra, 527–30 (discussing Schweiker).
In Schweiker, the claimant had been improperly denied social security benefits. 487 U.S. at 414. The statute provided for full restoration of benefits through administrative and judicial proceedings. But the claimant, contending that the statutory violation also constituted a violation of due process, instituted an Ex parte Young action to recover damages for “emotional distress [and] other hardships” occasioned by the denial of benefits but not available under the remedies provided by the statute. Id. at 418–19, 425. The Court, as it remarked in its opinion, was being asked to create a remedy, originally created in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, for the alleged due process violation. Id. at 421–23; Bivens, 403 U.S. 388 (1971); see also infra notes 280–281 and accompanying text (discussing Bivens). Thus, the issue in Schweiker was not whether a statutory remedy provided adequate implementation of a constitutional right, but concerned rather the scope of the claimed constitutional right, which is necessarily a preliminary question. In deciding against creation of a Bivens remedy, the Court declared that Congress had provided “meaningful safeguards or remedies” in the Social Security Act, Schweiker, 487 U.S. at 425; and, further, that “‘Congress is in a better position to decide whether or not the public interest would be served’” by providing the additional damages sought by the claimant. Id. at 427. The holding might have been the same without reference to the superior position of Congress to determine what was in the public interest. Whether or not the deference to Congress was appropriate, the Court was not allowing Congress to limit implementation of a constitutional right that was clearly defined. Thus, the favorable reference to Schweiker in Seminole Tribe should not be taken to threaten “evisceration” of Ex parte Young in its application to constitutional violations. See Jackson, supra, at 495. It is submitted that Seminole Tribe does not undermine Ex parte Young. Other writers of this view, include Daniel Meltzer and David Currie. See David P. Currie, Ex parte Young After Seminole Tribe, 72 N.Y.U. L. Rev. 547, 550 (1997); Meltzer, supra note 1, at 41–46.
279 See discussion infra Part III.A.3.
280 403 U.S. at 388.
281 This practice is describe in Hill, Constitutional Remedies, supra note 65, at 1122–31.
282 Id.
283 See Bivens, 403 U.S. at 390; id. at 398 (Harlan, J., concurring).
284 Id. at 396–97.
285 337 U.S. 682 (1949)
286 See infra notes 406–436 and accompanying text (discussing Larson in more detail).
287 E.g., Houston v. Ormes, 252 U.S. 469, 473 (1920).
288 E.g., Ickes v. Fox, 300 U.S. 82, 96–97 (1934); Miguel v. McCarl, 291 U.S. 442, 469 (1934). In the latter case the Court said: “[t]he mandatory injunction here prayed for is in effect equivalent to a writ of mandamus, and governed by like considerations.” Miguel, 291 U.S. at 452.
289 E.g., Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110–11 (1902).
290 The suit against the officer can plausibly be seen as one against the government if the officer’s duty under a valid statute is discretionary. Professor Woolhandler, in a valuable study, remarked on the similarity in some cases of discretionary immunity and sovereign immunity. Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 Case W. Res. L. Rev. 396, 424–25 n.148 (1987). The Taney Court took a particularly broad view of discretionary duties—indeed so broad that the Court refused to hear claims of abuse of what today would be deemed clear abuse of discretion. Id. at 422–30. This may help to explain the paucity of Supreme Court decisions on sovereign immunity during the Taney period. In any event, it is unthinkable that the defense of discretionary duty should prevail against a claim that the governing statute is unconstitutional. The unthinkable nevertheless happened in Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866) (rejecting an attack on a Reconstruction statute; the result was perhaps explainable in part by the fact that the defendant was the President). Immediately thereafter the Court invoked the political action doctrine to justify its refusal to entertain such an attack. Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867).
291 Phila. Co. v. Stimson, 223 U.S. 605, 620 (1912). To like effect, see, for example, Payne v. Central Pac. Ry., 255 U.S. 228, 238 (1921). Cf. Rolston v. Crittenden, 120 U.S. 390, 411 (1887) (“There the effort was to compel a state officer to do what a statute prohibited him from doing. Here the suit is to get a state officer to do what a statute requires of him. The litigation is with the officer, not the state.”).
292 In In re Ayers, the Court distinguished between: (1) “suits against individual defendants, who, under color of the authority of unconstitutional legislation by the state are guilty of personal trespasses and wrongs;” and (2) “suits against officers in their official capacity either to arrest or direct their official action by injunction or mandamus where such suits are authorized by law . . . .” 123 U.S. 443, 506 (1887) (emphasis supplied).
293 E.g., Ormes, 252 U.S. at 473; United States ex rel. Parish v. MacVeagh, 214 U.S. 124, 138 (1909); Roberts v. United States ex rel. Valentine, 176 U.S. 221, 230–31 (1900). This has also been done by mandatory injunction. See Miguel, 291 U.S. at 452, 456.
294 Ormes, 252 U.S. at 472–74; Minnesota v. Hitchcock, 185 U.S. 373, 386 (1902).
295 The discussion in the text is not pertinent to all cases of mandamus. Thus, if a statute is held to be unconstitutional and a writ of mandamus is issued for corrective action on the theory that only a ministerial act is involved, sovereign immunity should not be overridden. It is the existence of a duty created by a valid statute that makes an enforcement action one in aid of the enacting jurisdiction rather than one against it.
296 In Kendall v. United States ex rel. Stokes, the claimants had a contractual claim against the United States Post Office, which had been disallowed in part; the claim was based on contracts made between the claimants and the postmaster general of the United States. 37 U.S. (12 Pet.) 524, 608 (1838). An act of Congress was then adopted, which provided that the controversy over the claim should be determined by the solicitor of the treasury, and that the amount determined by that officer to be due should be entered in the books of the Post Office department as a credit in the claimant’s account. Id. at 608–09. The solicitor made the requisite determination, but the postmaster general refused to credit the complainant with the amount found. Id. at 609. The Supreme Court sustained issuance of mandamus ordering entry of the credit. Id. at 618, 626. The claim in question, said the Court, was “of course, upon the United States, through the postmaster general.” Id. at 611. As such, it could not be “enforced against the United States, without their consent obtained through an act of congress.” Kendall, 37 U.S. at 611. But Congress had “consented” that the solicitor should determine the amount due. Id. The Court added that no money could be drawn from the treasury without an appropriation by Congress, but left no doubt that refusal to make such payment after an appropriation could also have been countered by mandamus. Id. at 614–15.
