Citizen suits against states: The exclusive jurisdiction dilemma

Journal of the Copyright Society of the U.S.A.

Volumn 45, Issue 1, 1997, Pages 63-116

  Glauberman, Scott P ^a  

^a NONE

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EID: 0039506157     PISSN: 08863520     EISSN: None     Source Type: Journal    
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References (496)

1. 116 S. Ct. 1114 (1996).
2. U.S. CONST. amend XI.
3. See, e.g., Henry Paul Monaghan, The Supreme Court, 1995 Term - Comment: The Sovereign Immunity "Exception", 110 HARV. L. REV. 102, 103 (1996) ("The origin and development of the doctrine of state sovereign immunity have been presented many times.").
4. Historians quibble over the formal effective date of the Eleventh Amendment. The traditional view is that the Amendment became part of the Constitution in 1798, see RICHARD H. FALLON, JR. ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM xcii (4th ed. 1996) (listing the effective date as 1798) [hereinafter HART & WECHSLER], when President John Adams sent a message to Congress declaring its approval, THE OXFORD COMPANION TO THE SUPREME COURT 250-51 (Kermit L. Hall ed., 1992) [hereinafter THE OXFORD COMPANION]. Another view, recognizing that under Article V the President has no role in the amendment process, see Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 382 & n.* (1798) (explicitly declaring the Eleventh Amendment "constitutionally adopted" in the absence of presidential action), is that the Amendment became effective in 1795 .
5. Historians quibble over the formal effective date of the Eleventh Amendment. The traditional view is that the Amendment became part of the Constitution in 1798, see RICHARD H. FALLON, JR. ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM xcii (4th ed. 1996) (listing the effective date as 1798) [hereinafter HART & WECHSLER], when President John Adams sent a message to Congress declaring its approval, THE OXFORD COMPANION TO THE SUPREME COURT 250-51 (Kermit L. Hall ed., 1992) [hereinafter THE OXFORD COMPANION]. Another view, recognizing that under Article V the President has no role in the amendment process, see Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 382 & n.* (1798) (explicitly declaring the Eleventh Amendment "constitutionally adopted" in the absence of presidential action), is that the Amendment became effective in 1795 .
6. Historians quibble over the formal effective date of the Eleventh Amendment. The traditional view is that the Amendment became part of the Constitution in 1798, see RICHARD H. FALLON, JR. ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM xcii (4th ed. 1996) (listing the effective date as 1798) [hereinafter HART & WECHSLER], when President John Adams sent a message to Congress declaring its approval, THE OXFORD COMPANION TO THE SUPREME COURT 250-51 (Kermit L. Hall ed., 1992) [hereinafter THE OXFORD COMPANION]. Another view, recognizing that under Article V the President has no role in the amendment process, see Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 382 & n.* (1798) (explicitly declaring the Eleventh Amendment "constitutionally adopted" in the absence of presidential action), is that the Amendment became effective in 1795 .
7. 2 U.S. (2 Dall.) 419 (1793). The others are the Fourteenth Amendment and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), the Sixteenth Amendment and Pollack v. Farmers' Loan and Trust Co., 158 U.S. 601 (1895), and the Twenty-Sixth Amendment and Oregon v. Mitchell, 400 U.S. 112 (1970).
8. 2 U.S. (2 Dall.) 419 (1793). The others are the Fourteenth Amendment and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), the Sixteenth Amendment and Pollack v. Farmers' Loan and Trust Co., 158 U.S. 601 (1895), and the Twenty-Sixth Amendment and Oregon v. Mitchell, 400 U.S. 112 (1970).
9. 2 U.S. (2 Dall.) 419 (1793). The others are the Fourteenth Amendment and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), the Sixteenth Amendment and Pollack v. Farmers' Loan and Trust Co., 158 U.S. 601 (1895), and the Twenty-Sixth Amendment and Oregon v. Mitchell, 400 U.S. 112 (1970).
10. 2 U.S. (2 Dall.) 419 (1793). The others are the Fourteenth Amendment and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), the Sixteenth Amendment and Pollack v. Farmers' Loan and Trust Co., 158 U.S. 601 (1895), and the Twenty-Sixth Amendment and Oregon v. Mitchell, 400 U.S. 112 (1970).
11. Strangely, then-Attorney General of the United States Edmund Randolph appeared personally on Chisholm's behalf, see Chisholm, 2 U.S. at 419, lending new irony to the phrase "private attorney general." See generally Farrar v. Hobby, 506 U.S. 103, 122 (1992) (O'Connor, J., concurring) (discussing private litigants "vindicati[ng] . . . important rights" as "private attorney[s] general").
12. Strangely, then-Attorney General of the United States Edmund Randolph appeared personally on Chisholm's behalf, see Chisholm, 2 U.S. at 419, lending new irony to the phrase "private attorney general." See generally Farrar v. Hobby, 506 U.S. 103, 122 (1992) (O'Connor, J., concurring) (discussing private litigants "vindicati[ng] . . . important rights" as "private attorney[s] general").
13. See Chisholm, 2 U.S. at 419-29.
14. During the time of Chief Justice Jay, the Court employed the English practice of issuing opinions "seriatim," meaning each member of the Court wrote separately. See THE OXFORD COMPANION, supra note 4, at 780. Chief Justice Marshall, in an attempt to enhance the Court's influence, instituted the practice of issuing an "Opinion of the Court" so that the Court could speak with one voice. See id. This remains a concern even today due to the proliferation of separate opinions. See id. ; BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 366 (1979) ("A single opinion [in the Nixon tapes case] seemed within reach. That would be the greatest deterrent to a defiant President.").
15. During the time of Chief Justice Jay, the Court employed the English practice of issuing opinions "seriatim," meaning each member of the Court wrote separately. See THE OXFORD COMPANION, supra note 4, at 780. Chief Justice Marshall, in an attempt to enhance the Court's influence, instituted the practice of issuing an "Opinion of the Court" so that the Court could speak with one voice. See id. This remains a concern even today due to the proliferation of separate opinions. See id. ; BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 366 (1979) ("A single opinion [in the Nixon tapes case] seemed within reach. That would be the greatest deterrent to a defiant President.").
16. During the time of Chief Justice Jay, the Court employed the English practice of issuing opinions "seriatim," meaning each member of the Court wrote separately. See THE OXFORD COMPANION, supra note 4, at 780. Chief Justice Marshall, in an attempt to enhance the Court's influence, instituted the practice of issuing an "Opinion of the Court" so that the Court could speak with one voice. See id. This remains a concern even today due to the proliferation of separate opinions. See id. ; BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 366 (1979) ("A single opinion [in the Nixon tapes case] seemed within reach. That would be the greatest deterrent to a defiant President.").
17. During the time of Chief Justice Jay, the Court employed the English practice of issuing opinions "seriatim," meaning each member of the Court wrote separately. See THE OXFORD COMPANION, supra note 4, at 780. Chief Justice Marshall, in an attempt to enhance the Court's influence, instituted the practice of issuing an "Opinion of the Court" so that the Court could speak with one voice. See id. This remains a concern even today due to the proliferation of separate opinions. See id. ; BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 366 (1979) ("A single opinion [in the Nixon tapes case] seemed within reach. That would be the greatest deterrent to a defiant President.").
18. Chisholm, 2 U.S. at 450 (opinion of Blair, J.); id. at 466 (opinion of Wilson, J.); id. at 467 (opinion of Cushing, J.); id. at 475 (opinion of Jay, C.J.); see also ERWIN CHEMERINSKY, FEDERAL JURISDICTION 373 (2d ed. 1994) (describing the "impeccable credentials" of Chisholm's attorney and of the justices in the majority: Attorney General Randolph, Justice Blair, and Justice Wilson were delegates to the Constitutional Convention; Justice Cushing presided over the Massachusetts ratification convention; and Chief Justice Jay was a delegate to the New York ratification convention and was one of the authors of the Federalist Papers).
19. Chisholm, 2 U.S. at 450 (opinion of Blair, J.); id. at 466 (opinion of Wilson, J.); id. at 467 (opinion of Cushing, J.); id. at 475 (opinion of Jay, C.J.); see also ERWIN CHEMERINSKY, FEDERAL JURISDICTION 373 (2d ed. 1994) (describing the "impeccable credentials" of Chisholm's attorney and of the justices in the majority: Attorney General Randolph, Justice Blair, and Justice Wilson were delegates to the Constitutional Convention; Justice Cushing presided over the Massachusetts ratification convention; and Chief Justice Jay was a delegate to the New York ratification convention and was one of the authors of the Federalist Papers).
20. Chisholm, 2 U.S. at 450 (opinion of Blair, J.); id. at 466 (opinion of Wilson, J.); id. at 467 (opinion of Cushing, J.); id. at 475 (opinion of Jay, C.J.); see also ERWIN CHEMERINSKY, FEDERAL JURISDICTION 373 (2d ed. 1994) (describing the "impeccable credentials" of Chisholm's attorney and of the justices in the majority: Attorney General Randolph, Justice Blair, and Justice Wilson were delegates to the Constitutional Convention; Justice Cushing presided over the Massachusetts ratification convention; and Chief Justice Jay was a delegate to the New York ratification convention and was one of the authors of the Federalist Papers).
21. Chisholm, 2 U.S. at 450 (opinion of Blair, J.); id. at 466 (opinion of Wilson, J.); id. at 467 (opinion of Cushing, J.); id. at 475 (opinion of Jay, C.J.); see also ERWIN CHEMERINSKY, FEDERAL JURISDICTION 373 (2d ed. 1994) (describing the "impeccable credentials" of Chisholm's attorney and of the justices in the majority: Attorney General Randolph, Justice Blair, and Justice Wilson were delegates to the Constitutional Convention; Justice Cushing presided over the Massachusetts ratification convention; and Chief Justice Jay was a delegate to the New York ratification convention and was one of the authors of the Federalist Papers).
22. Chisholm, 2 U.S. at 450 (opinion of Blair, J.); id. at 466 (opinion of Wilson, J.); id. at 467 (opinion of Cushing, J.); id. at 475 (opinion of Jay, C.J.); see also ERWIN CHEMERINSKY, FEDERAL JURISDICTION 373 (2d ed. 1994) (describing the "impeccable credentials" of Chisholm's attorney and of the justices in the majority: Attorney General Randolph, Justice Blair, and Justice Wilson were delegates to the Constitutional Convention; Justice Cushing presided over the Massachusetts ratification convention; and Chief Justice Jay was a delegate to the New York ratification convention and was one of the authors of the Federalist Papers).
23. See Chisholm, 2 U.S. at 455 (opinion of Wilson, J.) ("Let a State be considered as subordinate to the People. . . ."); id. at 471 (opinion of Jay, C.J.) ("the residuary sovereignty of each State [is] in the people of each State").
24. See Chisholm, 2 U.S. at 455 (opinion of Wilson, J.) ("Let a State be considered as subordinate to the People. . . ."); id. at 471 (opinion of Jay, C.J.) ("the residuary sovereignty of each State [is] in the people of each State").
25. See id. at 449 (opinion of Iredell, J.).
26. Id.
27. See CHEMERINSKY, supra note 9, at 374.
28. See id. (stating that this is the "consensus among historians"); see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 264 (1985) (Brennan, J., dissenting) ("Virtually all of the comments [at the state ratification conventions] were addressed to the problem created by state debts that predated the Constitution. . . .").
29. U.S. CONST. amend. XI.
30. See, e.g., John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983) (espousing and explaining this view).
31. See Akhil Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. CHI. L. REV. 443, 478-88 (1989) (discussing the distinction).
32. This textual interpretation is quite expansive and may in the end fall victim to its own logic. The diversity theory - that the Eleventh Amendment only provides states with immunity from a suit arising under one of the clauses of Article III, § 2, the one extending "The judicial Power . . . to Controversies . . . between a State and Citizens of another State," and that a state's invocation of sovereign immunity cannot bar a suit authorized by any other clause, such as the one extending "The judicial Power to all Cases . . . arising under . . . the Laws of the United States" - necessarily implies that the other clauses of Article III, also untouched by the Eleventh or any other amendment, should have a similar effect, leading to the incredible conclusion that the clause of Article III, § 2, which extends "The judicial Power . . . to Controversies to which the United States shall be a Party" denied the United States itself sovereign immunity from suit. See Welch v. Texas Dep't of Highways and Public Transp., 483 U.S. 468, 485 n.17 (1987). This is not, of course, consistent with the Court's understanding of Article III. See, e.g., California v. Arizona, 440 U.S. 59, 61 (1979) ("It is settled that the United States must give its consent to be sued even when one of the States invokes this Court's original jurisdiction. . . .").
33. This textual interpretation is quite expansive and may in the end fall victim to its own logic. The diversity theory - that the Eleventh Amendment only provides states with immunity from a suit arising under one of the clauses of Article III, § 2, the one extending "The judicial Power . . . to Controversies . . . between a State and Citizens of another State," and that a state's invocation of sovereign immunity cannot bar a suit authorized by any other clause, such as the one extending "The judicial Power to all Cases . . . arising under . . . the Laws of the United States" - necessarily implies that the other clauses of Article III, also untouched by the Eleventh or any other amendment, should have a similar effect, leading to the incredible conclusion that the clause of Article III, § 2, which extends "The judicial Power . . . to Controversies to which the United States shall be a Party" denied the United States itself sovereign immunity from suit. See Welch v. Texas Dep't of Highways and Public Transp., 483 U.S. 468, 485 n.17 (1987). This is not, of course, consistent with the Court's understanding of Article III. See, e.g., California v. Arizona, 440 U.S. 59, 61 (1979) ("It is settled that the United States must give its consent to be sued even when one of the States invokes this Court's original jurisdiction. . . .").
