The suit was brought pursuant to the Rehabilitation Act of , a statute which the Court assumed had been enacted under the authority of Section 5 of the Fourteenth Amendment. The statute provided for remedies against "any recipient of Federal assistance," a class that arguably included States. The Court recognized Congress' power to abrogate a State's immunity in circumstances in which "the usual constitutional balance between the States and the Federal Government does not obtain. Under this more stringent test, the language of many statutes that had been assumed to abrogate sovereign immunity, including the Copyright Act, the Patent Act, and the Lanham Act, failed to achieve that purpose.
Thus, there was reason to believe that States might be immune to suits for damages under the Copyright Act and the other federal intellectual property laws.. The Supreme Court issued another significant ruling in in Pennsylvania v. The Court considered two questions. The Act provided for the liability of "persons" and included within its definition of that term, "States. This ruling strengthened the hand of copyright owners. However, the uncertainty arising from the Atascadero decision remained. As a result of that uncertainty, Congress acted. Thus, once again, the apparent uncertainty about the immunity of States from suits for damages for copyright infringement was removed.
A substantial portion of the legislative history of the CRCA, which would later become critical, was a June, report produced by the Copyright Office entitled "Copyright Liability of States and the Eleventh Amendment. As part of that application, the report cited several instances of alleged copyright infringement by States that had been brought to the Office's attention. Additionally, a Congressional Research Service survey of waivers of sovereign immunity by States and the extent of those waivers was appended to the Copyright Office report.
These acts were nearly identical to the CRCA. Taken together, the three acts appeared to settle the issue of state liability for infringement of intellectual property. What followed was a series of highly controversial decisions, almost all by a highly charged vote. The Court considered the same two issues it had considered in Union Gas. The first was whether Congress has "unequivocally expresse[d] its intent to abrogate [state] immunity. It instructed that district courts would have jurisdiction to hear cases arising from the failure of a State to engage in good faith negotiations.
Obviously, only States could be defendants in such actions and therefore Congress, in enacting this provision, clearly intended the States' immunity to be abrogated. The Court reached this conclusion quickly. The second issue was whether Congress had authority to enact such an abrogation. At the outset of its analysis, the Court noted that "we have found authority to abrogate under only two provisions of the Constitution. However, by a vote the Court reversed itself and overruled Union Gas , finding that "the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government.
Those laws were most intuitively exercises of Congress' Article I power. In his dissent in Seminole Tribe , Justice Stevens noted the potential for the Court's decision to disrupt numerous fields of federal law because "it prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy. Flores City of Boerne. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause.
Congress does not enforce a constitutional right by changing what the right is. It has been given the power "to enforce," not the power to determine what constitutes a constitutional violation.
The Court went on to expound upon what standards Congress must adhere in order to remain within the bounds of its Fourteenth Amendment power. The key to this analysis is that "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. While this was not a sovereign immunity case, it is crucial to sovereign immunity analysis because, after Seminole Tribe , Congress may abrogate state sovereign immunity only pursuant to the Fourteenth Amendment. Thus, this case set the stage for the courts to review the constitutionality of the CRCA and parallel legislation concerning patents and trademarks.
That brings us to the Supreme Court's triad of opinions on June 23, It is worth noting that all three of these cases were decided by the same vote and all three engendered strong dissenting views. The decision in Alden v. Maine Alden 24 undergirded the other two decisions. In that case, John Alden and other employees of the State of Maine filed suit in federal court against that state for violation of the overtime provisions of the Fair Labor Standards Act, a federal law. The dismissal was upheld by the Court of Appeals. Petitioners then filed the same action in state court in Maine.
The state trial court dismissed the suit on grounds of sovereign immunity and the Maine Supreme Judicial Court affirmed. The United States Supreme Court also affirmed. The Court's holding in this case went well beyond the routine recognition that a State is a sovereign entity that maintains an immunity to lawsuits by private parties to which it has not consented.
The Court's holding is important because of the broad applicability of state sovereign immunity to the State's own courts as well as to the federal courts. Specifically, the Court reasoned that the Eleventh Amendment was not the origin of state sovereign immunity. The Court's conclusion that Congress can abrogate a state's sovereign immunity only in narrow circumstances owes it origins to this view.
First, it reserves to them [through the Tenth Amendment] a substantial portion of the Nation's primary sovereignty, together with the dignity and essential attributes inhering in that status. Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation's rejection of "the concept of a central government that would act upon and through the States" in favor of "a system in which the State and Federal Governments would exercise concurrent authority over the people--who were, in Hamilton's words, the only proper objects of government.