A somewhat comparable view is apparent in In re Ayers. In this case, a state statute authorizing the issuance of bonds had been followed by another statute substantially impairing the value of those bonds. 123 U.S. at 446–47. The Court said: “Although the state may, at the inception of the contract, have consented as one of its conditions to subject itself to suit, it may subsequently withdraw that consent, and resume its original immunity, without any violation of the obligation of its contract in the constitutional sense.” Id. at 505. It is submitted that mandamus cases generally lend themselves to the same rationalization. See David P. Currie, Sovereign Immunity and Suits Against Government Officers, 1984 Sup. Ct. Rev. 149, 159 n.58.
297 Work v. United States ex rel. McAlester-Edwards Coal Co., 262 U.S. 200, 208–09 (1923); Lane v. Hoglund, 244 U.S. 174, 182 (1917); Ballinger v. United States ex rel. Frost, 216 U.S. 240, 250–51 (1910); United States v. Schurz, 102 U.S. 378, 405 (1880).
298 Antonin Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions from the Public-Lands Cases, 68 Mich. L. Rev. 867, 907–09 (1970). He mentioned seven such cases. Id. at 894–907, 910 & n.209. They are discussed infra note 299.
299 In Naganab v. Hitchcock, the statute that was the source of the asserted duty had been superseded in pertinent part by a later statute. 202 U.S. 473, 474 (1906). In the circumstances, the suit was held to be one against the United States. Id. at 476. The situation was similar in Morrison v. Work, as to the first of two sets of claims there involved. 266 U.S. 481, 485–86 (1925). The second set was dismissed because, according to the Court, the lack of a focus on the asserted entitlement made the claimed right comparable to “the general right of every citizen to have the Government administered according to law . . . .” Id. at 488. In Oregon v. Hitchcock, the Court observed that official action by the Land Department regarding the land in issue was incomplete and “in process of administration.” 202 U.S. 60, 70 (1906). The implication was that a suit would lie when the official action regarding the land was complete. See id. In Kansas v. United States, the suit was against the United States itself, which had not consented to be sued. 204 U.S. 331, 341 (1907). The opinion noted that “others” had also been named as defendants. Id. at 337. These “others” were not identified; and whether, if officers, the suit might have proceeded against them, was not considered.
In Louisiana v. Garfield, the Court rejected the state’s claim of entitlement to certain federal lands, except for an unresolved question on whether the state might still prevail on the basis of a statute of limitations that operated against the United States. 211 U.S. 70, 77 (1908). The applicability of this statute turned on certain questions of law and fact, as to which the United States was said to be a “necessary party,” which left the Court with “no jurisdiction of this suit.” Id. at 78. This holding was unexplained, but it is arguable that the applicability of the statute of limitations was unrelated to or remote from the question of the statutory duties of the defendant Garfield in regard to the land. The case of New Mexico v. Lane, rested on a misunderstanding of Garfield, and is in other respects an egregiously wrong decision. 243 U.S. 52 (1917). Here too the state’s claim to public lands raised questions of law and fact and the Court read Garfield as requiring the presence of the United States. Lane, 243 U.S. at 58. But in Garfield these questions arose on a collateral issue. The Court there decided the principal issue on the merits with no mention of sovereign immunity. Disputed questions of law or fact, or both, are almost invariably present in suits to hold officers to performance of their statutory duties—it is only because of disagreement with the officers on such points that suits are typically brought.
The case of Hawaii v. Gordon was also an egregiously wrong decision. 373 U.S. 57 (1963). A statute provided that the President should transfer to Hawaii certain federal lands in that state determined by him to be no longer needed by the United States. Id. at 57–58. The President delegated this function to the Director of the Bureau of the Budget. The latter construed the statute as not embracing certain lands and Hawaii sued him for relief based on its contention that the statute did embrace these lands. Id. at 58. In a per curiam decision, the suit was held to be one against the United States, for the following reasons: (1) “[R]elief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.” Id. at 58. (2) “[T]he order requested would require the Director’s official affirmative action.” Id. (3) The order would “affect public administration of government agencies . . . .” Gordon, 373 U.S. at 58. (4) The order would “cause as well the disposition of property admittedly belonging to the United States.” Id. The first and third points would virtually abolish the Ex parte Young doctrine. Besides that doctrine was not pertinent. Hawaii was seeking to hold a federal officer to the duties set forth in a statute not attacked as invalid. The second and fourth points overlook earlier decisions in which the Court ordered transfer of title to government lands in such cases. See supra note 297.
300 See Santa Fe Pac. R.R. v. Payne, 259 U.S. 197, 199 (1922) (restraining the Secretary of the Interior from interfering with claimant’s acquisition of federal lands under a contract with the United States); Rolston, 120 U.S. at 411 (granting relief similar to that in Santa Fe to restrain state officers from violating a state contract).
301 Ickes v. Fox, 300 U.S. 82, 95–97 (1934).
302 See Santa Fe, 259 U.S. at 198–99; Rolston, 120 U.S. at 402–03.
303 495 U.S. 33, 56 n.20 (1990).
304 107 U.S. 711 (1882).
