Download This PaperSovereign Immunity and Interstate Government Tort
77 Pages Posted: 29 Apr 2020 Last revised: 13 Apr 2021
Date Written: April 4, 2020
Abstract
This paper argues that the Supreme Court made a serious mistake last term, when, in a case of interstate government tort, it tore up useful options that should be available to each state for the rare cases in which they would be of service. In seeking to insulate a state from liability when its employee intrudes on a sister state’s territory and causes injury there, the Court unthinkingly stripped all the states of power, in cases of interstate government tort, to try injuries occurring on their own territory to their own residents—an unprecedented disregard of a state’s acknowledged traditional interests. Indeed, the Court went beyond interstate government tort and seemed to say that the Constitution prohibits litigation against a state in all cases, whether to enforce state or federal law, whether in state or federal courts. It is argued that the Court’s originalist and structural reasons for this sweeping view cannot withstand scrutiny. Moreover, the Court’s decision contravenes the actual interests even of defendant states, which typically meet their tort responsibilities. Real damage has been done, but it is argued that conservative and liberal views on judicial review of government action in time may well converge to put an end to judicial abnegations of the duty to place government at all levels under the rule of law.
Keywords: state sovereign immunity, interstate constitutional tort, Franchise Tax Board, Nevada v. Hall, federalism, sovereignty
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