34. The Supreme Court has, however, extended the coverage of the Eleventh Amendment to admiralty suits. See In re New York, 256 U.S. 490 (1921).
35. See, e.g., Atascadero, 473 U.S. 234 (Justices Brennan, Marshall, Blackmun, and Stevens); Seminole Tribe, 116 S. Ct. 1114 (Justices Souter, Ginsburg, Breyer, and Stevens).
36. See, e.g., Atascadero, 473 U.S. 234 (Justices Brennan, Marshall, Blackmun, and Stevens); Seminole Tribe, 116 S. Ct. 1114 (Justices Souter, Ginsburg, Breyer, and Stevens).
37. See Atascadero, 473 U.S. at 259-288 (Brennan, J., dissenting).
38. 19 U.S. (6 Wheat.) 264 (1821).
39. Atascadero, 473 U.S. at 294 (Brennan, J., dissenting).
40. Cohens, 19 U.S. at 412. Justice Brennan acknowledged that this "alternative holding" offered by Chief Justice Marshall "is of course consistent with the view that the Eleventh Amendment bars federal-question jurisdiction over suits that are prosecuted against States by noncitizens . . . but does not bar federal[-question] jurisdiction over suits by citizens of the State being sued." Atascadero, 473 U.S. at 295, 296 n.51 (Brennan, J., dissenting). In addition, the Court's decision in Hans v. Louisiana, 134 U.S. 1 (1890) , makes clear that the Court considered Chief Justice Marshall's statement "extrajudicial." Id. at 20.
41. Cohens, 19 U.S. at 412. Justice Brennan acknowledged that this "alternative holding" offered by Chief Justice Marshall "is of course consistent with the view that the Eleventh Amendment bars federal-question jurisdiction over suits that are prosecuted against States by noncitizens . . . but does not bar federal[-question] jurisdiction over suits by citizens of the State being sued." Atascadero, 473 U.S. at 295, 296 n.51 (Brennan, J., dissenting). In addition, the Court's decision in Hans v. Louisiana, 134 U.S. 1 (1890) , makes clear that the Court considered Chief Justice Marshall's statement "extrajudicial." Id. at 20.
42. Cohens, 19 U.S. at 412. Justice Brennan acknowledged that this "alternative holding" offered by Chief Justice Marshall "is of course consistent with the view that the Eleventh Amendment bars federal-question jurisdiction over suits that are prosecuted against States by noncitizens . . . but does not bar federal[-question] jurisdiction over suits by citizens of the State being sued." Atascadero, 473 U.S. at 295, 296 n.51 (Brennan, J., dissenting). In addition, the Court's decision in Hans v. Louisiana, 134 U.S. 1 (1890) , makes clear that the Court considered Chief Justice Marshall's statement "extrajudicial." Id. at 20.
43. Cohens, 19 U.S. at 412. Justice Brennan acknowledged that this "alternative holding" offered by Chief Justice Marshall "is of course consistent with the view that the Eleventh Amendment bars federal-question jurisdiction over suits that are prosecuted against States by noncitizens . . . but does not bar federal[-question] jurisdiction over suits by citizens of the State being sued." Atascadero, 473 U.S. at 295, 296 n.51 (Brennan, J., dissenting). In addition, the Court's decision in Hans v. Louisiana, 134 U.S. 1 (1890) , makes clear that the Court considered Chief Justice Marshall's statement "extrajudicial." Id. at 20.
44. See William P. Marshall, The Diversity of the Eleventh Amendment: A Critical Evaluation, 102 HARV. L. REV. 1372, 1381-1395 (1989) (cataloging and rejecting historical arguments).
45. Judiciary Act of 1875, ch. 137, § 1, 18 Stat. 470.
46. The fact that Congress did not grant the federal courts general federal question jurisdiction until 1875 is subject, of course, to the opposite spin: "Since Congress had not granted federal-question jurisdiction to federal courts prior to the Amendment's ratification, the Amendment was not intended to restrict that type of jurisdiction." Welch, 483 U.S. at 510 (Brennan, J., dissenting).
47. See Marshall, supra note 25, at 1396 ("[P]rotecting state treasuries against any federal court intrusion regardless of the basis of the underlying claim was the core concern that the eleventh amendment was intended to reflect."). The Amendment has, however, been held applicable to lawsuits which would not result in any expenditure of state funds. See Regents of the Univ. of California v. Doe, 117 S. Ct. 900, 905 (1997) (holding that indemnification did not remove state agency's Eleventh Amendment immunity from suit); Seminole Tribe, 116 S. Ct. at 1124 ("[T]he type of relief sought is irrelevant to whether Congress has power to abrogate States' immunity.").
48. See Marshall, supra note 25, at 1396 ("[P]rotecting state treasuries against any federal court intrusion regardless of the basis of the underlying claim was the core concern that the eleventh amendment was intended to reflect."). The Amendment has, however, been held applicable to lawsuits which would not result in any expenditure of state funds. See Regents of the Univ. of California v. Doe, 117 S. Ct. 900, 905 (1997) (holding that indemnification did not remove state agency's Eleventh Amendment immunity from suit); Seminole Tribe, 116 S. Ct. at 1124 ("[T]he type of relief sought is irrelevant to whether Congress has power to abrogate States' immunity.").
49. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); see also Idaho v. Coeur d'Alene Tribe of Idaho, 117 S. Ct. 2028, 2033 (1997) (stating that the Eleventh Amendment protects the "dignity and respect afforded a State"). Professor Monaghan rightly characterized this sentiment - "the idea that a state, an utterly abstract entity, has feelings about being sued when its highest officials are regularly so sued," see notes 93-115 and accompany text - as "surely strain[ing] credulity." Monaghan, supra note 3, at 132.
50. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); see also Idaho v. Coeur d'Alene Tribe of Idaho, 117 S. Ct. 2028, 2033 (1997) (stating that the Eleventh Amendment protects the "dignity and respect afforded a State"). Professor Monaghan rightly characterized this sentiment - "the idea that a state, an utterly abstract entity, has feelings about being sued when its highest officials are regularly so sued," see notes 93-115 and accompany text - as "surely strain[ing] credulity." Monaghan, supra note 3, at 132.
51. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); see also Idaho v. Coeur d'Alene Tribe of Idaho, 117 S. Ct. 2028, 2033 (1997) (stating that the Eleventh Amendment protects the "dignity and respect afforded a State"). Professor Monaghan rightly characterized this sentiment - "the idea that a state, an utterly abstract entity, has feelings about being sued when its highest officials are regularly so sued," see notes 93-115 and accompany text - as "surely strain[ing] credulity." Monaghan, supra note 3, at 132.
52. See, e.g., Coeur d'Alene, 117 S. Ct. at 2033; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120 (1984) (stating that the diversity interpretation is "an erroneous view").
53. See, e.g., Coeur d'Alene, 117 S. Ct. at 2033; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120 (1984) (stating that the diversity interpretation is "an erroneous view").
54. See Seminole Tribe, 116 S. Ct. at 1146 (Souter, J., dissenting) ("[T]he Eleventh Amendment . . . changed the result in Chisholm . . . by eliminating citizen-state diversity jurisdiction over cases with state defendants.").
55. Hans, 134 U.S. at 11.
56. Id. The reading of this language as a jurisdictional limitation also compelled the Court, immediately following the adoption of the Amendment, to dismiss all pending claims which would violate it, as the federal courts no longer had jurisdiction to hear them. See id. (citing Hollingsworth, 3 U.S. 378).
57. Id. The reading of this language as a jurisdictional limitation also compelled the Court, immediately following the adoption of the Amendment, to dismiss all pending claims which would violate it, as the federal courts no longer had jurisdiction to hear them. See id. (citing Hollingsworth, 3 U.S. 378).
58. Id. The reading of this language as a jurisdictional limitation also compelled the Court, immediately following the adoption of the Amendment, to dismiss all pending claims which would violate it, as the federal courts no longer had jurisdiction to hear them. See id. (citing Hollingsworth, 3 U.S. 378).
59. Id. at 10. An adherent to the diversity view would likely here object that the Court's hypothetical presents a straw man, since under the "proper" reading of the Amendment, the Court should allow any citizen to sue any state when raising a federal question; thus no anomaly results.
60. Principality of Monaco v. Mississippi, 292 U.S. 313, 323 (1934); see also New York, 256 U.S. at 497 ("[I]t has become established by repeated decisions of this Court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties without consent given . . . because of the fundamental rule of which the Amendment is but an exemplification.").
61. Principality of Monaco v. Mississippi, 292 U.S. 313, 323 (1934); see also New York, 256 U.S. at 497 ("[I]t has become established by repeated decisions of this Court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties without consent given . . . because of the fundamental rule of which the Amendment is but an exemplification.").
62. Seminole Tribe, 116 S. Ct. at 1131 n.14 ("[T]his Court is empowered to review a question of federal law arising from a state court decision where a State has consented to suit.") (citing Cohens, 19 U.S. 264). Hans contains even stronger statements along this line: "The suability of a state, without its consent, was a thing unknown to the law. . . . 'It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission.'" 134 U.S. at 16, 17 (quoting Beers v. Arkansas, 61 U.S. (20 How.) 527, 529 (1857)).
63. Seminole Tribe, 116 S. Ct. at 1131 n.14 ("[T]his Court is empowered to review a question of federal law arising from a state court decision where a State has consented to suit.") (citing Cohens, 19 U.S. 264). Hans contains even stronger statements along this line: "The suability of a state, without its consent, was a thing unknown to the law. . . . 'It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission.'" 134 U.S. at 16, 17 (quoting Beers v. Arkansas, 61 U.S. (20 How.) 527, 529 (1857)).
64. Seminole Tribe, 116 S. Ct. at 1131 n.14 ("[T]his Court is empowered to review a question of federal law arising from a state court decision where a State has consented to suit.") (citing Cohens, 19 U.S. 264). Hans contains even stronger statements along this line: "The suability of a state, without its consent, was a thing unknown to the law. . . . 'It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission.'" 134 U.S. at 16, 17 (quoting Beers v. Arkansas, 61 U.S. (20 How.) 527, 529 (1857)).
65. Seminole Tribe, 116 S. Ct. at 1131 n.14 ("[T]his Court is empowered to review a question of federal law arising from a state court decision where a State has consented to suit.") (citing Cohens, 19 U.S. 264). Hans contains even stronger statements along this line: "The suability of a state, without its consent, was a thing unknown to the law. . . . 'It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission.'" 134 U.S. at 16, 17 (quoting Beers v. Arkansas, 61 U.S. (20 How.) 527, 529 (1857)).
66. See infra notes 297-321 and accompanying text.
67. See Hans, 134 U.S. at 20; Atascadero, 473 U.S. at 238.
68. See Hans, 134 U.S. at 20; Atascadero, 473 U.S. at 238.
69. Pennsylvania v. Union Gas, 491 U.S. 1, 26 (1989) (Stevens, J., concurring) (citing cases). Then again, given that this limitation on jurisdiction is sovereignty based, it may not seem so unusual that the consent of the sovereign could eliminate the jurisdictional bar, taking this outside the realm of ordinary jurisdiction and waiver rules. See generally Coeur d'Alene, 117 S. Ct. at 2033 ("The Amendment, in other words, enacts a sovereign immunity from suit, rather than a nonwaivable limit on the federal judiciary's subject-matter jurisdiction.") Put a slightly different way, perhaps in light of its history, Eleventh Amendment immunity should be viewed as more akin to a personal jurisdiction bar - a protection of a party which may be waived by it - than a subject matter jurisdiction bar - an absolute rule governing a court's power to hear a case - for these purposes.
70. Pennsylvania v. Union Gas, 491 U.S. 1, 26 (1989) (Stevens, J., concurring) (citing cases). Then again, given that this limitation on jurisdiction is sovereignty based, it may not seem so unusual that the consent of the sovereign could eliminate the jurisdictional bar, taking this outside the realm of ordinary jurisdiction and waiver rules. See generally Coeur d'Alene, 117 S. Ct. at 2033 ("The Amendment, in other words, enacts a sovereign immunity from suit, rather than a nonwaivable limit on the federal judiciary's subject-matter jurisdiction.") Put a slightly different way, perhaps in light of its history, Eleventh Amendment immunity should be viewed as more akin to a personal jurisdiction bar - a protection of a party which may be waived by it - than a subject matter jurisdiction bar - an absolute rule governing a court's power to hear a case - for these purposes.
71. See Patsy v. Board of Regents of Florida, 457 U.S. 496, 516 n.19 (1982).
72. See, e.g., CHEMERINSKY, supra note 9, at 250 n.10 (citing Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908) (Supreme Court raising an objection to its own jurisdiction)).
73. See, e.g., CHEMERINSKY, supra note 9, at 250 n.10 (citing Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908) (Supreme Court raising an objection to its own jurisdiction)).