305 See infra note 306.
306 Before considering the pertinent cases, it should be remarked that when a statute, whether or not it imposes a duty upon an officer, is superseded by a later statute, the question arises whether invalidation of the later statute leaves the earlier one in force. This should depend on the law of the enacting jurisdiction. Unfortunately, this question was not considered in the cases now to be discussed. In Board of Liquidation v. McComb, the Court invalidated a statute impairing a statutory obligation and enforced the obligation. The state’s officers were said to be under a “plain official duty” and subject to mandamus to compel discharge of the duty, or injunction to prevent conduct incompatible with the duty; in this instance an injunction was granted. Id. at 541. Board of Liquidation was discussed approvingly in Jumel, where the state had impaired its contract with respect to a bond issue by lowering the interest rate and modifying an accompanying obligation to levy certain taxes to service the bonds. Jumel, 107 U.S. at 725–26. Mandamus was denied for an insufficient showing of a ministerial act that would benefit the claimant. 107 U.S. at 727. The remedy sought, declared the opinion, “would require the Court to . . . supervise the conduct of all persons charged with any official duty in respect to the levy, collection, and disbursement of the tax in question until the bonds, principal and interest, were paid in full.” Id. In In re Ayers, the Court approved the mandamus remedy generally, endorsing what was said on that subject in Board of Liquidation, but denying relief on the ground that the plaintiffs were seeking specific performance of a contract. In re Ayers, 123 U.S. at 504, 506. In both Jumel and In re Ayers, the Court assumed sub silentio that duties created by the first statute were revived when the second statute was invalidated.
Board of Liquidation has not borne fruit in later years, and Jumel and In re Ayers have been misunderstood. Thus, in Belknap v. Schild, the Court declared that an injunction will not be issued “to compel the state to perform its obligations,” citing, inter alia, Jumel and In re Ayers. Belknap, 161 U.S. 10, 18 (1896). As mentioned in the text, Jenkins cited Jumel to the same effect. Neither Belknap nor Jenkins involved a government contract. In some cases where the Court sustained mandamus to enforce a statutory obligation after invalidating a statute abrogating the obligation, the governmental debtors were not states but political subdivisions, which do not enjoy sovereign immunity under federal law. See discussion supra Part I.I. Among these cases are Wolff v. New Orleans, 103 U.S. 358 (1880); Hoffman v. Quincy, 71 U.S. 535 (1866).
307 E.g., Larson, 337 U.S. at 685–86; United States ex rel. Goldberg v. Daniels, 231 U.S. 218, 221 (1913). These cases are discussed infra Part IV.B.
308 465 U.S. 89 (1984).
309 See discussion infra Part VI.B.
310 See discussion infra Part IV.E.
311 For a discussion of Gordon, 373 U.S. 57 (1963), see supra note 299.
312 Even when a court holds an officer to the performance of a duty under a valid statute, the state may be the real party in interest, as where the case turns on construction of the statute.
313 John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Va. L. Rev. 47, 49–50 (1998).
314 433 U.S. 267 (1977).
315 While the Court spoke of its ruling as directed against the state, in an earlier phase of the same proceeding the Court said that “references to the State must be read as references to the public officials . . . through whom the State is alleged to have acted.” Milliken v. Bradley, 418 U.S. 717, 722 (1974).
316 433 U.S. at 293 (Powell, J., concurring).
317 Id. at 290.
318 Id. at 289.
319 E.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 89 (1989); Edelman v. Jordan, 415 U.S. 651, 668 (1974).
320 See United States v. Lee, 106 U.S. 196 (1882) (involving situation where the property was in use as a military cemetery and fort); see also infra notes 380–387 and accompanying text (discussing Lee).
321 See infra notes 359–379 and accompanying text.
322 Dugan v. Rank, 372 U.S. 609, 620 (1963) (internal quotations and citations omitted). For a similar statement, see Larson, 337 U.S. at 688. See also Gordon, 373 U.S. at 58 (“the order requested would . . . affect the public administration of government agencies”).
323 The suit in Ex parte Young would be one against the government because the effect of the injunction was to restrain a state official and therefore the state from enforcing a state regulatory statute. Concerning the facts in Ex parte Young, see supra Part III.A.
324 E.g., Papasan v. Allain, 478 U.S. 265, 267, 279 (1986); Green v. Mansour, 474 U.S. 64, 68 (1985).
325 415 U.S. 651 (1974).
326 Edelman, 415 U.S. at 653–55.
327 Id. at 655–56.
328 Id. at 665.
329 Id. at 664, 665, 668. The government cannot be sued directly for damages, and, in the absence of statute, this is what has prevented recourse against the government for the torts of its officers. In this and like situations the immunity cannot be avoided by some stratagem that involves suit against the officer but compels access to the general treasury. Thus, mandamus to this end is unavailable unless the government in effect consents to be sued. See supra 287–296.
330 Edelman, 415 U.S. at 668 (emphasis supplied).
331 Id. at 666 n.11. Cf. Green v. Mansour, 474 U.S. 64, 68 (1985) (denial of remedies serving only “compensatory and deterrence interests”). It is not clear that the reference to “deterrence interests” adds anything to the analysis.
332 Again, the constitutional principle that the state may not be sued without its consent would be rendered meaningless if the courts could award remedies against the officer without regard for this basic principle. This is because of the likelihood that the state would provide funds to relieve the officer of liability in cases where the officer is essentially a pawn who stands in for the state.
333 521 U.S. 261 (1997).
334 Id. at 264.
335 Id. at 281 (plurality opinion); see also id. at 289 (O’Connor, J., concurring) (“functional equivalent of an action to quiet its title”).
336 Concerning property claims against an officer, see infra Part IV.B.
337 Idaho, 521 U.S. at 289.
338 Green, 474 U.S. at 68.
339 433 U.S. 267 (1977).
340 Id. at 279.
341 Id. at 290.
342 Id. at 290 n.22.
343 Id. at 290 (internal quotation marks omitted).
344 22 U.S. (9 Wheat.) 738, 870–71 (1824).
