The Continuing Drift of Federal Sovereign Immunity Jurisprudence

90 Pages Posted: 9 Apr 2008 Last revised: 18 Nov 2008

See all articles by Gregory C. Sisk

Gregory C. Sisk

University of St. Thomas School of Law (Minnesota)


With the enduring doctrine of federal sovereign immunity, it is too late in the day to suggest that the United States should be treated as an ordinary party in the federal courts. Yet as the Supreme Court has become more comfortable with the increasingly common encounter with a statutory waiver of immunity, the rigidity of interpretive approach has eased. An early jaundiced judicial attitude has resolved into a greater respect for the legislative promise of relief to those harmed by their government. After sketching the history of statutory waivers over the past century-and-a-half and examining Supreme Court decisions across the decades, this Article maintains that a coherent and principled jurisprudence of federal sovereign immunity has been emerging. Absolute jurisdictional analysis is being reserved for verifying the existence of a statutory waiver for a general class of claims, while strict construction is more judiciously employed to preclude judicial implication of new causes of actions or remedies. By contrast, the Court is more inclined to use ordinary modes of statutory construction when examining other standards, limitations, or exceptions in statutory waivers, even presuming that procedural rules apply in government cases in the same manner as in private litigation. Unfortunately, a recent Supreme Court decision resurrected an old line of cases that translated a statute of limitations for certain claims against the United States into a jurisdictional rule. The Article suggests that the negative effect of this decision on the course of the law, although not negligible, is limited by the decision's reliance on stare decisis. The Article concludes that the Court should speak more purposively to interpretive approach in the future, if the renewed drift in its federal sovereign immunity jurisprudence is to be arrested.

Keywords: Sovereign immunity, waiver of sovereign immunity, federal sovereign immunity, statutory interpretation, litigation with the federal government, suits against the government, practice and procedure, statutes of limitations

Suggested Citation

Sisk, Gregory C., The Continuing Drift of Federal Sovereign Immunity Jurisprudence. William & Mary Law Review, Vol. 50, p. 517, 2008, U of St. Thomas Legal Studies Research Paper No. 08-11, Available at SSRN:

Gregory C. Sisk (Contact Author)

University of St. Thomas School of Law (Minnesota) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4892 (Phone)

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