Three-Dimensional Sovereign Immunity

54 Pages Posted: 4 Mar 2013 Last revised: 28 Feb 2015

Date Written: March 31, 2014


The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

Keywords: sovereign immunity, federal sovereign immunity, separation of powers

Suggested Citation

Brinton, Sarah L., Three-Dimensional Sovereign Immunity (March 31, 2014). 54 SANTA CLARA L. REV. 237 (2014) , Available at SSRN: or

Sarah L. Brinton (Contact Author)

affiliation not provided to SSRN

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