345 See discussion infra Part IV.A–B.
346 In Papasan v. Allain, which was an Ex parte Young suit, relief was denied. 478 U.S. 265 (1986). It was for past misconduct; and the Court stated at the outset that “Young has been focused on cases in which a violation of federal law by a state official is ongoing as opposed to cases in which federal law has been violated at one time or over a period of time in the past.” Id. at 277–78. But the denial of relief was on grounds unrelated to the past character of the asserted misconduct (if we exclude one item that was essentially for arrears, which were not recoverable under Edelman). In 1836, the federal government had ceded certain lands to Mississippi for the use of schools within a designated area. Id. at 271–72. Subsequently, the State sold the lands with the permission of Congress, and invested the proceeds in railroads. Id. at 272. The value of this investment was destroyed by the Civil War. Id. The Papasan claimants contended that the lands had been conveyed to the state in trust, and that the state, as trustee, had a continuing duty to execute the terms of the trust. Id. at 274. They sought: (1) reconstitution of the corpus of the trust, either by a transfer of land or its monetary equivalent; (2) the “award of past income not received,” id. at 281 n.13; and (3) the award of future income. See id. at 274–81. The first two demands were understandably rejected. But the third demand was one for prospective relief based on the continuing effect of a past violation (assuming the validity of the claim). Id. at 279. In denying the third demand, the Court relied entirely on its understanding of the arcana of trust law. Id. at 279–81. The details do not warrant discussion in this space. (See the excellent analysis in Carlos Manuel Vazquez, Night and Day: Coeur d’Alene, Breard, and the Unraveling of the Prospective-Retrospective Distinction in Eleventh Amendment Doctrine, 87 Geo. L.J. 1, 38–40 (1998)). It may be ventured, however, that the claimants might have fared better by not introducing trust law but rather by simply alleging that the state had not used the grant for its stated purpose, and that this was a continuing harm for which the claimants were entitled to future payments.
The most recent Supreme Court decision on the subject is Breard v. Greene. 523 U.S. 371 (1998). A citizen of Paraguay was under sentence of death in Virginia for murder. In violation of a multilateral treaty, the prisoner had not been advised of his right to consult a consul of his country. Paraguay instituted a suit to set aside the death sentence, but relief was denied on the ground that it would be “quintessentially retrospective.” Paraguay v. Allen, 134 F.3d 622, 628 (4th Cir. 1998). The court observed that the treaty was not being violated at the time the action was filed. Id. at 629.
On review, the Supreme Court considered not only Paraguay’s claim, but also the prisoner’s petition (in reliance on the treaty violation) for an original writ of habeas corpus and an application for a stay. In the Court’s per curiam opinion, handed down on the afternoon of the day for which the execution was scheduled, the Court rejected the prisoner’s demands: first, on the ground of procedural default, resulting from failure to make timely assertion of his claim; and second, because, even if the claim had been timely raised, no showing that the violation had affected the trial could “even arguably be made.” Breard, 523 U.S. at 377. In this connection, that the Court stated that the prisoner’s attorneys “were likely far better able to explain the United States legal system to him than any consular official would have been.” Id. As to Paraguay, the Court said: “Though Paraguay claims that its suit is [based upon] continuing consequences of past violations of federal rights . . . we do not agree. The failure to notify the Paraguay Consul occurred long ago and has no continuing effect. The causal link present in Milliken is absent in this case.” Id. at 377–78. It has been argued that the above language, considered in light of the decision below in the Fourth Circuit and a similar decision in the Ninth Circuit (United Mexican States v. Woods, 126 F.3d 1220 (9th Cir. 1997), casts a cloud on the traditional practice in habeas corpus cases, and indeed on postconviction review generally. Vazquez, supra, at 51–77. For in virtually all criminal cases, the asserted violations occurred at the trial or earlier.
To say that one under sentence of death is seeking a retroactive remedy when complaining of past violations, and hence barred from relief, is, to put it mildly, disorienting. But the Fourth and Ninth Circuits did not say that. To the contrary, they declared in effect that the violation was an ongoing one as regards the prisoner, though not as regards the foreign government. Thus, in the Fourth Circuit case, though the prisoner was not a party, the state itself conceded that “the violation is ‘ongoing’ or ‘continuing’ in the sense that its ‘consequences’ persist in [the prisoner’s] continuation in custody under death sentence.” Paraguay, 134 F.3d at 627. The violation was not deemed to be ongoing as to Paraguay because the treaty was not being violated at the time the action was filed. Similarly, in the Ninth Circuit case, it was only Mexico that was denied relief (again the prisoner was not a party) on the basis of what the court characterized as past violations. In the case of prisoners, said the court, such violations are “examined post hoc in state postconviction proceedings and federal habeas.” United Mexican States, 126 F.3d at 1223.
As to the language quoted earlier from the Supreme Court’s opinion, what the Court said as to Paraguay is best understood in light of what the Court said as to the prisoner. There was no mention of past violations in the rejection of the prisoner’s claim. Instead, the rejection was based on procedural default and lack of causality. In regard to Paraguay, the Court seemed to say that the past violation had no “continuing effect” because of lack of the “causal link present in Milliken.” Breard, 523 U.S. at 378. And the causal link in the latter case was the continuing effect of past de jure segregation.
347 See supra note 331 and accompanying text.
348 See infra notes 353, 380–387, 420 and accompanying text.
349 Conduct to which one of the modern privileges does not attach is the type of conduct that, prima facie, should continue to be the basis for such liability. In cases subsequent to Edelman the Court has condemned “compensatory” decrees unqualifiedly. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145 (1993); Papasan, 478 U.S. at 278.
350 This was largely true as well of Papasan. See supra note 346 (discussing Papasan). For other views on the prospective-retrospective dichotomy, see Althouse, supra note 1, at 1140–52, and Vazquez, supra note 346, at 1.
351 The category is not stretched unduly if we place in it the desegregation cases. While plaintiffs in such cases are not asking to be left alone, for our purposes they may be seen as asking for a reasonably close equivalent—not to be singled out invidiously for denial of rights enjoyed by others.