A preponderance of the opinion of the Court purports to demonstrate, through numerous references, the historical accuracy of its view of the origins of state sovereignty. Interestingly, the Court did not extend respect for a State's sovereign immunity into the realm of another State's courts. The Court concluded its opinion with an implicit recognition of the potential for states to profit unfairly from its ruling. Thus, the Court noted several limits on its holding. First, states may waive their immunity and Congress may provide incentives for such waiver, as provided in South Dakota v.
The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State. The Court provided cold comfort in its declaration that "[w]e are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. Florida Prepaid Postsecondary Educ. Expense Bd College Savings. In light of the Supreme Court's decision in Seminole Tribe , the District Court granted Florida's motion to dismiss on sovereign immunity grounds. The Third Circuit affirmed.
The Supreme Court also affirmed. The Court considered two avenues through which College Savings' claim could survive state immunity. Second, that by participating in the scheme of the Lanham Act, States have waived their immunity by implication. As I have already outlined, current Supreme Court precedent admits only one source of constitutional authority from which Congress may abrogate state immunity: The Fourteenth Amendment instructs in relevant part that "No State shall. Just the opposite, in fact:. The Lanham Act may well contain provisions that protect consti-tutionally cognizable property interests--notably, its provisions dealing with infringement of trademarks, which are the "property" of the owner because he can exclude others from using them.
However, the Court recognized that College Savings was not suing for trademark infringement, but for misrepresentation. The right to be free from misrepresentation is not, the Court held, a property right within the meaning of the Fourteenth Amendment. Next, the Court turned to the question of implied state waiver of immunity. Invoking the precedent of Parden , College Savings sought to show that Florida had impliedly waived its immunity by participating in a scheme that is enforceable in federal court.
The Court's holding requires that a state's waiver be explicit and voluntary in order to be effective. However, Congress may provide incentives to the state by conditioning use of its discretionary authority such as that found in the Spending Clause and the Compact Clause on state waiver. In the present case, however, what Congress threatens if the State refuses to agree to its condition is not the denial of a gift or gratuity, but a sanction: In a companion case, the third of the three opinions issued on June 23, Florida Prepaid Postsecondary Educ.
The Supreme Court reversed. The question presented was whether Congress' attempt to abrogate state sovereign immunity was valid. The Court considered this question under the two-part test articulated in Seminole Tribe:. The first part of the test was met easily, as the statute was very clear on the point. The second part of the test, however, was not met to the Court's satisfaction.
As noted above, current Supreme Court precedent admits only one source of constitutional authority from which Congress may abrogate state immunity: It was on this basis that College Savings Bank sought to have the statute upheld. The Court acknowledged that patents are property within the meaning of the Fourteenth Amendment. However, the Court held that the legislative enactment at issue in this case did not fall within Congress' Fourteenth Amendment power for several reasons. First, as the Court held in City of Boerne , Congress "must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.
Second, the Court recognized that patent infringement by a state is not a violation of the Fourteenth Amendment if the state provides a remedy, that is, due process. Third, the Court noted that "a state actor's negligent act that causes unintended injury to a person's property does not 'deprive' that person of property within the meaning of the Due Process Clause. This decision applied the general rule articulated in City of Boerne, and the high barriers erected by that application spelled almost certain doom for the CRCA, which is closely analogous to the PRCA that the Court struck down in Florida Prepaid.
In acknowledging that the legislative history of the PRCA did not meet the Court's newly articulated standards, Justice Stevens noted that:. Perhaps most importantly, the House requested that the Register of Copyrights prepare a study, which he [sic] described in his transmittal letter as, "a factual inquiry about enforcement of copyright against state governments. This report contains comments from industry groups, statistics, and legal analysis relating to copyright violations, actual and potential, by States. Arte Publico Press Chavez. The same result was reached in another Fifth Circuit case, Rodriguez v.
Texas Comm'n on the Arts , 58 in a brief opinion that presumably is based upon the same rationale as that circuit's decision in Chavez. Given the current Supreme Court precedent, it is difficult to find fault with the ruling in Chavez , and we believe that the CRCA most likely is now bad law. Copyright owners have but one arrow left in their quiver to prevent or deter infringement of their intellectual property rights by States.
