Sovereign Immunities and Other Statutory Mechanisms Regulating Holdout Litigation

Sovereign immunity, which is confirmed by the Eleventh Amendment, has enormous significance for education lawyers and their clients. Essentially, “sovereign immunity of the States” means that private individuals or corporations cannot sue the States, state agencies, or state institutions. Therefore, if a state university or a school district is considered an “arm of the State,” then both the entity and its administrators, when sued in their official capacities, generally are immune from lawsuits. During the last years of the Rehnquist Court, the Supreme Court frequently addressed sovereign immunity issues. Between 1996 and 2002, a five Justice majority – Chief Justice Rehnquist, Justice O’Connor, Justice Scalia, Justice Kennedy, and Justice Thomas – effectively restored and expanded the sovereign immunity of the States. In each of these cases, this majority was opposed by a four Justice dissenting bloc – Justice Stevens, Justice Souter, Justice Ginsburg and Justice Breyer. Although the Justices refused to expand sovereign immunity during the last years of the Rehnquist Court, the Court did not disturb the jurisprudential foundation that it had constructed between 1996 and 2002. With the death of Chief Justice Rehnquist and the retirement of Justice O’Connor, it is somewhat unclear where the Court stands. The fact that the Chief Justice joined Justice Thomas’ vigorous dissent in Central Virginia Cmty. Coll. v. Katz, suggests that he supports the reasoning of the 1996 through 2002 decisions. Justice Alito, who joined the Court after Katz was decided, was generally supportive of sovereign immunity during his tenure on the U.S. Court of Appeals for the Third Circuit. Thus, it is likely that there are five Justices – Chief Justice Roberts, Justice Scalia, Justice Kennedy, and Justice Alito – who will continue to support an expansive interpretation of sovereign immunity. I am optimistic about the future of sovereign immunity. Indeed, I believe that the Roberts Court will reaffirm the 1996 to 2002 precedents and will even expand the scope of the State’s sovereign immunity. In particular, I believe that the Roberts Court will: (1) limit Congress’ power to abrogate sovereign immunity to statutory claims that are also constitutional claims; (2) limit Congress’ power to use the Spending Clause to exact waivers of sovereign immunity to statutory claims that are also constitutional claims; and (3) restore a State’s sovereign immunity in the Courts of another State. The purpose of this Essay is to explain my beliefs about the future of sovereign immunity. This purpose is accomplished in three sections. First, because many readers may be unfamiliar with the Court’s sovereign immunity jurisprudence, Section I provides a general background of both the constitutional theory and recent developments in sovereign immunity. Second, because it is difficult to understand my beliefs about the future of sovereign immunity without understanding the exceptions to sovereign immunity, Section II briefly explains the exceptions to sovereign immunity – abrogation, waiver, exposure to a counter-claim, no immunity in the courts of another State, and the Ex parte Young doctrine. Third, Section III explores why I believe that it is likely that the Roberts Court will limit abrogation to statutory claims that are also constitutional claims, limit the ability to exact waivers to statutory claims that are also constitutional claims, and restore a State’s immunity in the courts of another State.

This chapter examines the extent to which states can raise the defence of sovereign immunity from suit and execution. It describes three exceptions to immunity from suit that may apply in cases involving cultural property. The first is the ‘commercial exception’ to state immunity, such as that provided by article 10 of the United Nations Convention on State Immunity (UNCSI), or § 1605(a)(2) of the Foreign Sovereign Immunities Act (FSIA) in the United States. The second is the ‘ownership, possession, and use of property’ exception and its limitations (as per article 13 UNCSI, or § 1605(a)(4) FSIA). The third is the ‘expropriation’ exception of § 1605(a)(3) of the FSIA. The chapter discusses the difficulties resulting from the recognition of these limited exceptions. In the area of immunity from execution, it considers the extent to which a ‘cultural heritage’ exemption from measures of constraint is legitimate when claims for the recovery of art based on customary or treaty obligations or for the return of cultural objects taken away in times of war or peace are brought before the courts. It also discusses the contours and feasibility of a ‘cultural human rights’ exception to sovereign and sovereign-property immunity along the lines of the Italian Ferrini jurisprudence.