352 In Edelman v. Jordan, it can plausibly be argued that, in resisting payment of arrears unlawfully withheld, the state was acting defensively. Even assuming that the welfare beneficiary had a vested interest in arrears, it should be considered that the owner of a government bond also has a vested interest. It should be of no avail that the state through its officers violated federal law; the owner of the bond fails to recover though the state through its officers has violated the Contract Clause. In such cases the invocation of sovereign immunity is defensive. On the other hand, when a person receives something of value from the government, even as bounty, an unlawful seizure of such property constitutes a taking, and in a suit against the officer an invocation of sovereign immunity should be rejected as offensive in effect.
353 114 U.S. 270 (1885).
354 Id. at 273–74.
355 Id. at 288.
356 Id. at 330 (Bradley, J., dissenting).
357 Id. at 298–99.
358 Such a remedy, if adequate, is to this day the only remedy a state need furnish when taxes are under constitutional attack. See infra note 460 and accompanying text.
359 114 U.S. at 300.
360 Id. at 281.
361 Id. at 295.
362 135 U.S. 662 (1890).
363 Id. at 684.
364 Ga. R.R. & Banking Co. v. Redwine, 342 U.S. 299 (1952); Allen v. B. & O. R.R., 114 U.S. 311 (1885); see also Davis v. Gray, 83 U.S. 203 (1872).
365 See South Dakota v. North Carolina, 192 U.S. 286 (1904) (sustaining a recovery). North Carolina had defaulted on certain of its bonds, but South Dakota, which had become the bona fide owner of some of these bonds, was entitled to a full recovery thereon when it invoked the original jurisdiction in its suit against North Carolina. Sovereign immunity cannot be interposed in such a suit.
366 The same point had been made by Henry Clay, arguing for the bank in Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 799 (1824). See also supra text accompanying note 119 for Chief Justice Marshall’s pertinent remarks in Cohens v. Virginia.
367 See, e.g., Land v. Dollar, 330 U.S. 731 (1947); Sloan Shipyards Corp. v. United States Shipping Bd. Emergency Fleet Corp., 258 U.S. 549 (1922); see also discussion infra Part IV.C.
368 117 U.S. 52 (1886).
369 Id. at 67.
370 123 U.S. at 443.
371 Id. at 493–94.
372 Id. at 502.
373 The Court distinguished Poindexter and like cases as in effect involving seizures. Id. at 500–01.
374 Id. at 492.
375 246 U.S. 335 (1918).
376 Id. at 337; cf. Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371 (1945). In this case the claimant, attacking as unconstitutional a federal statute requiring elimination of excess profits on government war contracts, sought to restrain a federal officer from blocking payments to the claimant on other government contracts until it settled its dispute with the government. The Court observed that the allegations “do not make out a threatened trespass against any property in the possession of or belonging to the appellant,” id. at 374, and held that the suit was “an indirect effort to collect a debt allegedly owed by the government in a proceeding to which the government has not consented.” Id. at 375.
377 With regard to attempted use of mandamus to compel performance of state contracts, see supra notes 300–306 and accompanying text.
378 Fletcher, Historical Interpretation, supra note 1, at 1123 (“virtually impossible to explain”); Gibbons, supra note 1, at 1989–91 (same; also asserting that Court’s fear of nonenforceability of judgments against states after the Civil War as a reason for such disparate treatment); Orth, supra note 1, at 447–50 (asserting Court’s fear of nonenforceability).
379 It has been argued above that in some circumstances the contract might be enforceable. See supra note 364–366.
380 106 U.S. 196 (1882).
381 Id. at 198, 223.
382 Id. at 200–04. The estate of General Robert E. Lee’s wife in Arlington, Virginia, had passed into the possession of the federal government after non-payment of a tax levied during the Civil War. Under a governing regulation, the tax had to be paid by the owner in person or a party in interest. The government refused a proffer of the payment on behalf of the owner, and subsequently acquired the property at a tax sale. The Court held that the United States did not acquire a valid title. Id.
383 Id. at 204.
384 Lee, 106 U.S. at 219–20.
385 Id. at 221.
386 Id. at 222.
387 In theory, the United States could have tried to relitigate its title, but that course probably would have been futile.
388 83 U.S. 203, 233 (1872).
389 Id. at 230.
390 Louisiana v. Jumel, 107 U.S. 711, 725 (1882).
391 140 U.S. 1 (1891).
392 Id. at 25.
393 Tindal v. Wesley, 167 U.S. 204 (1897).
394 Land v. Dollar, 330 U.S. 731 (1947).
395 Goltra v. Weeks, 271 U.S. 536 (1926).
396 Sloan Shipyards Corp. v. United States Shipping Bd. Emergency Fleet Corp., 258 U.S. 549 (1922).
397 Osborn, 22 U.S. at 738.
398 Poindexter, 114 U.S. at 270; see also supra notes 353–366 and accompanying text (discussing Poindexter).
399 369 U.S. 643 (1962). An earlier case comparable to Malone on its facts, but with a different outcome, is Stanley v Schwalby, 147 U.S. 508 (1893), where the action was allowed to proceed against government officers.
