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http://ssrn.com/abstract=1270625
 
 

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The Appropriations Power and Sovereign Immunity


Jay Tidmarsh


Notre Dame Law School

Paul Figley


American University - Washington College of Law

September 19, 2008

Michigan Law Review, Vol. 107, No. 7, 2009
Notre Dame Legal Studies Paper No. 08-28
American University, WCL Research Paper No. 2009-16

Abstract:     
Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English common-law decisions on sovereign immunity. After (and in part because of) the Bankers’ Case, settling claims against the Crown became a function of Parliament, swept up within its newly won powers over finance and appropriations. After examining comparable developments in the American colonies and during the Confederation period and the formation of the Constitution, the Article demonstrates that the Appropriations Clause embedded in the Constitution the principle of congressional supremacy - and a resulting lack of judicial power - over monetary claims against the United States, a point recognized by early cases and commentators. As such, the Appropriations Clause provides a textual basis for the federal government’s immunity from suits on claims seeking money damages.

Number of Pages in PDF File: 63

Keywords: Constitutional Law, Federal Courts, Legal History, Sovereign Immunity, Appropriations Clause

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Date posted: September 21, 2008 ; Last revised: February 17, 2011

Suggested Citation

Tidmarsh, Jay and Figley, Paul, The Appropriations Power and Sovereign Immunity (September 19, 2008). Michigan Law Review, Vol. 107, No. 7, 2009; Notre Dame Legal Studies Paper No. 08-28; American University, WCL Research Paper No. 2009-16. Available at SSRN: http://ssrn.com/abstract=1270625

Contact Information

Jay Tidmarsh (Contact Author)
Notre Dame Law School ( email )
P.O. Box 780
Notre Dame, IN 46556-0399
United States
574-631-6985 (Phone)
574-631-4197 (Fax)
Paul Figley
American University - Washington College of Law ( email )
4801 Massachusetts Avenue N.W.
Washington, DC 20016
United States
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