Jurisdiction — Territorial — Exemptions from — Foreign States — Sovereign immunity — Effect of failure to request dismissal of suit on ground of sovereign immunity through State Department and Attorney General — Time within which suggestion of immunity by Attorney General must be made — The law of the United States of America.States as international persons — Recognition of acts of foreign States and Governments — Suit by United States shareholders of Cuban corporation against arm of Cuban Government seeking damages for confiscation of corporation's assets in Cuba — Act of State doctrine — Sovereign immunity — The law of the United States of America.

Until recently, sovereign immunity — the doctrine that protects state entities from suit without the State’s consent — had been held by the Supreme Court of Georgia not to apply to suits seeking solely injunctive relief to prevent the State, its departments, or agencies from acting illegally or outside the scope of their authority. This rule stemmed partly from the fact that a significant policy basis for sovereign immunity is the protection of taxpayer funds, but also was grounded on the principle that the State may not “cloak itself in the mantle of sovereign immunity” to prevent its citizens from holding the State accountable to its own laws. In a recent case, however, the Supreme Court of Georgia nullified this longstanding principle by overruling a previous decision recognizing and affirming it. The Court’s decision to overrule the earlier case was based on a purportedly textualist analysis of a 1991 amendment to Georgia’s Constitution reserving sovereign immunity to the State, its departments, and agencies, and granting the exclusive power to waive sovereign immunity to Georgia’s General Assembly. Textualism, an approach to statutory and constitutional interpretation, requires courts to interpret texts based on the ordinary meaning of the terms employed within their context. Georgia courts’ interpretation jurisprudence typically reflects textualist principles. Although the Court examined the language in several portions of the Constitution’s sovereign immunity provision, it neglected the meaning of the provision’s most significant phrase: “sovereign immunity” itself. The Court failed to consider the constitutional language within its appropriate historical context, namely by refusing to examine the historical meaning of sovereign immunity as developed through decisions of the Georgia courts. This Article concludes that the Court’s decision is unsupported by the textualist principles of constitutional interpretation that it espouses and by the Court’s own precedent on the interpretation of constitutional text.

Jurisdiction-Exemptions from — Foreign States — Sovereign immunity — Where foreign State has broken off diplomatic relations with United States — The law of the United States of America.Recognition — Of Governments — Rupture of diplomatic relations — Effect on standing to sue in courts in United States — Effect of breach of diplomatic relations upon sovereign immunity — The law of the United States of America.

In recent years, the Supreme Court has expanded the Eleventh Amendment concept of state sovereign immunity to limit the extent to which individual litigants may assert federal rights against states in federal court. In its 1998 term, the Supreme Court extended the sovereign immunity doctrine to shield states from federal claims asserted by individuals in state courts as well. While the Court has carved out exceptions to the sovereign immunity doctrine, it has consistently held that if Congress wishes to make states liable in federal court through one of those exceptions, it must do so by clearly expressing its intent to abrogate states' sovereign immunity. This Note focuses on one of the exceptions to sovereign immunity-the constructive waiver of sovereign immunity that sometimes occurs when states accept federal funds-and argues that the clear statement requirement should not be applied to federal funding legislation that seeks to provide individual claimants a right to sue their state in state court.