400 Malone, 369 U.S. at 644 & n.2.
401 Id.
402 Id. at 647–48.
403 Id. at 648. The Court was applying a formula announced in Larson, 337 U.S. at 682 (discussed infra Part IV.C).
404 Malone, 369 U.S. at 648.
405 In light of a case decided one year after Malone, namely Armstrong v. United States, 364 U.S. 40 (1960), there is room for argument that the government too had “wronged” the claimant. Armstrong held that when the United States acquires property subject to an existing lien, the bare act of acquisition constitutes a taking of the lien. Since liens on government property are unenforceable by reason of sovereign immunity, the Court declared that, in acquiring title, “the Government for its own advantage destroyed the value of the liens.” Id. at 48. By the same token, it would seem that if the government, in its acquisition of title to the property involved in Malone, was subject to notice of the adverse claim of another, it effected a taking in destroying the value of the adverse claim. That does not end the matter because, traditionally, there was no remedy against the government, even for a taking, unless the government consented to be sued. See infra note 473 and accompanying text. But the absence of such a remedy against the government left open a common law possessory action against the officer in possession of the property, which was precisely the situation in Lee. In addition, possessory relief was all that the plaintiff sought in Malone. Today, consideration would also have to be given to the decision in First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987) (discussed infra Part V.C). Further, under a statute now in effect the United States consents to be sued in such a case. See Hart & Wechsler, supra note 71, at 1036–37.
406 337 U.S. 682 (1949).
407 Id. at 705, 723–24 (Frankfurter, J., dissenting).
408 E.g., Roger C. Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich. L. Rev. 387, 404 (1970); Currie, supra note 296, at 156–59.
409 See Larson, 337 U.S. at 684.
410 Id. at 685.
411 Id. at 692.
412 Id. at 684.
413 Id. at 703.
414 Larson, 337 U.S. at 693.
415 Id. at 693–94.
416 The Court rejected the argument that officers cannot be authorized to commit torts. Id. at 694–95.
417 Id. at 703.
418 Id. at 718.
419 Larson, 337 U.S. at 698. The Court said that, as distinct from “damages” “specific relief” encompasses “the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer’s actions.” Id. at 688.
420 The cases on which Justice Frankfurter relied are set forth in two paragraphs of the opinion. See id. at 732 (Frankfurter, J., dissenting). The second of these paragraphs listed cases in which the opinions were said to have “made reference to a situation involving an unconstitutional taking.” Id. The question, therefore, is whether the six cases listed in the first paragraph are precedents for liability without a taking. These cases follow: Land v. Dollar, 330 U.S. 731, 736 (1947) (describing plaintiff’s claim as one “to recover possession of specific property wrongfully withheld” and directing district court to proceed to a decision on the merits); Ickes v. Fox, 300 U.S. 82, 96 (1937) (involving a suit “to enjoin [an officer] from enforcing an order, the wrongful effect of which will be to deprive respondents of vested property rights” and denying relief on the merits); Goltra v. Weeks, 271 U.S. 536 (1926) (discussed infra notes 422–435 and accompanying text); Sloan Shipyards Corp. v. United States Shipping Bd. Emergency Fleet Corp., 258 U.S. 549 (1922) (in all material respects, similar to Goltra); Scranton v. Wheeler, 179 U.S. 141, 152–53, 165 (1900) (declaring that the suit against the officer would lie if there had been a taking and denying relief on the ground that there had not been a taking); Stanley, 147 U.S. at 519–20 (rejecting plaintiff’s assertion of title; had the plaintiff prevailed on this point, the claim against the officers in possession would have been essentially one for a taking, as in United States v. Lee, 106 U.S. 196 (1882)). The fact that the Court did not use the word “taking” in these six cases is immaterial. Any purposeful interference with a property right constitutes a taking. See infra notes 482–483 and accompanying text.
421 231 U.S. 218 (1913).
422 271 U.S. 536 (1926).
423 Daniels, 231 U.S. at 221.
424 Id.
425 The plaintiff did not contend that the Administrator was under a statutory duty to deliver the vessel. Id. at 221–22.
426 Goltra, 271 U.S. at 539.
427 Id. at 541.
428 Id. at 544.
429 Larson, 337 U.S. at 720 (Frankfurter, J., dissenting).
430 Id. at 701.
431 Id. at 701 n.25 (emphasis added). Actually, the Larson Court misconceived the decision in Goltra. The opinion in that case characterized the seizure as tortious if not supported by the terms of the lease. The Court’s conclusion was that the lease did justify the seizure.
432 Id. at 726.
433 Id. at 724. United States v. Lee, 106 U.S. 196 (1882), is the ejectment case involving what is now Arlington Cemetery. See supra notes 380–387 and accompanying text.
434 337 U.S. at 692.
435 See, e.g., Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 111 (1902). In Sloan Shipyards Corp., it was not clear whether the authority allegedly misconstrued by the federal agent derived from statute or contract; either way, official action not authorized is “unlawful” and redress may be had against the agent. See 258 U.S. at 566–68.
436 The reference is to a contract made by an officer made under general statutory authority, as distinct from a contract embodied in the terms of a statute. In the latter situation, it is arguable that the officer should be ordered to execute the duty laid out in the statute, with consequent enforcement of the contract. See supra notes 300–306 and accompanying text.
437 See discussion supra Part III.A.2.
438 See supra note 275 and accompanying text.
439 Some cases do not fit this pattern, but they are plainly outside the mainstream. Thus, in Belknap v. Schild, 161 U.S. 10 (1896), suit had been brought against federal officers in a federal district court, alleging infringement of a patent, and seeking damages, and an injunction against further infringement. Upon a finding that the plaintiff’s patent had indeed been infringed, the Court sustained the award of damages against the officers, but held that the injunction against them impinged upon the sovereign immunity of the United States. On this point, the Court, relying on a single English case, held that where the United States had “both the title and the possession of the property” the United States was an indispensable party. Belknap, 161 U.S. at 25. An attempted interference with transfer of possession was what was involved in the English case. Id. at 24. But, in light of the Court’s earlier holdings, it is difficult to see why sovereign immunity should have stood in the way of a decree against the officer enjoining continued infringement and affecting neither title nor possession.
In Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911), the college, which occupied state-owned land bordering a river, had built a protective dike, with resulting flooding to plaintiff’s land on the other side. The college was held amenable to a decree for damages, but not to one requiring it to remove the dike. As to the latter point, the state was held to be an indispensable party. Hopkins, 221 U.S. at 649. But it was not suggested that the college, which had put up the dike for its own convenience, had been acting in that regard as an instrumentality of the state. If the state was nevertheless an indispensable party under the niceties of the law of property and jurisdiction, it is arguable that these bodies of law, which deal with different universes of societal and legal concern, should not be assumed to be incorporated wholesale into the law of sovereign immunity.
