Saving Nevada v. Hall

23 Pages Posted: 17 Oct 2018 Last revised: 22 Apr 2019

Date Written: April 14, 2019

Abstract

Franchise Tax Board v. Hyatt has now come before the Supreme Court for the third time. The interesting question is cleanly raised at last, whether Nevada v. Hallshould be overruled. Nevada v. Hallis the case in which the Supreme Court held that a state could haul a sister state into its courts —and, what is more, could disregard the defendant state’s sovereign immunity. Forty-four states have joined in a brief urging the Court to grant review and to overrule Nevada v. Hall. The Justice Department takes the same position. Those are heavy guns. But if we lose Nevada v. Hallwe will lose certain advantages, identified in this paper, advantages to state and nation. It needs to be remembered that state immunity in the United States is immunity in name only. Under typical state law, there are workarounds —statutory mechanisms such as tort claims acts, or customary mechanisms such as indemnification —that deal with misconduct by a state’s own employees or officials. And federal civil rights law controls intentional misconduct by state officials to some extent. Until Nevada v. Hallthere were two remedial gaps in judicial control of state misconduct. These gaps created, in effect, a license to state officers or employees to intrude extraterritorially into other states, and, abusively or recklessly, to cause harm to persons there. Nevada v. Halland Franchise Tax Boardare functioning to fill these gaps. Nevada v. Hallis serving as a needed interstate non-federal tort claims act at common law. Franchise Tax Boardis serving as a needed interstate non-federal civil rights act at common law. These systemic benefits, it is argued here, are similar to the proven benefits of the statutory mechanisms on which these new remedies are modeled, and should outweigh the inconvenience and relatively modest costs to a state of having to defend in a sister state, since every state already provides in its budget for maintenance of its courts and legal department, and, as a practical matter, typically would have defended the identical case, at substantially similar cost, if brought in its own courts, particularly if initially brought against the relevant employee or official. These new mechanisms would support the more vital interests of every state in having the power to vindicate its own concerns, when it itself is the place of injury caused by the extraterritorial misconduct or reckless conduct of an officer or employee of a sister state.

Note: (This is an updated draft as of November 13, 2018.)

Keywords: Nevada v Hall, Franchise tax board, Hyatt, Sovereignty, Place of injury, Policies, Governmental Interests, Federalism

Suggested Citation

Weinberg, Louise, Saving Nevada v. Hall (April 14, 2019). Available at SSRN: https://ssrn.com/abstract=3254349 or http://dx.doi.org/10.2139/ssrn.3254349

Louise Weinberg (Contact Author)

University of Texas at Austin ( email )

2317 Speedway
Austin, TX 78712
United States

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