The United States follows the restrictive view of sovereign immunity which does not automatically immunize a foreign sovereign from suit arising from actions of the sovereign nation or its instrumentalities that are equated with the actions of parties as opposed to public actions of a sovereign. Within that definition of conduct are actions involving the taking of property in violation of international law or that amount to commercial dealings, such as buying, selling and lending, that are equivalent to the commercial activity of private parties. The restrictive theory of sovereign immunity has been practiced by a number of sovereign nations since the early part of the twentieth century, but the question exists as to when the United States first officially announced its adherence to the restrictive doctrine. Many courts and scholars have traced the official adoption to what has come to be called the Tate Letter in 1952. In fact, there is a fundamental misconception in the present jurisprudence of certain United States courts that the Tate Letter effected a complete turnabout from system of absolute sovereign immunity to one of restrictive sovereign immunity. This reading simply is unsupported by the cases. It is my position that the principles of the restrictive theory were adopted and applied by United States courts early in the Nineteenth Century, starting with three landmark decisions of the Marshall court, and only for a brief period from 1926 to 1938 did the United States Supreme Court send a mixed message concerning the absolute theory of sovereign immunity that contrasted with the more restrictive message being espoused by the State Department and executive branch during the same period. Courts currently are addressing the question of the propriety of the exercise of jurisdiction under the Foreign Sovereign Immunities Act (FSIA) for claims arising from war crimes that arose prior to the effective date of the statute, January 1, 1977, and prior to the Tate Letter in 1952. Part of what is at stake is jurisdiction over wartime plunder and expropriation claims arising from the conduct of the German belligerent forces and their agents and instrumentalities during the Holocaust and in World War II that violated international law. Claims have been brought in United States courts for recovery of stolen art work, as well as confiscated real and personal property. There is a circuit split among the United States Courts of Appeals regarding the exercise of jurisdiction under the FSIA for claims arising prior to 1952, several of which involve World War II era war crimes. The lines are drawn around four issues regarding the application of the FSIA: first, whether the FSIA is a jurisdictional statute, allocating or affirming the power of courts to hear certain cases without regard to whether the conduct, causes of action, and substantive defenses to the action arose prior to its effective date or prior to 1952; second, whether the FSIA is a procedural statute that applies to actions arising from operative facts that occurred before the effective date of the statute and before 1952 because it does not affect antecedent rights of the parties and thus is not retroactive; third, if the application of the FSIA to pre-enactment conduct or to conduct predating the 1952 announcement of the United State's adherence to the restrictive theory of sovereign immunity does in fact affect substantive rights of state parties, namely rights to sovereign immunity under U.S. law, whether the retroactive application of the statute was clearly indicated and intended by Congress based on the language and design of the FSIA; and fourth, whether the conduct of the Nazi regime and its agencies and instrumentalities in World War II should have defeated the expectations of these state parties that they would receive immunity from prosecution in foreign courts, thus refuting the claim that retroactive application of the FSIA actually violates substantive rights under customary international law. This article will address each of these issues regarding the application of jurisdiction under the FSIA to World War II and other pre-1952 war crimes including claims involving expropriation and plunder of personal property, and will conclude that none of these issues prevents the exercise of jurisdiction under the FSIA for resolution of these claims in United States courts.

Sovereign immunity — Foreign States and State-owned enterprises — Action for breach of contract — Sovereign immunity — Waiver — Need to establish personal jurisdiction — Whether waiver of immunity amounts to implied submission to jurisdiction — Arbitration clause — Commercial activities provisions of the Foreign Sovereign Immunities Act 1976 — Relationship between substantive and procedural questions — The law of the United States

The topics of liability and negligence as they relate to water main failures are discussed from both a historical and current viewpoint. The historical perspective is provided in a 1948 Journal AWWA article, and we consider changes in liability issues from that time to the present. Case studies from various states are also presented that will provide water utilities insights into sovereign immunity and what constitutes discretionary function. Some of the key findings for water utilities were: that they should understand the laws and relevant legal decisions in their state because each state has its own laws related to how immunity is determined; that even immunity, in some states and or cases may not be the final determining factor that can relieve them from liability for breaks and leaks; that they should implement a written policy or plan to address deteriorating infrastructure; and that they should keep accurate and comprehensive records. 1.0 Sovereign Immunity Common law is the body of law developed in England primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and constituting the basis of the English legal system and of the system in all of the United States except Louisiana. “Sovereign immunity,” is a key English common law concept in understanding liability associated with government actions. The phrase “the King can do no wrong” embodies the meaning of sovereign immunity that comes from common law and took hold in the United States. As early as the 1821 case of Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257, the Supreme Court recognized the sovereign immunity of the United States, and this immunity also applied to state and local governments. However, there was an undercurrent of controversy on this issue. Some thought that the government should not be immune from such liability, but nonetheless, the common law prevailed. There was at least one interesting exception to sovereign immunity in the common law; however, and that had to do with the provision of water. Under common law, a governmental entity was liable for negligence in the provision of water, if the water provided was done so as a proprietary function. The distinction in common law between the governmental function of furnishing water for fire purposes, for which there was immunity, and the proprietary function of furnishing water to individuals for compensation, in which there was no immunity, can be found in a number of historical legal cases, and was a key point in the 1948 Journal AWWA paper.