In other cases the claimant might have succeeded had a different remedy been sought. In Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883), the state had held a first mortgage on a railroad. The claimants were the owners of a second mortgage. Upon default under the first mortgage, the governor conducted a sale, by the terms of which, according to the claimants, they were effectively precluded from bidding. Thereupon the claimants sued to set aside the sale and to foreclose on their own mortgage. The holding was that the state, as title owner, was an indispensable party; the claimants “would get no title in the absence of the State.” Id. at 457. But if the allegations were true, this was a case of essentially confiscatory behavior by the state, acting through its governor. Since what was in issue was not money in the state treasury but specific property, a possessory decree running against the officers occupying the property should have been feasible. In Chandler v. Dix, 194 U.S. 590 (1904), the plaintiff failed to get relief from the consequences of a tax sale. There was no assertion of irregulatory in the conduct of the sale itself. The claim, rather, was that the statute that levied the tax was unconstitutional. More importantly, the Court understood the plaintiff to be seeking “primarily . . . to remove a cloud upon the plaintiff’s title.” Id. at 590. The state was therefore deemed to be an indispensable party. Id. at 591. Conceivably, a demand for possessory relief, not impugning the state’s title, would have fared better.
440 465 U.S. 89 (1984).
441 Id. at 98.
442 Pennhurst itself was a state instrumentality, and some other state instrumentalities were also named, but it is clear from the opinion that the result would have been the same if only the officers had been named. See id. at 108 n.16
443 Id. at 92.
444 Id. at 95–96.
445 Pennhurst, 465 U.S. at 105.
446 Id. at 106.
447 Id. at 112 n.25.
448 Id. at 116.
449 Pennhurst, 465 U.S. at 114 n.25.
450 Id.
451 Id.
452 Id. at 115.
453 Pennhurst, 465 U.S. at 109 n.17. The quoted phrase is from Ex parte Young, 209 U.S. at 160. The Court was responding to an argument of the Pennhurst dissenters in favor of federal injunctive relief for both federal and state claims.
454 457 U.S. 307 (1982).
455 Id. at 324. As it happened, the only relief sought in Youngberg by the time the case reached the Supreme Court was a damage award against certain officers. See id. at 311. It is difficult to believe, however, that the Court would have disapproved of injunctive relief to require that the standards be met.
456 Pennhurst’s treatment of pendant jurisdiction is discussed infra Part VI.B.
457 See supra note 272 and accompanying text.
458 513 U.S. 106, 109–10 (1994).
459 Hart & Wechsler, supra note 71, at 850–53; Hill, Constitutional Remedies, supra note 65, at 1113–16.
460 McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18 (1990). Professors Fallon and Meltzer read McKesson and First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), as constituting exceptions to the rule that the states are not required to pay damages for unconstitutional takings. Richard H. Fallon, Jr., & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1825–26 (1991); see also infra Part V.C (discussing First English). The cases they cite as exemplifying the general rule all involved unconsented suits. Id. at 1781 n.253, 1784–85 n.283. But in both McKesson and First English the states had consented to be sued. The issue of sovereign immunity is irrelevant to the question whether the Supreme Court may consider the adequacy of the remedy in a consented suit.
461 See 513 U.S. at 111.
462 Id.
463 Id. at 109–10.
464 See supra note 459 and accompanying text.
465 See infra note 489 and accompanying text.
466 482 U.S. 304 (1987).
467 Prior to the advent of such statutes, the claimant’s only recourse was to pursue a common-law remedy against the officer.
468 Id. at 308.
469 Id.
470 Brief for the United States as Amicus Curiae Supporting Appellee, First English, 482 U.S. 304 (1987) (No. 85–1199).
471 See id.; First English, 482 U.S. at 316 n.9.
472 See Brief for the United States, First English (No. 85–1199).
473 See id.; United States v. Varig Airlines, 467 U.S. 797, 809–10, 814 (1984); United States v. Lynch, 292 U.S. 571, 582 (1934); Schillinger v. United States, 155 U.S. 163, 168 (1894); United States v. Jones, 109 U.S. 513, 518 (1883).
474 First English, 482 U.S. at 314–15.
475 United States v. Dickerson, 331 U.S. 745 (1947) (Tucker Act); United States v. Causby, 328 U.S. 256 (1946) (Tucker Act); Jacobs v. United States, 290 U.S. 13 (1933) (Tucker Act); Seabord Air Line R.R. v. United States, 261 U.S. 299 (Lever Act). The Court also cited San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621 (1981), an inverse condemnation proceeding that was consented to, presumably under the same California statute that was involved in First English.
476 Kirby Forest Industs., Inc. v. United States, 467 U.S. 1 (1984). Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893).
477 United States v. Clarke, 445 U.S. 253 (1980).
478 482 U.S. at 316 n.9.
479 An illustration would be state breaches of the Contract Clause. See supra text accompanying notes 365–366.
480 292 U.S. 313 (1934); see also supra notes 167–174 and accompanying text (discussing Principality of Monaco).
481 Principality of Monaco, 292 U.S. at 327–29.
482 455 U.S. 422, 430 (1982).
483 E.g., United States Trust Co. v. New Jersey, 431 U.S. 1, 19 n.16 (1977) (“[c]ontract rights are a form of property and as such may be taken for a public purpose provided that just compensation is paid”); Goss v. Lopez, 419 U.S. 565 (1975) (suspension of public school student without opportunity to be heard is deprivation of property interest in education); United States v. Causby, 328 U.S. 256 (1946) (repeated low flights by military planes with disruptive effects on operation of chicken farm constituted a taking of beneficial use of the property); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 312 (1950) (chose in action).