74. See, e.g., Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1, 104 (1988).
75. See CHEMERINSKY, supra note 9, at 378.
76. Ashton v. Cameron County Water Improvement Dist., 298 U.S. 513, 531 (1936).
77. See CHEMERINSKY, supra note 9, at 379. But see supra note 39.
78. Only when it strikes a statute as violative of the so-called Dormant Commerce Clause is the Court willing to indulge in this style of constitutional decision-making, allowing Congress to permit the states to regulate in an area which the Court found constitutionally reserved to Congress. The Eleventh Amendment, however, stands in a position different than that of the Dormant Commerce Clause. First, the textual basis for the Dormant Commerce Clause is weak or even nonexistent. See Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 115 S. Ct. 1331, 1346 (Scalia, J., concurring in the judgment) ("That seems to me the most we can demand to certify compliance with the 'negative Commerce Clause' - which is 'negative' not only because it negates state regulation of commerce, but also because it does not appear in the Constitution."). Second, the Dormant Commerce Clause is a protection of Congress's power while the Eleventh Amendment is a protection of state power. It is thus not surprising that the Court allows Congress to waive the former but not the latter.
79. Congress may abrogate state immunity only when acting pursuant to Section Five of the Fourteenth Amendment. See infra notes 49-52 and accompanying text.
80. See CHEMERINSKY, supra note 9, at 378.
81. 427 U.S. 445, 453 (1976).
82. Id. at 455.
83. See, e.g., Hutto v. Finney, 437 U.S. 678, 698 n.31 (1978); Gregory v. Ashcroft, 501 U.S. 452, 468 (1991) ("By its terms, the Fourteenth Amendment contemplates interference with state authority. . . .").
84. See, e.g., Hutto v. Finney, 437 U.S. 678, 698 n.31 (1978); Gregory v. Ashcroft, 501 U.S. 452, 468 (1991) ("By its terms, the Fourteenth Amendment contemplates interference with state authority. . . .").
85. See, e.g., Atascadero, 473 U.S. at 246. The hope in imposing clear statement rules, now a common device for "enforcing" federalism, see e.g., Gregory, 501 U.S. at 461 (applying the clear statement rule in the Tenth Amendment context), is that they will result in explicit and meaningful congressional deliberation. As more than one commentator has noted, however, Congress may easily placate the rule without satisfying its deeper motivations. See, e.g., Carol F. Lee, The Political Safeguards of Federalism? Congressional Responses to Supreme Court Decisions on State and Local Liability, 20 URB. LAW. 301, 329 (stating that the most "striking" feature of the congressional response to Atascadero's clear statement requirement was "the lack of serious discussion or debate on whether state immunity should be abrogated").
86. See, e.g., Atascadero, 473 U.S. at 246. The hope in imposing clear statement rules, now a common device for "enforcing" federalism, see e.g., Gregory, 501 U.S. at 461 (applying the clear statement rule in the Tenth Amendment context), is that they will result in explicit and meaningful congressional deliberation. As more than one commentator has noted, however, Congress may easily placate the rule without satisfying its deeper motivations. See, e.g., Carol F. Lee, The Political Safeguards of Federalism? Congressional Responses to Supreme Court Decisions on State and Local Liability, 20 URB. LAW. 301, 329 (stating that the most "striking" feature of the congressional response to Atascadero's clear statement requirement was "the lack of serious discussion or debate on whether state immunity should be abrogated").
87. See, e.g., Atascadero, 473 U.S. at 246. The hope in imposing clear statement rules, now a common device for "enforcing" federalism, see e.g., Gregory, 501 U.S. at 461 (applying the clear statement rule in the Tenth Amendment context), is that they will result in explicit and meaningful congressional deliberation. As more than one commentator has noted, however, Congress may easily placate the rule without satisfying its deeper motivations. See, e.g., Carol F. Lee, The Political Safeguards of Federalism? Congressional Responses to Supreme Court Decisions on State and Local Liability, 20 URB. LAW. 301, 329 (stating that the most "striking" feature of the congressional response to Atascadero's clear statement requirement was "the lack of serious discussion or debate on whether state immunity should be abrogated").
88. 491 U.S. 1 (1989) (plurality opinion).
89. See id. at 16 (plurality opinion).
90. Id. at 16 (plurality opinion). Justice Scalia, in a separate opinion, objected to the plurality's analogy to Fitzpatrick by arguing that Fitzpatrick merely held that the Eleventh Amendment was modified by the Fourteenth, a "later Amendment," which was not true of the "antecedent provisions of the Constitution" such as the Commerce Clause. Id. at 42 (Scalia, J., concurring in part and dissenting in part). The plurality responded that the "principle embodied in the Eleventh Amendment" predated the Commerce Clause and was thus modified by it. Id. at 17 (plurality opinion). The Seminole Tribe majority adopted Justice Scalia's position. See Seminole Tribe, 116 S. Ct. at 1128. But cf. HART & WECHSLER (Supp. 1996), supra note 4, at 44 (citing 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1514-15 (1996) (holding that the authority the Twenty-First Amendment conferred on the states did not "diminish the force" of the First Amendment's restrictions on state action)).
91. Id. at 16 (plurality opinion). Justice Scalia, in a separate opinion, objected to the plurality's analogy to Fitzpatrick by arguing that Fitzpatrick merely held that the Eleventh Amendment was modified by the Fourteenth, a "later Amendment," which was not true of the "antecedent provisions of the Constitution" such as the Commerce Clause. Id. at 42 (Scalia, J., concurring in part and dissenting in part). The plurality responded that the "principle embodied in the Eleventh Amendment" predated the Commerce Clause and was thus modified by it. Id. at 17 (plurality opinion). The Seminole Tribe majority adopted Justice Scalia's position. See Seminole Tribe, 116 S. Ct. at 1128. But cf. HART & WECHSLER (Supp. 1996), supra note 4, at 44 (citing 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1514-15 (1996) (holding that the authority the Twenty-First Amendment conferred on the states did not "diminish the force" of the First Amendment's restrictions on state action)).
92. Id. at 16 (plurality opinion). Justice Scalia, in a separate opinion, objected to the plurality's analogy to Fitzpatrick by arguing that Fitzpatrick merely held that the Eleventh Amendment was modified by the Fourteenth, a "later Amendment," which was not true of the "antecedent provisions of the Constitution" such as the Commerce Clause. Id. at 42 (Scalia, J., concurring in part and dissenting in part). The plurality responded that the "principle embodied in the Eleventh Amendment" predated the Commerce Clause and was thus modified by it. Id. at 17 (plurality opinion). The Seminole Tribe majority adopted Justice Scalia's position. See Seminole Tribe, 116 S. Ct. at 1128. But cf. HART & WECHSLER (Supp. 1996), supra note 4, at 44 (citing 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1514-15 (1996) (holding that the authority the Twenty-First Amendment conferred on the states did not "diminish the force" of the First Amendment's restrictions on state action)).
93. Id. at 16 (plurality opinion). Justice Scalia, in a separate opinion, objected to the plurality's analogy to Fitzpatrick by arguing that Fitzpatrick merely held that the Eleventh Amendment was modified by the Fourteenth, a "later Amendment," which was not true of the "antecedent provisions of the Constitution" such as the Commerce Clause. Id. at 42 (Scalia, J., concurring in part and dissenting in part). The plurality responded that the "principle embodied in the Eleventh Amendment" predated the Commerce Clause and was thus modified by it. Id. at 17 (plurality opinion). The Seminole Tribe majority adopted Justice Scalia's position. See Seminole Tribe, 116 S. Ct. at 1128. But cf. HART & WECHSLER (Supp. 1996), supra note 4, at 44 (citing 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1514-15 (1996) (holding that the authority the Twenty-First Amendment conferred on the states did not "diminish the force" of the First Amendment's restrictions on state action)).
94. Id. at 16 (plurality opinion). Justice Scalia, in a separate opinion, objected to the plurality's analogy to Fitzpatrick by arguing that Fitzpatrick merely held that the Eleventh Amendment was modified by the Fourteenth, a "later Amendment," which was not true of the "antecedent provisions of the Constitution" such as the Commerce Clause. Id. at 42 (Scalia, J., concurring in part and dissenting in part). The plurality responded that the "principle embodied in the Eleventh Amendment" predated the Commerce Clause and was thus modified by it. Id. at 17 (plurality opinion). The Seminole Tribe majority adopted Justice Scalia's position. See Seminole Tribe, 116 S. Ct. at 1128. But cf. HART & WECHSLER (Supp. 1996), supra note 4, at 44 (citing 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1514-15 (1996) (holding that the authority the Twenty-First Amendment conferred on the states did not "diminish the force" of the First Amendment's restrictions on state action)).
95. Id. at 16 (plurality opinion). Justice Scalia, in a separate opinion, objected to the plurality's analogy to Fitzpatrick by arguing that Fitzpatrick merely held that the Eleventh Amendment was modified by the Fourteenth, a "later Amendment," which was not true of the "antecedent provisions of the Constitution" such as the Commerce Clause. Id. at 42 (Scalia, J., concurring in part and dissenting in part). The plurality responded that the "principle embodied in the Eleventh Amendment" predated the Commerce Clause and was thus modified by it. Id. at 17 (plurality opinion). The Seminole Tribe majority adopted Justice Scalia's position. See Seminole Tribe, 116 S. Ct. at 1128. But cf. HART & WECHSLER (Supp. 1996), supra note 4, at 44 (citing 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1514-15 (1996) (holding that the authority the Twenty-First Amendment conferred on the states did not "diminish the force" of the First Amendment's restrictions on state action)).
96. See Seminole Tribe, 116 S. Ct. at 1126 ("[I]f the Article I commerce power enables abrogation of state sovereign immunity, so do all the other Article I powers.") (quoting Union Gas, 491 U.S. at 42 (Scalia, J., concurring in part and dissenting in part)).
97. See Seminole Tribe, 116 S. Ct. at 1126 ("[I]f the Article I commerce power enables abrogation of state sovereign immunity, so do all the other Article I powers.") (quoting Union Gas, 491 U.S. at 42 (Scalia, J., concurring in part and dissenting in part)).
98. See Chavez v. Arte Publico Press, 59 F.3d 539 (5th Cir. 1995),
99. vacated, University of Houston v. Chavez, 116 S. Ct. 1667 (1996) (mem.) (remanding for reconsideration in light of Seminole Tribe).
100. See Merchants Grain, Inc. v. Mahern, 59 F.3d 630 (7th Cir. 1995), vacated, Ohio Agric. Commodity Depositors Fund v. Mahern, 116 S. Ct. 1411 (1996) (mem.) (remanding for reconsideration in light of Seminole Tribe).
101. See Merchants Grain, Inc. v. Mahern, 59 F.3d 630 (7th Cir. 1995), vacated, Ohio Agric. Commodity Depositors Fund v. Mahern, 116 S. Ct. 1411 (1996) (mem.) (remanding for reconsideration in light of Seminole Tribe).
102. See Ponca Tribe of Oklahoma v. Oklahoma, 37 F.3d 1422 (10th Cir. 1994); Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 1522 (8th Cir. 1993).
103. See Ponca Tribe of Oklahoma v. Oklahoma, 37 F.3d 1422 (10th Cir. 1994); Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 1522 (8th Cir. 1993).
104. Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701-2727 (1994)) [hereinafter IGRA].
105. 25 U.S.C. § 2702(1) (1994).
106. See id. § 2710(d)(7)(A)(i) (1994).
107. See Seminole Tribe, 116 S. Ct. at 1121.
108. See Seminole Tribe of Florida v. State of Florida, 801 F. Supp. 655, 658 (S.D. Fla. 1992).
109. See Seminole Tribe of Florida v. State of Florida, 11 F.3d 1016, 1024 (11th Cir. 1994).
110. See Seminole Tribe, 116 S. Ct. at 1133.
111. See id. at 1126.
112. Justices Brennan, Marshall, Blackmun, and White, all of whom favored abrogation in Union Gas, resigned prior to Seminole Tribe. They were replaced by Justices Souter, Breyer, and Ginsberg, all of whom followed their predecessor's position, and Justice Thomas, who did not, resulting in a flip-flop of the 5-4 Union Gas coalition.
113. See Seminole Tribe, 116 S. Ct. at 1128 (discussing the questionable precedential value of Union Gas, the degree of confusion lower courts encountered in attempting to follow it, and the fact that it was a departure from prior law).
114. Id. at 1128 (quoting Pennsylvania v. Union Gas Co., 491 U.S. 1, 42 (1989) (Scalia, J., concurring in part and dissenting in part)). It is interesting to note that the intuitive appeal of this position depends in part on the way in which we label amendments to the Constitution. Under current practice, successive amendments are tacked onto the end of the document, forming a historical trail of changes; it is thus easy to see that the Fourteenth Amendment followed and (hence, the Court reasoned) modified the Eleventh but that the Commerce Clause did not do so. If, however, we compiled constitutional amendments the way we do amendments to the United States Code, both the Commerce Clause and Section Five of the Fourteenth Amendment would appear as coequal clauses of Article I, Section Eight, significantly obfuscating the reason which justifies treating them differently. See Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 21 (1997).
115. Id. at 1128 (quoting Pennsylvania v. Union Gas Co., 491 U.S. 1, 42 (1989) (Scalia, J., concurring in part and dissenting in part)). It is interesting to note that the intuitive appeal of this position depends in part on the way in which we label amendments to the Constitution. Under current practice, successive amendments are tacked onto the end of the document, forming a historical trail of changes; it is thus easy to see that the Fourteenth Amendment followed and (hence, the Court reasoned) modified the Eleventh but that the Commerce Clause did not do so. If, however, we compiled constitutional amendments the way we do amendments to the United States Code, both the Commerce Clause and Section Five of the Fourteenth Amendment would appear as coequal clauses of Article I, Section Eight, significantly obfuscating the reason which justifies treating them differently. See Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 21 (1997).
