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
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