484 See supra notes 124–126 and accompanying text.
485 United States v. Nixon, 418 U.S. 683 (1974).
486 Powell v. McCormack, 395 U.S. 486 (1969).
487 E.g., Virginia v. West Virginia, 206 U.S. 290 (1907); see also Paul M. Batol et al., Hart & Wecshler’s The Federal Courts & The Federal System 322–33 (3d ed. 1988) (providing a subsequent history of the Virginia case).
488 See supra notes 312–318 and accompanying text.
489 178 U.S. 436, 445 (1900).
490 Id. at 445.
491 See Jackson, supra note 1, at 29. It is submitted that the Court’s language is susceptible to another interpretation—a recognition that if the state does not consent to suit in the first place there is nothing for the Supreme Court to review. If the state court bars the suit on the basis of sovereign immunity, its judgment rests on an independent state ground, thereby depriving the Supreme Court, as it has said, of jurisdiction to consider any federal questions in the case. E.g., Herb v. Pictairn, 324 U.S. 117, 126 (1945). The subject is discussed in Alfred Hill, The Inadequate State Ground, 65 Colum. L. Rev. 943 (1965).
492 Jackson, supra note 1, at 35–39.
493 19 U.S. (6 Wheat) 264 (1821).
494 U.S. Const. art. III, § 1.
495 Cohens was such a case, having been instituted as a criminal proceeding in a state court. Virginia contended that the defendant’s application to the Supreme Court for a writ of error constituted a suit against the state. The Court rejected this contention, declaring that, the proceeding, having commenced as a suit by the state against an individual,” it retained this character “[w]hatever the state of its progress.” 19 U.S. at 409.
496 McKesson Corp. v. Division of ABT, 469 U.S. 18, 28 (1990).
497 E.g., Clark v. Bernard, 108 U.S. 436, 437 (1883).
498 Pennhurst, 465 U.S. at 117–19. The rule of pendent jurisdiction, now codified at 28 U.S.C. § 1367, is generally to the effect that a federal court having jurisdiction over one claim may adjudicate a second claim so closely related as to form part of the same case or controversy, even though the court does not have independent jurisdiction with respect to the latter claim. Other aspects of Pennhurst are discussed supra Part IV.E.
499 Pennhurst, 465 U.S. at 119.
500 Id. at 120.
501 Id.
502 Id.
503 Id.
504 See supra notes 287–296 and accompanying text; see also Currie, supra note 296, at 165 (asserting that the majority’s conclusion in Pennhurst was “unconvincing” given the Court’s prior precedent).
505 It does not follow that the exercise of federal jurisdiction in such a case is desirable. As the Court emphasized, the state officers were doing the best they could with the inadequate funds provided by the state legislature. Absent a federal issue, it is arguable that such a case is a proper one for abstention. See Hart & Wechsler, supra note 71, at 1246–56; Shapiro, supra note 1, at 79 & n.109. But federal issues are commonly present in such lawsuits, and the advantages of pendent jurisdiction should not be foregone without good reason. The problem is with the traditional rule that prevents decision on federal constitutional questions if the case can be decided on any other basis. Perhaps it is time to consider whether this rule should be followed without exception.
506 Shapiro, supra note 1, at 81.
507 440 U.S. 410 (1979).
508 Id. at 411–12.
509 Id. at 426.
510 Id. at 416–17. On this point the Court quoted from Chief Justice Marshall’s opinion in The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116, 136 (1812).
511 Hall, 440 U.S. at 418.
512 Id. at 419.
513 Id. at 439 (Rehnquist, J., dissenting). The dissenters relied, inter alia, on the right-to-travel precedents. Id. at 430 (Blackmun, J., dissenting).
514 See The Federalist No. 39, supra note 22, at 214 (James Madison) (“Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact . . . .”).
515 Hill, Law-Making Power, supra note 191, at 1030–32.
516 In Illinois v. City of Milwaukee, 406 U.S. 91 (1972), Illinois petitioned the Supreme Court for leave to sue a number of Wisconsin political subdivisions under the Court’s original jurisdiction. The claim was founded on the alleged pollution of Lake Michigan by the defendants. The case was held to be governed by federal common law, and one that could be adjudicated by the Supreme Court. Noting, however, that its jurisdiction in a controversy between a state and non-state parties was not exclusive, the Court remitted the parties to “an appropriate district court.” Id. at 108.
In Hinderlider v. La Plata River & Cherry Creek Ditch Co., the Court, on review of a judgment rendered by a state court, in a suit between a private corporation and a state officer, held that the federal common law governing the use of interstate waters was binding where appropriate to the issues. 304 U.S. 92, 110 (1938). This rule was developed by the Court in controversies between states. Id. at 102–03.
In an earlier article, this writer expressed the view that federal common law applicable in controversies between states does not come into existence until established by authoritative decisions. Hill, Law-Making Power, supra note 191, at 1032 n.47 (1965). It now seems to the writer that this conclusion was unsupportable in principle. Thus, after the decision in Erie R.R. v. Tompkins, 304 U.S. 64 (1938), a number of inferior federal courts, mindful of Erie’s command to apply state law, rejected the proffer of what was claimed to be state law unless such law had been authoritatively established by the highest state courts. It should have been obvious that the inferior state courts themselves could not have functioned under such a rule and that in adhering to this rule the federal courts were not really applying state law. This development was arrested in Bernhardt v. Polygraph Co. of America, 350 U.S. 198 (1956). This lesson applies to the federal common law as well. When law of a particular jurisdiction is controlling, decision should be made in light of the probable outcome in the highest court of that jurisdiction.
517 See the discussion of representative cases in Illinois v. City of Milwaukee, 406 U.S. at 104–08.
518 The Supreme Court seemed to recognize this in an ambiguous footnote in Hall, 440 U.S. at 424 n.24.
519 This point is developed supra notes 122–126 and accompanying text.