116. Id. at 1128 (quoting Pennsylvania v. Union Gas Co., 491 U.S. 1, 42 (1989) (Scalia, J., concurring in part and dissenting in part)). It is interesting to note that the intuitive appeal of this position depends in part on the way in which we label amendments to the Constitution. Under current practice, successive amendments are tacked onto the end of the document, forming a historical trail of changes; it is thus easy to see that the Fourteenth Amendment followed and (hence, the Court reasoned) modified the Eleventh but that the Commerce Clause did not do so. If, however, we compiled constitutional amendments the way we do amendments to the United States Code, both the Commerce Clause and Section Five of the Fourteenth Amendment would appear as coequal clauses of Article I, Section Eight, significantly obfuscating the reason which justifies treating them differently. See Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 21 (1997).
117. See Seminole Tribe, 116 S. Ct. at 1128, 1132. This holding obviously invalidated a number of other commerce-based attempted abrogations. See, e.g., 15 U.S.C. § 1122 (1994) (Eleventh Amendment abrogation for trademark infringement).
118. See Seminole Tribe, 116 S. Ct. at 1128, 1132. This holding obviously invalidated a number of other commerce-based attempted abrogations. See, e.g., 15 U.S.C. § 1122 (1994) (Eleventh Amendment abrogation for trademark infringement).
119. See Seminole Tribe, 116 S. Ct. at 1122 (stating that "[a]lthough the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts," it has not been read to encompass only that meaning).
120. Id. at 1131, 1132. As noted earlier, the Chief Justice's opinion for the majority also implied that the states could exert sovereign immunity from suit in their own courts. See supra note 36 and accompanying text.
121. Seminole Tribe, 116 S. Ct. at 1134 (Stevens, J., dissenting). The potential of this problem to arise had not escaped commentators. See, e.g., H. Stephen Harris, Jr. & Michael P. Kenny, Eleventh Amendment Jurisprudence After Atascadero: The Coming Clash with Antitrust, Copyright, and Other Causes of Action Over Which the Federal Courts Have Exclusive Jurisdiction, 37 EMORY L.J. 645 (1988).
122. Seminole Tribe, 116 S. Ct. at 1134 (Stevens, J., dissenting). The potential of this problem to arise had not escaped commentators. See, e.g., H. Stephen Harris, Jr. & Michael P. Kenny, Eleventh Amendment Jurisprudence After Atascadero: The Coming Clash with Antitrust, Copyright, and Other Causes of Action Over Which the Federal Courts Have Exclusive Jurisdiction, 37 EMORY L.J. 645 (1988).
123. The constitutionality of Congress's vesting exclusive jurisdiction in the federal courts has long been settled. See The Moses Taylor, 71 U.S. (4 Wall.) 411 (1866). As in the abrogation context, however, the Court requires evidence that the clear intent of Congress was to divest the state courts of the ability to hear a case before it will so hold. See supra note 52 and accompanying text; Tafflin v. Levitt, 493 U.S. 455 (1990) (holding that the federal courts do not have exclusive jurisdiction over RICO claims).
124. The constitutionality of Congress's vesting exclusive jurisdiction in the federal courts has long been settled. See The Moses Taylor, 71 U.S. (4 Wall.) 411 (1866). As in the abrogation context, however, the Court requires evidence that the clear intent of Congress was to divest the state courts of the ability to hear a case before it will so hold. See supra note 52 and accompanying text; Tafflin v. Levitt, 493 U.S. 455 (1990) (holding that the federal courts do not have exclusive jurisdiction over RICO claims).
125. The Constitution authorizes Congress "[t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States." U.S. CONST. art. I, § 1, cl. 4. Title 11 of the U.S. Code is the result, and it contains a section clearly attempting to abrogate the Eleventh Amendment. See 11 U.S.C. § 106(a) (1996). Prior to Seminole Tribe, at least one court held that the abrogation was effective,
126. see Merchants Grain, Inc. v. Mahern, 59 F.3d 630, 635 (7th Cir. 1995)
127. (declining to recognize that "it is only a matter of time before the [Union Gas] dissent's viewpoint becomes the law of the land and Union Gas is overturned"), but the Supreme Court vacated and remanded that case "for further consideration in light of Seminole Tribe." Ohio Agric. Commodity Depositors Fund v. Mahern, 116 S. Ct. 1411 (1996) (mem.). In addition, the federal courts have exclusive jurisdiction over bankruptcy petitions.
128. 28 U.S.C. § 1334(a) (1994).
129. Congressional patent statutes generally are passed under the same grant of power as copyright statutes. See U.S. Const. art. I, § 1, cl. 8. The federal courts have exclusive jurisdiction over patent claims, see 28 U.S.C. § 1338(a) (1993), and Congress in 1992 attempted to clearly abrogate state immunity for patent infringements. See Pub. L. 102-560, 106 Stat. 4230 (codified at 35 U.S.C. § 296 (1994)).
130. Congressional patent statutes generally are passed under the same grant of power as copyright statutes. See U.S. Const. art. I, § 1, cl. 8. The federal courts have exclusive jurisdiction over patent claims, see 28 U.S.C. § 1338(a) (1993), and Congress in 1992 attempted to clearly abrogate state immunity for patent infringements. See Pub. L. 102-560, 106 Stat. 4230 (codified at 35 U.S.C. § 296 (1994)).
131. See, e.g., Congress Lacks Constitutional Power to Deny Eleventh Amendment Immunity, 4/1/96 PTD d2 (1996) ("[T]he U.S. Supreme Court . . . casts doubt on the validity of recent reforms that made states liable for violations of federal intellectual property laws.").
132. U.S. CONST. art. I, § 8, cl. 8. The clause covers both patents and copyrights.
133. See 17 U.S.C. § 301(a) (1994) ("[A]ll legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright [as specified], are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.").
134. See 28 U.S.C. § 1338(a) (1994) ("The district courts shall have original jurisdiction over any civil action arising under any Act of Congress relating to . . . copyrights. . . . Such jurisdiction shall be exclusive of the courts of the states in . . . copyright cases.").
135. See Pub. L. 101-553, 104 Stat. 2749 (codified at 17 U.S.C. § 511 (1994)) [hereinafter the Clarification Act].
136. See Legislation: President Signs Bill on Copyright Infringement Liability for States, 41 PATENT, TRADEMARK & COPYRIGHT JOURNAL 73 (1990).
137. See Chavez v. Arte Publico Press, 59 F.3d 539, 546 (5th Cir. 1995) ("Although we are aware of no case that specifically holds that laws passed pursuant to the Copyright Clause can abrogate State immunity, there is no principled reason to distinguish between this and other Article I, section 8 powers entrusted to Congress.") (citing Pennsylvania v. Union Gas Co., 491 U.S. 1, 42 (1989) (Scalia, J., concurring in part and dissenting in part)) . The court in Chavez, however, rested its analysis on waiver grounds. See id. at 546-47.
138. See Chavez v. Arte Publico Press, 59 F.3d 539, 546 (5th Cir. 1995) ("Although we are aware of no case that specifically holds that laws passed pursuant to the Copyright Clause can abrogate State immunity, there is no principled reason to distinguish between this and other Article I, section 8 powers entrusted to Congress.") (citing Pennsylvania v. Union Gas Co., 491 U.S. 1, 42 (1989) (Scalia, J., concurring in part and dissenting in part)) . The court in Chavez, however, rested its analysis on waiver grounds. See id. at 546-47.
139. See Chavez v. Arte Publico Press, 59 F.3d 539, 546 (5th Cir. 1995) ("Although we are aware of no case that specifically holds that laws passed pursuant to the Copyright Clause can abrogate State immunity, there is no principled reason to distinguish between this and other Article I, section 8 powers entrusted to Congress.") (citing Pennsylvania v. Union Gas Co., 491 U.S. 1, 42 (1989) (Scalia, J., concurring in part and dissenting in part)) . The court in Chavez, however, rested its analysis on waiver grounds. See id. at 546-47.
140. Chavez, 116 S. Ct. 1667.
141. I explore below the possibility that courts may view the abrogation as an exercise of Congress's powers under the Fourteenth Amendment. See infra notes 154-79 and accompanying text.
142. See Seminole Tribe, 116 S. Ct. at 1132 ("Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.").
143. The facts of the hypothetical are based loosely on those of Chavez, 59 F.3d 539.
144. The Seventh Circuit has explicitly held that the University of Illinois is entitled to Eleventh Amendment protection, see Kroll v. Board of Trustees of the Univ. of Illinois, 934 F.2d 904, 908 (7th Cir. 1991), and the implication of the Supreme Court's recent unanimous decision in Regents of the Univ. of California v. Doe, concerning the immunity of the University of California, is that state universities will almost always receive Eleventh Amendment protection. 117 S. Ct. 900, 904 (1997) (holding that a state's legal liability for judgments against a state university indicates that the "relationship between the state and its creation" is shielded by the Eleventh Amendment).
145. The Seventh Circuit has explicitly held that the University of Illinois is entitled to Eleventh Amendment protection, see Kroll v. Board of Trustees of the Univ. of Illinois, 934 F.2d 904, 908 (7th Cir. 1991), and the implication of the Supreme Court's recent unanimous decision in Regents of the Univ. of California v. Doe, concerning the immunity of the University of California, is that state universities will almost always receive Eleventh Amendment protection. 117 S. Ct. 900, 904 (1997) (holding that a state's legal liability for judgments against a state university indicates that the "relationship between the state and its creation" is shielded by the Eleventh Amendment).
146. See 17 U.S.C. §§ 106, 501(a) (1994).
147. See Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948) (holding that Congress's power to control the jurisdiction of the lower federal courts is constrained by the Fifth Amendment); Harris, supra note 74, at 713 (arguing in the Eleventh Amendment and antitrust contexts that "[i]t would simply be a fundamental deprivation of due process . . . to deny litigants a forum in which to seek relief"). As I discuss later, there is some question as to whether Congress may override state sovereign immunity in state court. See infra notes 297-321 and accompanying text.
148. "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
149. 209 U.S. 123 (1908).
150. The Court reasoned that since the state Attorney General in Young was attempting to enforce a state law which violated the Constitution, his actions were "stripped of . . . official or representative character" since "[t]he state has no power to impart to him any immunity from responsibility to . . . the United States." Id. at 160. The Court actually first applied this "fiction" 80 years earlier, in Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 857 (1824), when Chief Justice Marshall, writing for the Court, decided that the Eleventh Amendment only applied to cases where the state's name appeared in the caption of the complaint. Since states may only act through their officials, the Eleventh Amendment's promise of sovereign immunity is significantly undercut by Osborn's and Young's allowance of suits against those officials See G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE 1815-1835, at 533-34 (1991) ("It was hard to know what was left of
151. The Court reasoned that since the state Attorney General in Young was attempting to enforce a state law which violated the Constitution, his actions were "stripped of . . . official or representative character" since "[t]he state has no power to impart to him any immunity from responsibility to . . . the United States." Id. at 160. The Court actually first applied this "fiction" 80 years earlier, in Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 857 (1824), when Chief Justice Marshall, writing for the Court, decided that the Eleventh Amendment only applied to cases where the state's name appeared in the caption of the complaint. Since states may only act through their officials, the Eleventh Amendment's promise of sovereign immunity is significantly undercut by Osborn's and Young's allowance of suits against those officials See G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE 1815-1835, at 533-34 (1991) ("It was hard to know what was left of the Amendment after Osborn, since in almost all cases where a state sought to enforce a policy hostile to federal institutions agents of the state would execute the policy.").
152. See CHEMERINSKY, supra note 9, at 389 (citing JOHN ORTH, THE JUDICIAL POWER OF THE UNITED STATES: THE ELEVENTH AMENDMENT IN AMERICAN HISTORY 41 (1987)); HART & WECHSLER, supra note 4, at 1015 ("[I]s the fiction that there ever existed a broad doctrine of sovereign immunity that, outside of a few specific areas, barred relief at the behest of individuals complaining of government illegality?").
153. See CHEMERINSKY, supra note 9, at 389 (citing JOHN ORTH, THE JUDICIAL POWER OF THE UNITED STATES: THE ELEVENTH AMENDMENT IN AMERICAN HISTORY 41 (1987)); HART & WECHSLER, supra note 4, at 1015 ("[I]s the fiction that there ever existed a broad doctrine of sovereign immunity that, outside of a few specific areas, barred relief at the behest of individuals complaining of government illegality?").
154. See CHEMERINSKY, supra note 9, at 389 (citing JOHN ORTH, THE JUDICIAL POWER OF THE UNITED STATES: THE ELEVENTH AMENDMENT IN AMERICAN HISTORY 41 (1987)); HART & WECHSLER, supra note 4, at 1015 ("[I]s the fiction that there ever existed a broad doctrine of sovereign immunity that, outside of a few specific areas, barred relief at the behest of individuals complaining of government illegality?").