That arrow is injunctive relief against particular employees of the State. Although the doctrine of state sovereign immunity has been dramatically strengthened in recent years, the Court has thus far retained the injunctive relief available under the reasoning of a case, Ex parte Young. And, an employee of a State is cloaked with the State's immunity only when acting within the scope of his duties. Therefore, an employee of a State who acts in violation of a valid federal law is not immune and may be enjoined from that activity. The Ex parte Young doctrine provides only limited relief, however, because it provides no compensation for the damages already inflicted upon a copyright owner due to past infringement by a State.
Moreover, given the Court's movement in recent years, one might question whether this doctrine will remain in force. The practical question that is begged by the legal analysis is: Given the legal structure that the Supreme Court has erected, one might very well expect the answer to be in the affirmative. And it may very well be so. Unfortunately, the extent of State infringements is largely unknown at this time, only a year after the decisions in Florida Prepaid , College Savings and Alden.
Information on infringements by States has not traditionally been collected, nor is it conveniently available from a single or few sources. The circuit courts have instead crafted widely divergent tests, incorporating different factors and considerations into their analyses. The Supreme Court has articulated a few rationales to guide lower courts, but even these rationales have proved ineffective in generating consistency or coherence among the lower courts.
Missing from the jurisprudential and scholarly dialogue is any developed appreciation for the role democratic processes and political accountability ought to play in the arm-of-the-state context.
The Court has endeavored to stress the importance of these mechanisms in its Eleventh Amendment jurisprudence generally, as both a justification for and a logical corollary of sovereign immunity, but the Court has only touched in passing on the importance of political accountability in its arm-of-the-state cases. Accordingly, courts should assess factors that meaningfully gauge these two elements and disregard those factors that do not. Case law may still produce facially inconsistent results where a type of entity may be recognized as an arm in one state but not in another depending on the particularities of state law.
And unless the Court adopts a single bright-line rule, the arm-of-the-state inquiry will inevitably require judges to engage in fact-intensive analyses involving case-by-case judgment calls. To make the case for political accountability in the arms context, Part I briefly surveys the development of the arm-of-the-state doctrine, showing how a doctrinal twist spiraled into jurisprudential contortion.
Then, Part II pulls the jurisprudence apart, teasing out the weaknesses inherent in the twin animating rationales the Court intended to guide the doctrine in its application. After diagnosing the problem inherent to the existing framework, Part III suggests a solution: Part IV suggests a possible framework that incorporates a political accountability rationale, exploring which factors would be relevant in a reconceived arm-of-the-state test.
In critique of present practices, Part V examines factors courts presently consider but that skew a political accountability-inspired arms analysis. Hartley, The Alden Trilogy: Praise and Protest , 23 Harv. Accordingly, the time is ripe for courts to begin taking political accountability seriously in Eleventh Amendment arm of the-state jurisprudence.
In general, the doctrine of sovereign immunity prevents the state from being sued against its will. Current jurisprudence holds that states may be sued by other states or by the federal government but that states are immune from suit by all private litigants.
In addition, Eleventh Amendment immunity protects states from suit both in federal court and in their own state courts under federally created claims. Though the Eleventh Amendment enshrines the doctrine of sovereign immunity as applied to the states, historically courts have interpreted this immunity to be broader than the literal words of the Eleventh Amendment.
Courts have recognized a few exceptions though: But for these few exceptions, states are generally immune from damages suits by private litigants both in federal court and under federally created claims. The doctrine of state sovereign immunity serves various policy goals. In addition to these explicit Court-articulated goals, commentators have argued that state sovereign immunity serves additional interests. The doctrine curbs judicial interference in state affairs, giving government officers greater discretion and allowing government to operate more efficiently.
The Supreme Court Sides with the States 3—4 Finally, because the actions of elected government officials theoretically reflect the will of the people, sovereign immunity furthers the interests of popular sovereignty by protecting state majoritarian policy preferences. Thus, courts and commentators alike have articulated a number of normative bases for why states ought to enjoy immunity from suit under federal law in our federal system.
Accordingly, in the Supreme Court first recognized, in Mt. The Court briefly considered whether a local public board of education in Ohio was entitled to state sovereign immunity in a suit by a fired school teacher. The Court considered the following to be relevant: But in another sense, both the language and legal theory of Mt.
Healthy made for a new twist. Prior cases where courts had found the state to be the real party in interest were cases in which the state itself—and its treasury—arguably was the intended target of the litigation. Healthy , U. While the basic rationale for conferring immunity upon arms of the state may seem intuitive, unfortunately, from its inception, the arm-of-the-state doctrine has lacked direction, coherence, and consistency. This has made possible the contradiction where a type of entity can be an arm of the state in one instance but not be an arm of the state in another instance, depending upon both the circuit test used and the applicable state laws governing the defendant entity.