States as international persons — In general — Sovereignty and independence — Waiver of rights — Sovereign immunity from pre-judgment attachment — Exception of explicit waiver — Requirements and meaning of — The law of the United StatesJurisdiction — In general — Territorial — Exemptions from and restrictions upon territorial jurisdiction — Foreign States — Instrumentality of government — Prejudgment attachment of assets — Sovereign immunity — Exception of explicit waiver of immunity — Foreign Sovereign Immunities Act 1976, Section 1610(d)(1) — Whether words “prejudgment attachment” necessary as operative formula for waiver — Meaning of term “explicit” — Intention of contractual parties — The law of the United States

THE SOVEREIGN IMMUNITY of Native American tribes has been a well-engrained principle of federal Indian law for time eternal. Pursuant to this principle, tribes are viewed as independent sovereigns and therefore are accorded the same sovereign rights and immunities as state governments and local municipalities.1 The doctrine of sovereign immunity provides tribes with a “common law immunity” from suit.2 It is well-settled federal law that tribes, as sovereigns, are immune from suit “without congressional authorization.”3 As explained by the Arizona Federal Court in Hotvela, “tribes are sovereign entities and therefore immunity protects a tribe from nonconsensual actions in state and federal court.”4 The Ninth Circuit Court of Appeals affirmed these principles underlying the application of sovereign immunity last year in a lawsuit involving an Arizona tribe.5 As a general rule, no state, county or city may assert regulatory or jurisdictional power over a tribal government unless the federal government has expressly granted such rights by statute, or the tribe has expressly consented. The Tribal-State Compacts governing Class III gaming throughout Indian Country in the United States pursuant to the Indian Gaming Regulatory Act (IGRA) are a prime example of tribes ceding certain sovereign rights through compromised legislation. Further, no one may sue a tribe without the tribe having expressly agreed to waive its sovereignty rights. This includes pursuing a suit in Tribal Court, as well as through nonjudicial forums such as arbitration. As everyone who has done business with and on behalf of Native American gaming operations knows, tribal casinos must be owned by the tribe pursuant to IGRA. As a result, the tribal gaming enterprises are typically structured as economic subordinates of the tribal government. This generally holds true regardless of whether the tribal casino is operated directly by the tribe, as a separate corporation or other entity formed under tribal law. By virtue

Sovereign Decisions:A Plan for Defeating Federal Review of Tribal Law Applications Judge Steve Russell (bio) Congress, Indian lawyers quickly learn, can do pretty much as it pleases with or to Indian nations, starting with unilateral treaty abrogation1 and continuing to the classification of Indians for legal purposes in a manner that would not pass equal protection scrutiny if applied to other minorities.2 Indians' unique status for equal protection purposes can be used to help Indians3 or to hurt them,4 and it flows from their status as the original political entities owning the dirt on which the United States rests. Without the sovereign status of Indian nations, and their ability to make land cession treaties, every land title on the continent would rest on nothing more than the willingness of colonists to remove the aboriginal inhabitants with fire and steel and the willingness of the current occupiers to claim the benefit of that savagery.5 So far, at least, the courts cling to the legal fig leaves woven by Chief Justice John Marshall6 that necessitate some recognition of Indian sovereignty. The average American citizen is ignorant of Indian history and the legal house of cards that Indian sovereignty supports. Sovereignty itself is an obscure concept in American education that most often draws notice in the form of sovereign immunity, an ancient legal doctrine that flows from the maxim "the king can do no wrong." The doctrine has survived kings in the rule that keeps citizens from suing the government without its permission. In the United States, three entities have sovereign immunity: the federal government, state governments, and federally recognized tribal governments. [End Page 65] Everybody hates sovereign immunity when it is brought to his or her attention, and therefore most nontribal governments routinely allow lawsuits over contracts they have entered and garden-variety tort claims such as auto accidents. If they did not, public outrage would probably have killed off the doctrine by now. The Magna Carta, after all, recognized that the king can in fact do wrong, and the American Revolution brought kings into further disrepute in the United States, where legitimate government is firmly believed in this day to derive from the consent of the governed rather than from God. Sovereign immunity on the federal and state levels is a legal anachronism that has survived by making itself invisible in daily life. Everybody hates sovereign immunity of tribal governments even more, because it is misunderstood as racially based and because tribes have handled it less well than states. C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma7 is a case from the 2000–2001 term of the Supreme Court that exemplifies tribal mishandling of sovereign immunity. The Potawatomi entered into a contract. After signing the contract but before work got started, the tribe came across additional information that made the contract appear to be unwise. A nongovernmental entity in that position would have to either go through with the unwise deal or "buy it out"—negotiate a settlement with the other party to get released. Since being a sovereign government means never having to say you are sorry, the Potawatomi simply broke the contract and told C & L Enterprises they were out of luck. When the vendor sued, the tribe claimed sovereign immunity. C & L Enterprises took the position that the arbitration clause in the contract bound the tribe to arbitrate the claim and bound the Oklahoma courts to enter a judgment based upon the arbitration award, because the agreement to arbitration was an implied waiver of sovereign immunity. This position put the Potawatomi in the crosshairs of two lines of recent Supreme Court law, one tending to uphold arbitration agreements and one tending to uphold state authority when it comes into contact with tribal (and often even federal) authority—the modern iteration of "states' rights." The Potawatomi originally could have gotten the product they wanted (rather than the one for which they contracted) from C & L Enterprises for $79,000. The tribe chose to break the contract and go with another contractor for $56,784. To save $22,216, the tribe decided to litigate. The original arbitration award...