155. See, e.g., Seminole 116 S. Ct. at 1180 (Souter, J., dissenting). An interesting problem arises in the wake of Young's holding that state officials were stripped of state authority by acting in violation of the Constitution: how could the actions of those officers satisfy the general requirement that only "state action" can violate the Constitution? The Court, in answering this question, continued inventing fictions and declared that the stripping of state authority only took place for Eleventh Amendment purposes. See Home Tel. & Tel. v. Los Angeles, 227 U.S. 278 (1913); cf. United States v. Ursery, 116 S. Ct. 2135 (1996) (holding that while civil in rem forfeitures are "punishment" for Eighth Amendment purposes, they do not constitute "punishment" for Fifth Amendment purposes).
156. See, e.g., Seminole 116 S. Ct. at 1180 (Souter, J., dissenting). An interesting problem arises in the wake of Young's holding that state officials were stripped of state authority by acting in violation of the Constitution: how could the actions of those officers satisfy the general requirement that only "state action" can violate the Constitution? The Court, in answering this question, continued inventing fictions and declared that the stripping of state authority only took place for Eleventh Amendment purposes. See Home Tel. & Tel. v. Los Angeles, 227 U.S. 278 (1913); cf. United States v. Ursery, 116 S. Ct. 2135 (1996) (holding that while civil in rem forfeitures are "punishment" for Eighth Amendment purposes, they do not constitute "punishment" for Fifth Amendment purposes).
157. See, e.g., Seminole 116 S. Ct. at 1180 (Souter, J., dissenting). An interesting problem arises in the wake of Young's holding that state officials were stripped of state authority by acting in violation of the Constitution: how could the actions of those officers satisfy the general requirement that only "state action" can violate the Constitution? The Court, in answering this question, continued inventing fictions and declared that the stripping of state authority only took place for Eleventh Amendment purposes. See Home Tel. & Tel. v. Los Angeles, 227 U.S. 278 (1913); cf. United States v. Ursery, 116 S. Ct. 2135 (1996) (holding that while civil in rem forfeitures are "punishment" for Eighth Amendment purposes, they do not constitute "punishment" for Fifth Amendment purposes).
158. See 17 U.S.C. § 502(a) (1994) ("Any court having jurisdiction . . . may . . . grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.).
159. See S. Rep. No. 101-553 (1990) (discussing the inadequacy of injunctive relief for copyright infringement); cf. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 410 (1971) (Harlan, J., concurring) ("For people in [petitioner's] shoes, it is damages or nothing.").
160. See S. Rep. No. 101-553 (1990) (discussing the inadequacy of injunctive relief for copyright infringement); cf. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 410 (1971) (Harlan, J., concurring) ("For people in [petitioner's] shoes, it is damages or nothing.").
161. See Seminole Tribe, 116 S. Ct. at 1132.
162. See id. at 1132-33.
163. Id. at 1132. Justice Souter, in dissent, thought the answer to this question was "an easy yes"; he argued that permitting Young suits would not allow litigants to ignore the congressionally created remedies and that Congress couldn't have intended to preempt Young suits - since it erred in assuming that its abrogation of state immunity would survive Eleventh Amendment scrutiny. Id. at 1178, 1182, 1183 (Souter, J., dissenting).
164. Id. at 1132. Justice Souter, in dissent, thought the answer to this question was "an easy yes"; he argued that permitting Young suits would not allow litigants to ignore the congressionally created remedies and that Congress couldn't have intended to preempt Young suits - since it erred in assuming that its abrogation of state immunity would survive Eleventh Amendment scrutiny. Id. at 1178, 1182, 1183 (Souter, J., dissenting).
165. See id. at 1133 n.17. Professor Monaghan argues that the doctrine of Young remains fundamentally undisturbed by Seminole Tribe, since suits against officials will only be prohibited in the "rare situation" like that in Seminole Tribe. See Monaghan, supra note 3, at 132.
166. See id. at 1133 n.17. Professor Monaghan argues that the doctrine of Young remains fundamentally undisturbed by Seminole Tribe, since suits against officials will only be prohibited in the "rare situation" like that in Seminole Tribe. See Monaghan, supra note 3, at 132.
167. See Idaho v. Coeur d'Alene Tribe of Idaho, 117 S. Ct. 2028 (1997) (holding that a tribe's suit against a state, claiming ownership of state lands, was barred by the Eleventh Amendment due to the fact that the state's "sovereign interest in its lands and waters would be affected in a degree fully as intrusive as almost any conceivable retroactive levy upon funds in its Treasury").
168. At the risk of reading too much into the Court's language, Seminole Tribe characterized Young as a "narrow exception" to the Eleventh Amendment, 116 S. Ct. at 1133, contrary to the prevailing view that "Young sapped state sovereign immunity of any real bite, leaving only a narrow domain in which to operate." Monaghan, supra note 3, at 127. But see HART & WECHSLER (4th ed. Supp. 1996), supra note 4, at 47 ("The treatment of Young by the majority . . . may . . . have signaled a retreat from the scope and significance of the Young decision in the enforcement of federal rights."). It is worth noting, however, that the some of the justices view the Young rule as having "special significance" where the state courts are unavailable to hear the case, Coeur d'Alene, 117 S. Ct. at 2035 (opinion of Kennedy, J., joined by Rehnquist, C.J.), suggesting that a Young suit will remain available where the federal courts have exclusive jurisdiction.
169. At the risk of reading too much into the Court's language, Seminole Tribe characterized Young as a "narrow exception" to the Eleventh Amendment, 116 S. Ct. at 1133, contrary to the prevailing view that "Young sapped state sovereign immunity of any real bite, leaving only a narrow domain in which to operate." Monaghan, supra note 3, at 127. But see HART & WECHSLER (4th ed. Supp. 1996), supra note 4, at 47 ("The treatment of Young by the majority . . . may . . . have signaled a retreat from the scope and significance of the Young decision in the enforcement of federal rights."). It is worth noting, however, that the some of the justices view the Young rule as having "special significance" where the state courts are unavailable to hear the case, Coeur d'Alene, 117 S. Ct. at 2035 (opinion of Kennedy, J., joined by Rehnquist, C.J.), suggesting that a Young suit will remain available where the federal courts have exclusive jurisdiction.
170. At the risk of reading too much into the Court's language, Seminole Tribe characterized Young as a "narrow exception" to the Eleventh Amendment, 116 S. Ct. at 1133, contrary to the prevailing view that "Young sapped state sovereign immunity of any real bite, leaving only a narrow domain in which to operate." Monaghan, supra note 3, at 127. But see HART & WECHSLER (4th ed. Supp. 1996), supra note 4, at 47 ("The treatment of Young by the majority . . . may . . . have signaled a retreat from the scope and significance of the Young decision in the enforcement of federal rights."). It is worth noting, however, that the some of the justices view the Young rule as having "special significance" where the state courts are unavailable to hear the case, Coeur d'Alene, 117 S. Ct. at 2035 (opinion of Kennedy, J., joined by Rehnquist, C.J.), suggesting that a Young suit will remain available where the federal courts have exclusive jurisdiction.
171. See Kentucky v. Graham, 473 U.S. 159, 165-167 (1985) (discussing the distinction between suits against an officer in an official capacity and those against an officer in a personal capacity).
172. The fact that the Publishing Director's allegedly illegal conduct occurred while he was "on duty" does not make the suit one against him in his official capacity; the phrase "official capacity" refers to "the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury." Hafer v. Melo, 502 U.S. 21, 26 (1991). "Personal-capacity suits . . . seek to impose individual liability upon a government officer for actions taken under color of state law." Id. at 25.
173. The fact that the Publishing Director's allegedly illegal conduct occurred while he was "on duty" does not make the suit one against him in his official capacity; the phrase "official capacity" refers to "the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury." Hafer v. Melo, 502 U.S. 21, 26 (1991). "Personal-capacity suits . . . seek to impose individual liability upon a government officer for actions taken under color of state law." Id. at 25.
174. See Graham, 473 U.S. at 166 ("[W]hile an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.").
175. Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464 (1945). State indemnification of an officer will not allow that officer to claim Eleventh Amendment immunity on the grounds that any judgment would come out of the state treasury; there the officer, not the state, is the real party in interest. See CHEMERINSKY, supra note 9, at 394 n.22 (citing cases); cf. Doe, 117 S. Ct. at 905 (holding that third party indemnification of a state agency did not remove the agency's Eleventh Amendment immunity).
176. Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464 (1945). State indemnification of an officer will not allow that officer to claim Eleventh Amendment immunity on the grounds that any judgment would come out of the state treasury; there the officer, not the state, is the real party in interest. See CHEMERINSKY, supra note 9, at 394 n.22 (citing cases); cf. Doe, 117 S. Ct. at 905 (holding that third party indemnification of a state agency did not remove the agency's Eleventh Amendment immunity).
177. Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464 (1945). State indemnification of an officer will not allow that officer to claim Eleventh Amendment immunity on the grounds that any judgment would come out of the state treasury; there the officer, not the state, is the real party in interest. See CHEMERINSKY, supra note 9, at 394 n.22 (citing cases); cf. Doe, 117 S. Ct. at 905 (holding that third party indemnification of a state agency did not remove the agency's Eleventh Amendment immunity).
178. The state might, however, indemnify the officer. See CHEMERINSKY, supra note 9, at 394 n.22 (citing cases).
179. See Graham, 473 U.S. at 166. At least one court has opined that patent infringement (an area that the court thought highly analogous to copyright infringement) "does not present the kind of circumstances involving civil or constitutional rights in which qualified immunity is usually raised as a defense" and does not implicate "the policies underlying qualified immunity." Kersavage v. University of Tennessee, 731 F. Supp. 1327, 1329, 1332 (E.D. Tenn. 1989). This view, however, does not seem to represent the current state of the law. See, e.g., Chavez, 59 F.3d at 547-48 (considering the merits of a qualified immunity defense to a copyright infringement claim).
180. See Graham, 473 U.S. at 166. At least one court has opined that patent infringement (an area that the court thought highly analogous to copyright infringement) "does not present the kind of circumstances involving civil or constitutional rights in which qualified immunity is usually raised as a defense" and does not implicate "the policies underlying qualified immunity." Kersavage v. University of Tennessee, 731 F. Supp. 1327, 1329, 1332 (E.D. Tenn. 1989). This view, however, does not seem to represent the current state of the law. See, e.g., Chavez, 59 F.3d at 547-48 (considering the merits of a qualified immunity defense to a copyright infringement claim).
181. See Graham, 473 U.S. at 166. At least one court has opined that patent infringement (an area that the court thought highly analogous to copyright infringement) "does not present the kind of circumstances involving civil or constitutional rights in which qualified immunity is usually raised as a defense" and does not implicate "the policies underlying qualified immunity." Kersavage v. University of Tennessee, 731 F. Supp. 1327, 1329, 1332 (E.D. Tenn. 1989). This view, however, does not seem to represent the current state of the law. See, e.g., Chavez, 59 F.3d at 547-48 (considering the merits of a qualified immunity defense to a copyright infringement claim).
182. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
183. See Anderson v. Creighton, 483 U.S. 635, 641 (1987).
184. See, e.g., Karnes v. Skrutski, 62 F.3d 485, 498 (3d Cir. 1995) (stating that the defendant officers, in order to receive qualified immunity, "need to show their mistake was reasonable") (citing Butz v. Economou, 438 U.S. 478, 507 (1978)); Harris v. Coweta County, 21 F.3d 388, 390 (11th Cir. 1994) ("'Tublic officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law.'") (quoting Butz, 438 U.S. at 507).
185. See, e.g., Karnes v. Skrutski, 62 F.3d 485, 498 (3d Cir. 1995) (stating that the defendant officers, in order to receive qualified immunity, "need to show their mistake was reasonable") (citing Butz v. Economou, 438 U.S. 478, 507 (1978)); Harris v. Coweta County, 21 F.3d 388, 390 (11th Cir. 1994) ("'Tublic officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law.'") (quoting Butz, 438 U.S. at 507).
186. See, e.g., Karnes v. Skrutski, 62 F.3d 485, 498 (3d Cir. 1995) (stating that the defendant officers, in order to receive qualified immunity, "need to show their mistake was reasonable") (citing Butz v. Economou, 438 U.S. 478, 507 (1978)); Harris v. Coweta County, 21 F.3d 388, 390 (11th Cir. 1994) ("'Tublic officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law.'") (quoting Butz, 438 U.S. at 507).
187. See, e.g., Karnes v. Skrutski, 62 F.3d 485, 498 (3d Cir. 1995) (stating that the defendant officers, in order to receive qualified immunity, "need to show their mistake was reasonable") (citing Butz v. Economou, 438 U.S. 478, 507 (1978)); Harris v. Coweta County, 21 F.3d 388, 390 (11th Cir. 1994) ("'Tublic officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law.'") (quoting Butz, 438 U.S. at 507).
188. See Anderson, 483 U.S. at 641.
189. Id. at 638 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
190. Id. at 638 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
191. See supra note 36 and accompanying text.
192. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 25 (1989) (Stevens, J., concurring) (citing cases).
193. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n.1 (1985).
194. Id. at 239-40, 241 (quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974)). States sometimes go to great lengths to ensure that a court will not construe its statutory scheme as evidence of its intent to waive its Eleventh Amendment immunity. See, e.g., CAL. GOV'T CODE § 67536 (West 1997) ("[T]he State of California does not consent to any suit filed against the [San Francisco Bay Area Transportation Terminal Authority] in any federal court of the United States.").
