Sovereign Immunity's Penumbras: Common Law, 'Accident' and Policy in the Development of Sovereign Immunity Doctrine

70 Pages Posted: 2 Jul 2008 Last revised: 10 Jul 2017

Date Written: November 14, 2008


At their core, what sovereign immunity doctrines prohibit is generally clear: a suit against an unconsenting sovereign (whether a state, a tribe, a foreign nation, or the federal government) for money damages. When suits fall outside this configuration, however, courts often have difficulty determining exactly how far the doctrine should extend. What should courts do, for example, when a sovereign is not a named defendant in a given suit, but will have to join the litigation if it wishes to defend its interests? What about a suit that is against a party closely affiliated with the sovereign and that aims to influence the sovereign's exercise of its traditional prerogatives? In situations like these, some courts have held that sovereign immunity bars the suit from going forward - even though, under the formal doctrinal definition of sovereign immunity, it is by no means clear that any obstacle to these suits exists. This Article aims both to explore this phenomenon in its own right and to use it as a jumping-off point to consider what continuing role courts can and should have in the evolution of sovereign immunity doctrine. To do so, it sketches out a theory of how sovereign immunity has functioned and continues to function as a common-law doctrine, evaluates the guiding policy principles that courts have considered in choosing whether to extend sovereign immunity beyond its strict doctrinal boundaries, and surveys the main circumstances under which courts have formulated what might be called a "penumbral" version of sovereign immunity. It concludes by attempting to set forth several principles courts should consider in deciding whether sovereign immunity applies in novel situations.

Keywords: sovereign immunity, tribal sovereign immunity, Rule 19, indispensable parties, res judicata

Suggested Citation

Florey, Katherine, Sovereign Immunity's Penumbras: Common Law, 'Accident' and Policy in the Development of Sovereign Immunity Doctrine (November 14, 2008). Wake Forest Law Review, Vol. 43, No. 4, 2008; UC Davis Legal Studies Research Paper No. 159. Available at SSRN:

Katherine Florey (Contact Author)

University of California, Davis ( email )

One Shields Avenue
Davis, CA 95616
United States

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