The legal debate over state sovereign immunity has persisted practically since the founding. Under the sovereign immunity doctrine, states cannot be sued without their consent even for violations of the Constitution or federal law. Sovereign immunity, thus, kindles the lasting tension between the supposed supremacy of federal law and the separate sovereignty of the states. Since its initial recognition of state sovereign immunity in Hans v. Louisiana, the Supreme Court has recognized several exceptions to the doctrine designed to secure state compliance with federal law. One such exception is the Ex Parte Young doctrine. In Ex Parte Young, the Court announced that individual state citizens could bring suit against state officers in federal court for an ongoing violation of federal law. In recent decades, however, the Supreme Court has vastly expanded the bar of sovereign immunity as an integral part of the “federalist revival” begun by the Rehnquist Court. The Court recently has incorporated the “anti-commandeering” principles from parallel federalism cases into its sovereign immunity jurisprudence, resulting in a significant narrowing of federal judicial power to hear claims against the states. In Virginia v. Reinhard, the Fourth Circuit confronted a question of first impression about the applicability of the Ex Parte Young exception. That case presented the issue of whether a state administrative agency could bring suit in federal court against another state agency to secure its compliance with federal law. In holding that the agency could not bring suit under Ex Parte Young, the Court of Appeals issued a decision with major implications for administrative law and how state agencies may enforce state compliance with federal regulatory schemes. This paper ultimately concludes that Reinhard merely constitutes a natural extension of the sound theoretical principles announced in the Supreme Court’s most recent sovereign immunity cases. Moreover, the practical consequences for state agency enforcement of federal regulatory schemes will be minimal because of the remaining avenues available for enforcing federal rights.

state sovereign immunity. These decisions provide an important occasion for a reconsideration of the entire doctrine of sovereign immunity. This article argues that sovereign immunity is an anachronistic concept, derived from longdiscredited royal prerogatives, and that it is inconsistent with basic principles of the American legal system. Sovereign immunity is justified neither by history nor, more importantly, by functional considerations. Sovereign immunity is inconsistent with fundamental constitutional requirements such as the supremacy of the Constitution and due process of law. This article concludes that sovereign immunity, for government at all levels, should be eliminated by the Supreme Court.

This article addresses an anomaly in bankruptcy and sovereign immunity jurisprudence by drawing upon historical sources from America’s Founding Era and earlier. In the 2006 decision Central Virginia Community College v. Katz, the Supreme Court departed from its previous sovereign immunity decisions to hold that states lack the protection of sovereign immunity in proceedings arising under the Bankruptcy Clause. This article argues that the Katz decision unnecessarily upsets established sovereign immunity doctrine through a flawed interpretation of the Framers’ conception of the congressional bankruptcy power and state sovereign immunity in a federal system. It reveals this jurisprudential error through a detailed study of the historical development of bankruptcy law as well as the constitutional bankruptcy power’s origins, historical context, and contemporary application.