195. Id. at 239-40, 241 (quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974)). States sometimes go to great lengths to ensure that a court will not construe its statutory scheme as evidence of its intent to waive its Eleventh Amendment immunity. See, e.g., CAL. GOV'T CODE § 67536 (West 1997) ("[T]he State of California does not consent to any suit filed against the [San Francisco Bay Area Transportation Terminal Authority] in any federal court of the United States.").
196. Id. at 239-40, 241 (quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974)). States sometimes go to great lengths to ensure that a court will not construe its statutory scheme as evidence of its intent to waive its Eleventh Amendment immunity. See, e.g., CAL. GOV'T CODE § 67536 (West 1997) ("[T]he State of California does not consent to any suit filed against the [San Francisco Bay Area Transportation Terminal Authority] in any federal court of the United States.").
197. See, e.g., Atascadero, 473 U.S. at 241 (interpreting a provision of the California Constitution allowing "Suits . . . against the state in such manner and in such courts as shall be directed by law").
198. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 306 (1990) ("A state does not waive its Eleventh Amendment immunity by consenting to suit only in its own courts."); Atascadero, 473 U.S. at 241 ("[I]t must specify the State's intention to subject itself to suit in federal court.").
199. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 306 (1990) ("A state does not waive its Eleventh Amendment immunity by consenting to suit only in its own courts."); Atascadero, 473 U.S. at 241 ("[I]t must specify the State's intention to subject itself to suit in federal court.").
200. Compare Feeney, 495 U.S. at 306-07 (holding that while a general waiver of sovereign immunity in a statute was inadequate to waive the Eleventh Amendment's protections, the statute's venue provision - which referenced a venue "established . . . by the United States" - evidenced the clear intent of New York and New Jersey to consent to suit in federal court), with Micomonaco v. State of Washington, 45 F.3d 316, 321 n.4 (9th Cir. 1995) (holding that a state's general waiver of sovereign immunity in a statute was inadequate to waive the Eleventh Amendment's protections and noting that the statute's venue provision only seemed to contemplate suit in state court). Since the states are barred from regulating the subject matter areas discussed in this article and since waivers by "overwhelming implication from the text" are generally going to be found only in complex state regulatory schemes, this aspect of waiver jurisprudence is not relevant to this article.
201. Compare Feeney, 495 U.S. at 306-07 (holding that while a general waiver of sovereign immunity in a statute was inadequate to waive the Eleventh Amendment's protections, the statute's venue provision - which referenced a venue "established . . . by the United States" - evidenced the clear intent of New York and New Jersey to consent to suit in federal court), with Micomonaco v. State of Washington, 45 F.3d 316, 321 n.4 (9th Cir. 1995) (holding that a state's general waiver of sovereign immunity in a statute was inadequate to waive the Eleventh Amendment's protections and noting that the statute's venue provision only seemed to contemplate suit in state court). Since the states are barred from regulating the subject matter areas discussed in this article and since waivers by "overwhelming implication from the text" are generally going to be found only in complex state regulatory schemes, this aspect of waiver jurisprudence is not relevant to this article.
202. ILL. CONST. art. XIII, § 4.
203. That exception, discussed infra note 322 and accompanying text, concerns the Illinois Court of Claims. The Illinois General Assembly later amended the statute to include a second exception which is not relevant here. See P.A. 83-1012 § 26 (codified at 745 ILL. COMP. STAT. 5/1 (West 1993)).
204. That exception, discussed infra note 322 and accompanying text, concerns the Illinois Court of Claims. The Illinois General Assembly later amended the statute to include a second exception which is not relevant here. See P.A. 83-1012 § 26 (codified at 745 ILL. COMP. STAT. 5/1 (West 1993)).
205. P.A. 77-1776 § 1 (codified as amended at 745 ILL. COMP. STAT. 5/1) (emphasis added).
206. P.A. 77-1776 § 1 (codified as amended at 745 ILL. COMP. STAT. 5/1) (emphasis added).
207. See 745 ILL. COMP. STAT. 5/.01 to 80/1 (West 1993).
208. CHEMERINSKY, supra note 9, at 407; accord Susan D. Raively, Note, Copyright Infringement Suits Against States: Is the Eleventh Amendment a Valid Defense?, 6 CARDOZO ARTS & ENT. L.J. 501, 505 n.23 (1988) (stating that as of 1988, no state had explicitly waived its Eleventh Amendment immunity to copyright suits). By contrast, the United States has waived its immunity and may be sued for money damages (though not injunctive relief) in federal court for copyright or patent infringement. See 28 U.S.C. § 1498(b) (1994).
209. CHEMERINSKY, supra note 9, at 407; accord Susan D. Raively, Note, Copyright Infringement Suits Against States: Is the Eleventh Amendment a Valid Defense?, 6 CARDOZO ARTS & ENT. L.J. 501, 505 n.23 (1988) (stating that as of 1988, no state had explicitly waived its Eleventh Amendment immunity to copyright suits). By contrast, the United States has waived its immunity and may be sued for money damages (though not injunctive relief) in federal court for copyright or patent infringement. See 28 U.S.C. § 1498(b) (1994).
210. CHEMERINSKY, supra note 9, at 407; accord Susan D. Raively, Note, Copyright Infringement Suits Against States: Is the Eleventh Amendment a Valid Defense?, 6 CARDOZO ARTS & ENT. L.J. 501, 505 n.23 (1988) (stating that as of 1988, no state had explicitly waived its Eleventh Amendment immunity to copyright suits). By contrast, the United States has waived its immunity and may be sued for money damages (though not injunctive relief) in federal court for copyright or patent infringement. See 28 U.S.C. § 1498(b) (1994).
211. 377 U.S. 184, 192 (1964).
212. Id. at 187.
213. 116 S. Ct. at 1123 ("In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: first, whether Congress has 'unequivocally expresse[d] its intent to abrogate the immunity,' . . . and second, whether Congress has acted 'pursuant to a valid exercise of power.'") (citations omitted).
214. See Parden, 377 U.S. at 187.
215. Id. at 190-91.
216. See id. at 192 ("Recognition of the congressional power to render a State suable under the FELA does not mean that the immunity doctrine, as embodied in the Eleventh Amendment . . . is here being overriden.").
217. Id.
218. See Employees of the Dep't of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279, 285 (1973) (requiring a clear statement from Congress before allowing application of Parden's implied waiver rule); Edelman, 415 U.S. at 673 (holding that a state's participation in a federal program and acceptance of federal funds did not amount to an Eleventh Amendment waiver).
219. See Employees of the Dep't of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279, 285 (1973) (requiring a clear statement from Congress before allowing application of Parden's implied waiver rule); Edelman, 415 U.S. at 673 (holding that a state's participation in a federal program and acceptance of federal funds did not amount to an Eleventh Amendment waiver).
220. Edelman, 415 U.S. at 673.
221. 483 U.S. at 478.
222. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 948 F. Supp. 400, 416 (D.N.J. 1996), aff'd, - F.3d - (3d Cir. 1997).
223. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 948 F. Supp. 400, 416 (D.N.J. 1996), aff'd, - F.3d - (3d Cir. 1997).
224. CHEMERINSKY, supra note 9, at 410.
225. Parden, 377 U.S. at 192.
226. See Seminole Tribe, 116 S. Ct. at 1128.
227. See Close v. State of New York, 125 F.3d 31, 40-41 (2d Cir. 1997) (Parden's viability, in light of Seminole[,] is precarious. If Congress no longer has the power to abrogate state sovereign immunity under Article I, constructive consent should not become a shunt to Article III bypassing the mandate of the Supreme Court."); American Fed'n. of State, County and Mun. Employees v. Commonwealth of Virginia, 949 F. Supp. 438, 442 (W.D. Va. 1996) ("If the court were to accept plaintiffs' implied waiver argument, it would be doing indirectly that which Congress could not do directly."); College Savings Bank, 948 F. Supp. at 420 ("[W]e conclude that Parden has been overruled by implication by Seminole Tribe to the extent that Parden held that Congress, acting pursuant to the powers conferred upon it in Article I of the Constitution, may explicitly condition a state's participation in a particular market on its waiver of immunity from suit.").
228. See Close v. State of New York, 125 F.3d 31, 40-41 (2d Cir. 1997) (Parden's viability, in light of Seminole[,] is precarious. If Congress no longer has the power to abrogate state sovereign immunity under Article I, constructive consent should not become a shunt to Article III bypassing the mandate of the Supreme Court."); American Fed'n. of State, County and Mun. Employees v. Commonwealth of Virginia, 949 F. Supp. 438, 442 (W.D. Va. 1996) ("If the court were to accept plaintiffs' implied waiver argument, it would be doing indirectly that which Congress could not do directly."); College Savings Bank, 948 F. Supp. at 420 ("[W]e conclude that Parden has been overruled by implication by Seminole Tribe to the extent that Parden held that Congress, acting pursuant to the powers conferred upon it in Article I of the Constitution, may explicitly condition a state's participation in a particular market on its waiver of immunity from suit.").
229. See Close v. State of New York, 125 F.3d 31, 40-41 (2d Cir. 1997) (Parden's viability, in light of Seminole[,] is precarious. If Congress no longer has the power to abrogate state sovereign immunity under Article I, constructive consent should not become a shunt to Article III bypassing the mandate of the Supreme Court."); American Fed'n. of State, County and Mun. Employees v. Commonwealth of Virginia, 949 F. Supp. 438, 442 (W.D. Va. 1996) ("If the court were to accept plaintiffs' implied waiver argument, it would be doing indirectly that which Congress could not do directly."); College Savings Bank, 948 F. Supp. at 420 ("[W]e conclude that Parden has been overruled by implication by Seminole Tribe to the extent that Parden held that Congress, acting pursuant to the powers conferred upon it in Article I of the Constitution, may explicitly condition a state's participation in a particular market on its waiver of immunity from suit.").
230. 491 U.S. at 44 (Scalia, J., concurring in part and dissenting in part); see also Aer-Aerotron, Inc. v. Texas Dep't of Trans., 104 F.3d 677, 681 (4th Cir. 1997) ("We realize that the power to define waiver can become the functional equivalent of the power to abrogate. Indeed, defining waiver as anything less than 'the sort of voluntary choice which we generally associate with the concept of constitutional waiver' permits Congress to do indirectly what it perhaps could not do otherwise.") (quoting Employees, 411 U.S. at 296 (Marshall, J., concurring)).
231. 491 U.S. at 44 (Scalia, J., concurring in part and dissenting in part); see also Aer-Aerotron, Inc. v. Texas Dep't of Trans., 104 F.3d 677, 681 (4th Cir. 1997) ("We realize that the power to define waiver can become the functional equivalent of the power to abrogate. Indeed, defining waiver as anything less than 'the sort of voluntary choice which we generally associate with the concept of constitutional waiver' permits Congress to do indirectly what it perhaps could not do otherwise.") (quoting Employees, 411 U.S. at 296 (Marshall, J., concurring)).
232. 491 U.S. at 44 (Scalia, J., concurring in part and dissenting in part); see also Aer-Aerotron, Inc. v. Texas Dep't of Trans., 104 F.3d 677, 681 (4th Cir. 1997) ("We realize that the power to define waiver can become the functional equivalent of the power to abrogate. Indeed, defining waiver as anything less than 'the sort of voluntary choice which we generally associate with the concept of constitutional waiver' permits Congress to do indirectly what it perhaps could not do otherwise.") (quoting Employees, 411 U.S. at 296 (Marshall, J., concurring)).
233. Cf. Genentech v. Regents of the Univ. of California, 939 F. Supp. 639 (S.D. Ind. 1996) (holding that a state university's procurement of a patent is not sufficient to subject it to suit in federal court).
234. If, however, Congress amended the intellectual property laws to provide that a state could not own a patent or a copyright unless the state's legislature passed a law waiving its Eleventh Amendment immunity from infringement suits, Congress might succeed. But cf. New York v. United States, 505 U.S. 144 (1992) (discussing Tenth Amendment limitations on the ability of Congress to commandeer the state legislatures). One student commentator takes the confused position that this congressional enactment would be authorized as an exercise of Congress's conditional spending power. See Andrew S. Williamson, Note, 85 GEO. L.J. 1739, 1759 (1997) ("Congress could deny a state university or research institution copyright and patent protection for original works and inventions unless the state agreed to waive its Eleventh Amendment sovereign immunity with respect to copyright and patent infringement claims." This is nonsense: surely Congress's exercise of its conditional spending power must involve spending. I discuss conditional spending at infra notes 260-83 and accompanying text.
235. If, however, Congress amended the intellectual property laws to provide that a state could not own a patent or a copyright unless the state's legislature passed a law waiving its Eleventh Amendment immunity from infringement suits, Congress might succeed. But cf. New York v. United States, 505 U.S. 144 (1992) (discussing Tenth Amendment limitations on the ability of Congress to commandeer the state legislatures). One student commentator takes the confused position that this congressional enactment would be authorized as an exercise of Congress's conditional spending power. See Andrew S. Williamson, Note, 85 GEO. L.J. 1739, 1759 (1997) ("Congress could deny a state university or research institution copyright and patent protection for original works and inventions unless the state agreed to waive its Eleventh Amendment sovereign immunity with respect to copyright and patent infringement claims." This is nonsense: surely Congress's exercise of its conditional spending power must involve spending. I discuss conditional spending at infra notes 260-83 and accompanying text.
