Brief of Professors William Baude and Stephen E. Sachs as Amici Curiae in Support of Neither Party, Franchise Tax Board v. Hyatt

50 Pages Posted: 9 Oct 2018

See all articles by William Baude

William Baude

University of Chicago - Law School

Stephen E. Sachs

Duke University School of Law

Date Written: September 18, 2018

Abstract

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them.

Hall correctly held that States lack a constitutional immunity in sister-state courts. The Founders viewed each State as immune from such suits under the common law and the law of nations. Before the Constitution’s enactment, this was plainly not a constitutional right, and nothing in the Constitution changed that. Thus, Hall properly rejected the argument that there is a “federal rule of law implicit in the Constitution that requires all of the states to adhere to the sovereign-immunity doctrine as it prevailed when the Constitution was adopted.”

Hall went too far, however, in denying that “the Constitution places any limit on the exercise of one State’s power to authorize its courts to assert jurisdiction over another State,” and in reducing sister-state immunity to a “matter of comity.” In particular, Hall was likely wrong to assume that a State’s abrogation of immunity in its own courts could be projected outward so as to bind other state and federal courts.

In an appropriate case, these principles might justify revisiting and narrowing portions of Hall. Yet this case is a poor vehicle for doing so. Because the case has been improperly framed by the parties and cannot be resolved properly without further briefing, the Court should dismiss the writ as improvidently granted. Alternatively, it should dismiss for lack of jurisdiction—or, if satisfied of its jurisdiction, should affirm.

Keywords: sovereign immunity, Nevada v. Hall, state sovereignty, Eleventh Amendment, subject-matter jurisdiction, personal jurisdiction, full faith and credit, judgment recognition

JEL Classification: K4, K40, K41, K49

Suggested Citation

Baude, William and Sachs, Stephen E., Brief of Professors William Baude and Stephen E. Sachs as Amici Curiae in Support of Neither Party, Franchise Tax Board v. Hyatt (September 18, 2018). Available at SSRN: https://ssrn.com/abstract=3251567 or http://dx.doi.org/10.2139/ssrn.3251567

William Baude

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Stephen E. Sachs (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-8542 (Phone)

HOME PAGE: http://law.duke.edu/fac/sachs

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