In the wake of Mt. Healthy and an analytically similar decision two years later, Lake Country Estates, Inc. Tahoe Regional Planning Agency , 39 U. The Court determined that a bistate entity created jointly by California, Nevada, and Congress was not an arm of the state. In each case, the Court highlighted several traits of the entity in question, but the Court failed to indicate whether these traits constituted formal factors, whether its list of factors was exhaustive, or what such factors were intended to measure.
To be fair, perhaps the Court did not intend to delineate a systematic framework for its arms doctrine in these cases, instead hoping lower courts would develop it. The Court finally articulated a guiding rationale for its arms doctrine in Hess v. Port Authority Trans-Hudson Corp. It is unclear, for example, how the twin reasons function analytically in the arms inquiry.
Previous courts had considered a mix of factors in one analytical step to determine whether an entity was an arm of the state.
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The Hess court, in contrast, appeared to consider the twin reasons as a second stage of analysis after first considering various factors, which pointed in different directions. This would seem to be the obvious reading at first blush, 46 See, e. If this is the correct analytic reading though, it is unclear what rationale should guide the initial factor analysis prior to consideration of the twin reasons. Protecting state treasury and dignity interests may be the basis for state sovereign immunity generally, but what is the normative basis for determining what an arm of the state is?
What is the prototypical example of an arm of the state against which other entities can be compared, or are state arms inherently indefinable? Pahl Zinn, Note, Hess v. Port Authority Trans-Hudson Corporation: Erosion of the Eleventh Amendment , Detroit C. Circuit court decisions in the years since Hess have largely borne out this prediction. Even the circuits that have refashioned their arms tests in response to Hess have only done so facially, leaving their substantive analysis unchanged.
The decades since Mt. Healthy have produced the following: In responding to the disarray, instead of taking the present framework as a given, this Comment pulls it apart and identifies how the present framework has failed. While not purporting to offer a single definitive, infallible test, this Comment simply suggests how arm-of-the-state jurisprudence might be set on the right track by incorporating a rationale that has hitherto largely been ignored.
To begin that discussion, this Comment first explores the inherent flaws of the current arm-of-the-state jurisprudential framework. Healthy introduced the modern arm-of-the-state doctrine, federal courts had long barred suit where the court found a state to be the real party in interest in the litigation. Since the state is ordinarily immune from suit under the Eleventh Amendment, clever litigants might attempt to work around this obstacle by naming another individual or entity as the defendant rather than the state itself. In such cases where a monetary judgment would nonetheless inevitably draw from the state treasury, courts blocked these suits as well.
Typically, these real-party-in-interest suits named state government officials as the defendants, 60 E. Not all suits targeting the state were barred, though. Where a private litigant sued a state officer in his official capacity for injunctive relief, which effectively is still a suit against the state, courts held such suits did not run afoul of the Eleventh Amendment. The Ex parte Young doctrine does permit prospective enforcement of federal law against a state that may result in monetary expenditures from the state, but such expenditures are considered to have only an ancillary rather than a direct effect on the treasury.
The basis for differentiating between injunctive and damages suits against a state might seem unclear at first blush, but such differentiation is consistent with the historic basis for the Eleventh Amendment. After the Supreme Court interpreted Article III of the Constitution to permit a citizen of one state to bring a suit for damages against another state in Chisholm v. Georgia , 63 2 U. For a discussion of Chisholm and its historic backdrop, see William A. Chisholm was decided in when many states found themselves grappling with Revolutionary War debt, and many lawmakers feared that, as had the plaintiff in Chisholm , more creditors would sue cash strapped state governments to collect on war debts.
This historic context led Justice Ginsburg to conclude in Hess that the primary purpose of state sovereign immunity as embodied in the Eleventh Amendment is to protect state treasuries—and taxpayer dollars—from monetary judgments so that states might be able to administer their financial affairs without the insolvency risk that private suits threaten. Under this reading, the evil to be avoided under the Eleventh Amendment is not the possibility of any and all suits against states by private litigants but rather suits for damages.
This narrative would appear to provide the conceptual basis for the arm of the-state doctrine. While not explicitly using real-party-in-interest phraseology itself, the Mt. Healthy Court cited to a line of cases where an effort to protect the state from monetary judgments was the controlling rationale.
Healthy and its progeny began to consider a variety of nonfinancial liability factors, 69 See Needle, supra note 36, at Accordingly, for decades lower courts have assigned the most weight in their arms analyses to factors that tracked the treasury-protection rationale. Conceptually, analysis under the arm of the state doctrine would appear to be straightforward: But there are two problems with making a real-party-in-interest analysis dispositive.
First, whether the state would be the real party in interest in a suit against a given entity is not necessarily an either—or calculation. Focusing only on the narrow question of whether the state would directly pay for a judgment against an entity 73 E.
There are yet other ways in which a state might be financially implicated by a suit against a lesser entity. Under a broader definition of state funding that includes appropriations that an entity receives from the state 77 E. Compare Holz , F.
Eleventh Amendment to the United States Constitution
Air Pollution Control Dist. But even if we only consider as relevant whether a state is legally responsible as opposed to practically responsible for a judgment imposed against an entity, a wide conception of legal responsibility may implicate a state treasury to various degrees. In Regents of the University of California v. Some courts have read Regents to mean that legal liability but not practical liability matters in the analysis, e. While Regents may have foreclosed practical liability as a viable basis for Eleventh Amendment immunity, courts have construed legal liability to mean a number of different things beyond a literal reading that the state must be on the hook to directly pay the specific judgment against a given entity.
The discussion up to this point presupposes that the treasury-protection rationale—championed by Hess —is the normative basis for Eleventh Amendment sovereign immunity, let alone the arm-of-the-state doctrine, but many jurists and scholars debate that premise. A competing historic and theoretical reading of Eleventh Amendment sovereign immunity is that such immunity is intended to protect the states from suits in general, lest their sovereign dignity be affronted.
Smith, States as Nations: Dignity in Cross-Doctrinal Perspective , 89 Va. The Court acknowledged this second rationale in Hess , 85 U. See Scott Dodson, Dignity: See Hess , U. If this question has such overriding force, there is really no balance at all. If we consider the various factors courts consider in their arms analyses, we could simply decide that whereas financial factors track the treasury-protection rationale, nonfinancial factors as a matter of definition track the dignity protection rationale.
Indeed, courts have done both in their arms analyses. Such reasoning is conclusory. Not only is the Hess twin-reasons framework problematic in theory, but as lower courts have applied the framework, it has produced results that seem at odds with Mt.
Presumably, Hess can explain why a political subdivision like a city or county should not be considered an arm of the state: City of Pittsburgh, U. Yet the Eleventh Circuit has appeared to do what the Supreme Court has refused to do by extending sovereign immunity protection to county health departments and county sheriffs.
This reasoning would warrant a conferral of sovereign immunity on political subdivisions only in certain contexts, but the Supreme Court has appeared to insist that political subdivisions are precluded from sovereign immunity categorically. At least within some courts, though, county-level entities can be considered arms of the state. Thus in some cases, it seems the arm of the state doctrine has morphed into a fingertip-of-the-state doctrine.
At the other extreme, the Seventh Circuit has held that a state lottery commission was not an arm of the state.
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The State Lottery Commission of Indiana produces substantial revenue for the state rather than receiving state revenue , and presumably the commission was equipped to pay a monetary judgment itself rather than having to pass a judgment off to the state. In so concluding, the Seventh Circuit appealed to language in Hess demanding that revenue generating entities with no financial reliance on the state not be considered immune under the Eleventh Amendment. But again, intuitively it would seem that a state commission created by state law exercising a function statewide on behalf of the state would be an arm of the state.
On January 8, , approximately three years after the Eleventh Amendment's adoption, President John Adams stated in a message to Congress that the Eleventh Amendment had been ratified by the necessary number of States and that it was now a part of the Constitution of the United States. The resolution is currently pending in a committee of the legislature's lower chamber, the New Jersey General Assembly.
Virginia , 3 U. The amendment's text does not mention suits brought against a state by its own citizens. However, in Hans v. Louisiana , U. As Justice Anthony Kennedy later stated in Alden v. Maine , U. Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers.
However, Justice David Souter , writing for a four-Justice dissent in Alden , said the states surrendered their sovereign immunity when they ratified the Constitution. He read the amendment's text as reflecting a narrow form of sovereign immunity that limited only the diversity jurisdiction of the federal courts. He concluded that neither the Eleventh Amendment in particular nor the Constitution in general insulates the states from suits by individuals.
Eleventh Amendment immunity also protects states from lawsuits by foreign states in federal courts. Although the Eleventh Amendment grants immunity to states from suit for money damages or equitable relief without their consent, in Ex parte Young , U. Bitzer , U. In Central Virginia Community College v.
Katz , U. Board of Regents of Univ.