236. See supra notes 118-143 and accompanying text.
237. Considering the filing of a copyright or patent application as consent to suit in federal court would probably allow an employee of University Publishing, in the course of his or her ordinary publishing related duties, to waive the sovereign immunity of the state of Illinois, an absurd result. To prevent this, the Illinois legislature would be forced to pass a statute prohibiting any state employee from filing such an application. This would represent a remarkable shift from current waiver doctrine, which requires not only that the state legislature affirmatively waive the state's immunity, but also that it do so in unmistakable terms. See supra note 119 and accompanying text.
238. See, e.g., Sacred Heart Hosp. of Norristown v. Commonwealth of Pennsylvania Dep't of Welfare, 199 B.R. 129, 134 (Bankr. E.D. Pa. 1996) ("We continue to believe that the concept that a bankruptcy claimant waives constitutional rights when asserting a claim in the bankruptcy court . . . survives Seminole.") overruled by 204 B.R. 132 (E.D. Penn 1997).
239. See, e.g., Sacred Heart Hosp. of Norristown v. Commonwealth of Pennsylvania Dep't of Welfare, 199 B.R. 129, 134 (Bankr. E.D. Pa. 1996) ("We continue to believe that the concept that a bankruptcy claimant waives constitutional rights when asserting a claim in the bankruptcy court . . . survives Seminole.") overruled by 204 B.R. 132 (E.D. Penn 1997).
240. 11 U.S.C. § 106(b) (1994).
241. See, e.g., In re Light, 87 F.3d 1320 (9th Cir. 1996) (unpublished disposition) ("The Supreme Court's recent decision [in Seminole Tribe] forecloses any argument that § 106 of the Bankruptcy Code abrogates the States' sovereign immunity.").
242. See S. Elizabeth Gibson, Sovereign Immunity in Bankruptcy: The Next Chapter, 70 AM. BANKR. L.J. 195, 212 (1996) (describing as "doubtful" the validity of a finding of implied waiver via the filing of a proof of claim but noting that "in the aftermath of Seminole, attention will return to constructive waiver as a means of avoiding the Eleventh Amendment bar").
243. Compare In re Headrick, 200 B.R. 963, 968 (Bankr. S.D. Ga. 1996) ("Although Georgia has not legislatively [or in its constitution] waived its Eleventh Amendment immunity, . . . it . . . here has waived this immunity by filing a proof of claim against the Debtor's estate."), with Midland Mechanical Contractors, Inc. v. Board of Regents of the Univ. Sys. of Georgia, 200 B.R. 453, 458 (Bankr. N.D. Ga. 1996) ("[Georgia's] sovereign immunity remains intact unless the Legislature clearly has delegated its power to waive immunity to the Attorney General at his discretion."); see also Mark Browning, Who Can Waive State Immunity, AM. BANKR. INST. J., Jan. 1996, at 10 (1996) (discussing bankruptcy courts' misunderstanding of this issue).
244. Compare In re Headrick, 200 B.R. 963, 968 (Bankr. S.D. Ga. 1996) ("Although Georgia has not legislatively [or in its constitution] waived its Eleventh Amendment immunity, . . . it . . . here has waived this immunity by filing a proof of claim against the Debtor's estate."), with Midland Mechanical Contractors, Inc. v. Board of Regents of the Univ. Sys. of Georgia, 200 B.R. 453, 458 (Bankr. N.D. Ga. 1996) ("[Georgia's] sovereign immunity remains intact unless the Legislature clearly has delegated its power to waive immunity to the Attorney General at his discretion."); see also Mark Browning, Who Can Waive State Immunity, AM. BANKR. INST. J., Jan. 1996, at 10 (1996) (discussing bankruptcy courts' misunderstanding of this issue).
245. Compare In re Headrick, 200 B.R. 963, 968 (Bankr. S.D. Ga. 1996) ("Although Georgia has not legislatively [or in its constitution] waived its Eleventh Amendment immunity, . . . it . . . here has waived this immunity by filing a proof of claim against the Debtor's estate."), with Midland Mechanical Contractors, Inc. v. Board of Regents of the Univ. Sys. of Georgia, 200 B.R. 453, 458 (Bankr. N.D. Ga. 1996) ("[Georgia's] sovereign immunity remains intact unless the Legislature clearly has delegated its power to waive immunity to the Attorney General at his discretion."); see also Mark Browning, Who Can Waive State Immunity, AM. BANKR. INST. J., Jan. 1996, at 10 (1996) (discussing bankruptcy courts' misunderstanding of this issue).
246. See Midland Mechanical, 200 B.R. at 458 (collecting cases).
247. See supra notes 49-52 and accompanying text. In so holding, the Court dramatically raised the stakes over whether courts consider statutes to be Section Five enactments. Prior to Seminole Tribe, whether Section Five supported a statute was a somewhat important question, for some laws which fell outside of Congress's Article I powers might be saved by the Fourteenth Amendment. Now, however, the question takes on much greater significance, as Section Five based statutes occupy a privileged place in Eleventh Amendment jurisprudence. It remains to be seen how the Court, which seems to intend to protect state sovereign immunity, will react to this. It could assert tighter control over what statutes qualify under Section Five, or it might qualify Fitzpatrick's, holding that all Section Five based statutes are potent enough to abrogate the Eleventh Amendment.
248. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).
249. See, e.g., Unites States v. Price, 383 U.S. 787, 789 (1966) ("We have no doubt of the power of Congress to enforce . . . every right guaranteed by the Due Process Clause of the Fourteenth Amendment.").
250. U.S. CONST. amend 14, § 1; see, e.g., Genentech v. Regents of the Univ. of California, 939 F. Supp. 639, 643 (S.D. Ind. 1996) ("[A] patent is a protectible property right and to permit the state to infringe that property right . . . would deprive th[e] owner of property without due process of law.").
251. If patents and copyrights are property, then the congressional protection of them is "appropriate legislation" to enforce the Fourteenth Amendment as required by the Supreme Court. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 948 F. Supp. 400, 422 (D.N.J. 1996) (citing Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)).
252. If patents and copyrights are property, then the congressional protection of them is "appropriate legislation" to enforce the Fourteenth Amendment as required by the Supreme Court. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 948 F. Supp. 400, 422 (D.N.J. 1996) (citing Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)).
253. See, e.g., Carl Schenck, A.G. v. Nortron Corp., 713 F.2d 782, 786 n.3 (Fed. Cir. 1983) ("The patent right is but the right to exclude others, the very definition of 'property.'"); Door Sys., Inc. v. Pro-Line Door Sys., Inc., 83 F.3d 169, 173 (7th Cir. 1996) (recognizing that copyright is a "property right").
254. See, e.g., Carl Schenck, A.G. v. Nortron Corp., 713 F.2d 782, 786 n.3 (Fed. Cir. 1983) ("The patent right is but the right to exclude others, the very definition of 'property.'"); Door Sys., Inc. v. Pro-Line Door Sys., Inc., 83 F.3d 169, 173 (7th Cir. 1996) (recognizing that copyright is a "property right").
255. Daniels v. Williams, 474 U.S. 327, 328 (1986). Deliberate deprivations of property are prohibited by the Clause, however, see id., so application of the copyright and patent abrogations to situations involving intentional state action requires no further analysis; the abrogations would then act as a straightforward enforcement of the due process guarantee as interpreted by the Supreme Court.
256. Daniels v. Williams, 474 U.S. 327, 328 (1986). Deliberate deprivations of property are prohibited by the Clause, however, see id., so application of the copyright and patent abrogations to situations involving intentional state action requires no further analysis; the abrogations would then act as a straightforward enforcement of the due process guarantee as interpreted by the Supreme Court.
257. Congressional underenforcement of the Fourteenth Amendment would raise even more serious issues. See Katzenbach v. Morgan, 384 U.S. at 649 n.10 ("We emphasize that Congress's power under § 5 is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees. Thus, for example, an enactment authorizing the States to establish racially segregated systems of education would not be - as required by § 5 - a measure 'to enforce' the Equal Protection Clause since that clause of its own force prohibits such state laws.).
258. This discussion is premised on the Court's willingness to find, as a preliminary matter, that Congress intended the abrogation statutes to reach the negligent conduct of state officers. This is by no means certain, however, given the application of hyper-clear statement rules in the Eleventh Amendment context. Cf. Daniels, 474 U.S. at 328 (finding that 28 U.S.C. § 1983, through which a citizen may enforce the Due Process Clause against a state officer, did not provide the citizen with a cause of action against a negligent officer).
259. Which is to say that such articles have been written; most of the recent ones debate the Constitutionality of the Religious Freedom Restoration Act [hereinafter RFRA], in which Congress purported to impose a stricter standard of review on state regulations which impair religious freedom than the Court's First Amendment decisions required. See, e.g., Bonnie I. Robin-Vergeer, Disposing of the Red Herrings: A Defense of the Religious Freedom Restoration Act, 69 S. CAL. L. REV. 589 (1996); Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 V AND. L. REV. 1539 (1995); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 CARDOZO L. REV. 357 (1994).
260. Which is to say that such articles have been written; most of the recent ones debate the Constitutionality of the Religious Freedom Restoration Act [hereinafter RFRA], in which Congress purported to impose a stricter standard of review on state regulations which impair religious freedom than the Court's First Amendment decisions required. See, e.g., Bonnie I. Robin-Vergeer, Disposing of the Red Herrings: A Defense of the Religious Freedom Restoration Act, 69 S. CAL. L. REV. 589 (1996); Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 V AND. L. REV. 1539 (1995); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 CARDOZO L. REV. 357 (1994).
261. Which is to say that such articles have been written; most of the recent ones debate the Constitutionality of the Religious Freedom Restoration Act [hereinafter RFRA], in which Congress purported to impose a stricter standard of review on state regulations which impair religious freedom than the Court's First Amendment decisions required. See, e.g., Bonnie I. Robin-Vergeer, Disposing of the Red Herrings: A Defense of the Religious Freedom Restoration Act, 69 S. CAL. L. REV. 589 (1996); Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 V AND. L. REV. 1539 (1995); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 CARDOZO L. REV. 357 (1994).
262. 100 U.S. (10 Otto) 339 (1879).
263. Id. at 345-46.
264. 384 U.S. 641 (1966).
265. Id. at 650.
266. Id. at 651 (quoting McColloch v. Maryland, 17 U.S. (4 Wheat) 316, 421 (1819)).
267. Id. at 651 (quoting McColloch v. Maryland, 17 U.S. (4 Wheat) 316, 421 (1819)).
268. See id. at 649 (citing Lassiter v. Northampton County Bd. of Election, 360 U.S. 45 (1959)).
269. See id. at 649 (citing Lassiter v. Northampton County Bd. of Election, 360 U.S. 45 (1959)).
270. id. at 656.
271. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
272. 400 U.S. 112 (1970).
273. See id. at 118 (opinion of Black, J.).
274. id. at 128-29 (opinion of Black, J.).
275. See Fitzpatrick v. Bitzer, 427 U.S. at 453.
276. City of Boerne v. Flores, 117 S. Ct. 2157, 2158-59 (1997). The Court acknowledged that while "the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed." Id.
277. City of Boerne v. Flores, 117 S. Ct. 2157, 2158-59 (1997). The Court acknowledged that while "the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed." Id.
278. This is not true of the patent abrogation, since there Congress specifically invoked its Fourteenth Amendment power when it passed the law. See S. Rep. No. 102-280 (1992), reprinted in 1992 U.S.C.C.A.N. 3087 ("[T]he bill is justified as an acceptable method of enforcing the provisions of the fourteenth amendment."). No similar invocation appears to have been made with respect to the copyright abrogation. See S. Rep. No. 101-305; H.R. Conf. Rep. No. 101-887 (1990), reprinted in 1990 U.S.C.C.A.N. 3965.
279. This is not true of the patent abrogation, since there Congress specifically invoked its Fourteenth Amendment power when it passed the law. See S. Rep. No. 102-280 (1992), reprinted in 1992 U.S.C.C.A.N. 3087 ("[T]he bill is justified as an acceptable method of enforcing the provisions of the fourteenth amendment."). No similar invocation appears to have been made with respect to the copyright abrogation. See S. Rep. No. 101-305; H.R. Conf. Rep. No. 101-887 (1990), reprinted in 1990 U.S.C.C.A.N. 3965.
280. This is not true of the patent abrogation, since there Congress specifically invoked its Fourteenth Amendment power when it passed the law. See S. Rep. No. 102-280 (1992), reprinted in 1992 U.S.C.C.A.N. 3087 ("[T]he bill is justified as an acceptable method of enforcing the provisions of the fourteenth amendment."). No similar invocation appears to have been made with respect to the copyright abrogation. See S. Rep. No. 101-305; H.R. Conf. Rep. No. 101-887 (1990), reprinted in 1990 U.S.C.C.A.N. 3965.
281. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948); see also EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983) (stating that federal statutes need not "recite the words 'section 5' or 'Fourteenth Amendment'"); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 698 (1st. Cir. 1983) ("The omission of any ritualistic incantation of powers by the Congress is not determinative, for there is no requirement that the statute incorporate buzz words such as 'Fourteenth Amendment' or 'section five'. . . .").
282. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948); see also EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983) (stating that federal statutes need not "recite the words 'section 5' or 'Fourteenth Amendment'"); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 698 (1st. Cir. 1983) ("The omission of any ritualistic incantation of powers by the Congress is not determinative, for there is no requirement that the statute incorporate buzz words such as 'Fourteenth Amendment' or 'section five'. . . .").
283. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948); see also EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983) (stating that federal statutes need not "recite the words 'section 5' or 'Fourteenth Amendment'"); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 698 (1st. Cir. 1983) ("The omission of any ritualistic incantation of powers by the Congress is not determinative, for there is no requirement that the statute incorporate buzz words such as 'Fourteenth Amendment' or 'section five'. . . .").
284. See Wilson-Jones v. Caviness, 99 F.3d 203, 209-10 (6th Cir. 1996) (setting forth this principle and holding that the Fair Labor Standards Act does not enforce the "core promise" of equal protection of the laws). The Court might, however, show its respect for the Eleventh Amendment by declaring a limited exception to the general rule and requiring that Congress clearly invoke the Fourteenth Amendment in order to abrogate the Eleventh. This would obviously be in keeping with the Court's insistence on clear statements in the abrogation context generally. See supra notes 119-122 and accompanying text.
285. See, e.g., In re Southern Star Foods, Inc., 190 B.R. 419, 426 (Bankr. E.D. Okla. 1995); Headrick, 200 B.R. at 967. But see In re Tri-City Turf Club, Inc., 203 B.R. 617, 619-20 (Bankr. E.D. Ky. 1996) (holding that the Fourteenth Amendment does not provide a sound basis for allowing the bankruptcy laws to abrogate the Eleventh Amendment).
286. See, e.g., In re Southern Star Foods, Inc., 190 B.R. 419, 426 (Bankr. E.D. Okla. 1995); Headrick, 200 B.R. at 967. But see In re Tri-City Turf Club, Inc., 203 B.R. 617, 619-20 (Bankr. E.D. Ky. 1996) (holding that the Fourteenth Amendment does not provide a sound basis for allowing the bankruptcy laws to abrogate the Eleventh Amendment).
287. See, e.g., In re Southern Star Foods, Inc., 190 B.R. 419, 426 (Bankr. E.D. Okla. 1995); Headrick, 200 B.R. at 967. But see In re Tri-City Turf Club, Inc., 203 B.R. 617, 619-20 (Bankr. E.D. Ky. 1996) (holding that the Fourteenth Amendment does not provide a sound basis for allowing the bankruptcy laws to abrogate the Eleventh Amendment).
288. 491 U.S. 1, 42 (1989) (Scalia, J., concurring in part and dissenting in part).
289. see Southern Star, 190 B.R. at 426. The majority in Seminole Tribe adopted Justice Scalia's position. See Seminole Tribe, 116 S. Ct. at 1128 ("As the dissent in Union Gas made clear, Fitzpatrick cannot be read to justify 'limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution.'") (citing Union Gas, 491 U.S. at 42 (Scalia, J., concurring in part and dissenting in part)).
290. see Southern Star, 190 B.R. at 426. The majority in Seminole Tribe adopted Justice Scalia's position. See Seminole Tribe, 116 S. Ct. at 1128 ("As the dissent in Union Gas made clear, Fitzpatrick cannot be read to justify 'limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution.'") (citing Union Gas, 491 U.S. at 42 (Scalia, J., concurring in part and dissenting in part)).
291. see Southern Star, 190 B.R. at 426. The majority in Seminole Tribe adopted Justice Scalia's position. See Seminole Tribe, 116 S. Ct. at 1128 ("As the dissent in Union Gas made clear, Fitzpatrick cannot be read to justify 'limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution.'") (citing Union Gas, 491 U.S. at 42 (Scalia, J., concurring in part and dissenting in part)).
292. Southern Star, 190 B.R. at 426.
293. Id.
294. Id.
295. 83 U.S. (16 Wall.) 36 (1873).
296. GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 774 (2d ed. 1991) (citing E. CORWIN, THE CONSTITUTION OF THE UNITED STATES OF AMERICA 965 (1953)).
297. GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 774 (2d ed. 1991) (citing E. CORWIN, THE CONSTITUTION OF THE UNITED STATES OF AMERICA 965 (1953)).
298. Slaughter House Cases, 83 U.S. at 78.
299. Id. at 96.
300. Wilson-Jones, 99 F.3d at 210; see also Kish v. Verniero, 212 B.R. 808 (D.N.J. 1997) (criticizing Chief Judge Wilson's Southern Star Foods decision and concluding that the Fourteenth Amendment cannot save the bankruptcy abrogation).
301. Wilson-Jones, 99 F.3d at 210; see also Kish v. Verniero, 212 B.R. 808 (D.N.J. 1997) (criticizing Chief Judge Wilson's Southern Star Foods decision and concluding that the Fourteenth Amendment cannot save the bankruptcy abrogation).
302. See Mitchell, 400 U.S. at 128. Perhaps tellingly, Chief Judge Wilson's opinion does not contain any discussion of or citation to the Supreme Court case law limiting Congress's powers under Section Five of the Fourteenth Amendment.
303. In fairness to Chief Judge Wilson, I note that his opinion was published in December, 1996, several months prior to the Supreme Court's decision in Seminole Tribe. His analysis, however, did not rely on abrogation under the bankruptcy clause (which would have been directly undermined by Seminole Tribe) and probably would remain unchanged given that Seminole Tribe did not address abrogations under the Fourteenth Amendment. Another bankruptcy court, initially following the Chief Judge's Privileges and Immunities analysis, see In re Headrick, 200 B.R. 963, 967 (Bankr. S.D. Ga. 1996) (citing Southern Star, 190 B.R. 419), later reconsidered its ruling in light of Seminole Tribe but refused to overrule itself. See In re Headrick, 203 B.R. 805, 809 (Bankr. S.D. Ga. 1996) (asserting, against Georgia's claim that "failing to reverse the decision would be a de facto finding that Congress has authority to abrogate the State's immunity under any federal statute," that "the analysis here is limited to the bankruptcy clause of the Constitution," though not stating a single reason why the analysis didn't apply to every Article I power).
304. In fairness to Chief Judge Wilson, I note that his opinion was published in December, 1996, several months prior to the Supreme Court's decision in Seminole Tribe. His analysis, however, did not rely on abrogation under the bankruptcy clause (which would have been directly undermined by Seminole Tribe) and probably would remain unchanged given that Seminole Tribe did not address abrogations under the Fourteenth Amendment. Another bankruptcy court, initially following the Chief Judge's Privileges and Immunities analysis, see In re Headrick, 200 B.R. 963, 967 (Bankr. S.D. Ga. 1996) (citing Southern Star, 190 B.R. 419), later reconsidered its ruling in light of Seminole Tribe but refused to overrule itself. See In re Headrick, 203 B.R. 805, 809 (Bankr. S.D. Ga. 1996) (asserting, against Georgia's claim that "failing to reverse the decision would be a de facto finding that Congress has authority to abrogate the State's immunity under any federal statute," that "the analysis here is limited to the bankruptcy clause of the Constitution," though not stating a single reason why the analysis didn't apply to every Article I power).
305. In fairness to Chief Judge Wilson, I note that his opinion was published in December, 1996, several months prior to the Supreme Court's decision in Seminole Tribe. His analysis, however, did not rely on abrogation under the bankruptcy clause (which would have been directly undermined by Seminole Tribe)
306. U.S. CONST. amend V. The Fifth Amendment is made applicable to the states by the Fourteenth Amendment. See Dolan v. City of Tigard, 512 U.S. 374, 383 (1994) (citing Chicago B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239 (1897)).
307. U.S. CONST. amend V. The Fifth Amendment is made applicable to the states by the Fourteenth Amendment. See Dolan v. City of Tigard, 512 U.S. 374, 383 (1994) (citing Chicago B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239 (1897)).
308. See U.S. CONST. amend. XI; Nevada v. Hall, 440 U.S. 410 (1979). Similarly, the state cannot exert sovereign immunity in state court against a takings claim. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (stating that the Fifth Amendment "dictates the remedy for interference with property rights amounting to a taking," namely money for the loss of value).
309. See U.S. CONST. amend. XI; Nevada v. Hall, 440 U.S. 410 (1979). Similarly, the state cannot exert sovereign immunity in state court against a takings claim. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (stating that the Fifth Amendment "dictates the remedy for interference with property rights amounting to a taking," namely money for the loss of value).
310. See, e.g., Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 803 (Fed. Cir. 1993); see also Daniel W. Kilduff, Tort, Taking, or Both?, 42 FED. LAW. 25, 28 (May 1995) ("It is a bedrock principle of Fifth Amendment jurisprudence that a taking claim must be predicated on an authorized government act."). Inexplicably, some of these cases suggest that a victim of government negligence whose property is thereby injured could state a due process claim. See, e.g., Tabb, 10 F.3d at 803 ("A mistake may give rise to a due process claim. . . ."); Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 409 n.9 (1994) (stating that where government officers made "a mistake," the plaintiff's claim "may in fact be a due process claim"). As the Supreme Court made clear before both of those cases were decided, however, "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 328 (1986).
311. See, e.g., Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 803 (Fed. Cir. 1993); see also Daniel W. Kilduff, Tort, Taking, or Both?, 42 FED. LAW. 25, 28 (May 1995) ("It is a bedrock principle of Fifth Amendment jurisprudence that a taking claim must be predicated on an authorized government act."). Inexplicably, some of these cases suggest that a victim of government negligence whose property is thereby injured could state a due process claim. See, e.g., Tabb, 10 F.3d at 803 ("A mistake may give rise to a due process claim. . . ."); Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 409 n.9 (1994) (stating that where government officers made "a mistake," the plaintiff's claim "may in fact be a due process claim"). As the Supreme Court made clear before both of those cases were decided, however, "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 328 (1986).
312. See, e.g., Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 803 (Fed. Cir. 1993); see also Daniel W. Kilduff, Tort, Taking, or Both?, 42 FED. LAW. 25, 28 (May 1995) ("It is a bedrock principle of Fifth Amendment jurisprudence that a taking claim must be predicated on an authorized government act."). Inexplicably, some of these cases suggest that a victim of government negligence whose property is thereby injured could state a due process claim. See, e.g., Tabb, 10 F.3d at 803 ("A mistake may give rise to a due process claim. . . ."); Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 409 n.9 (1994) (stating that where government officers made "a mistake," the plaintiff's claim "may in fact be a due process claim"). As the Supreme Court made clear before both of those cases were decided, however, "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 328 (1986).
313. See, e.g., Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 803 (Fed. Cir. 1993); see also Daniel W. Kilduff, Tort, Taking, or Both?, 42 FED. LAW. 25, 28 (May 1995) ("It is a bedrock principle of Fifth Amendment jurisprudence that a taking claim must be predicated on an authorized government act."). Inexplicably, some of these cases suggest that a victim of government negligence whose property is thereby injured could state a due process claim. See, e.g., Tabb, 10 F.3d at 803 ("A mistake may give rise to a due process claim. . . ."); Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 409 n.9 (1994) (stating that where government officers made "a mistake," the plaintiff's claim "may in fact be a due process claim"). As the Supreme Court made clear before both of those cases were decided, however, "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 328 (1986).
314. See, e.g., Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 803 (Fed. Cir. 1993); see also Daniel W. Kilduff, Tort, Taking, or Both?, 42 FED. LAW. 25, 28 (May 1995) ("It is a bedrock principle of Fifth Amendment jurisprudence that a taking claim must be predicated on an authorized government act."). Inexplicably, some of these cases suggest that a victim of government negligence whose property is thereby injured could state a due process claim. See, e.g., Tabb, 10 F.3d at 803 ("A mistake may give rise to a due process claim. . . ."); Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 409 n.9 (1994) (stating that where government officers made "a mistake," the plaintiff's claim "may in fact be a due process claim"). As the Supreme Court made clear before both of those cases were decided, however, "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 328 (1986).
315. Clark v. United States, 19 Cl. Ct. 220, 222-23 (1990).
316. 28 U.S.C. §§ 1346(b), 2671-2689 (1994).
317. See id. § 1491(a)(1) (1994) (providing the court with jurisdiction over "any claim against the United States founded upon the Constitution").
318. See generally HART & WECHSLER, supra note 4, at 1028-1036 (discussing the differences between the Tucker Act, the statute establishing the jurisdiction of the Court of Federal Claims, and the Federal Tort Claims Act).
319. 28 U.S.C. § 1491(a)(1).
320. See Kilduff, supra note 195, at 27.
321. See, e.g., Tabb Lakes, 10 F.3d at 802 (Fed. Cir. 1993) (stating that a suit before the Court of Federal Claims "does not lie for an executive taking not authorized by Congress, expressly or by implication" and that "[a] mistake may [not] give rise to a . . . takings claim") (quoting NBH Land Co. v. United States, 576 F.2d 317, 319 (Ct. Cl. 1978)); Florida Rock Indus. v. United States, 791 F.2d 893 (Fed. Cir. 1986) ("[T]he Tucker Act suit in the [Court of Federal Claims] is not, however, available to recover damages for unauthorized acts of government officials.").
322. See, e.g., Tabb Lakes, 10 F.3d at 802 (Fed. Cir. 1993) (stating that a suit before the Court of Federal Claims "does not lie for an executive taking not authorized by Congress, expressly or by implication" and that "[a] mistake may [not] give rise to a . . . takings claim") (quoting NBH Land Co. v. United States, 576 F.2d 317, 319 (Ct. Cl. 1978)); Florida Rock Indus. v. United States, 791 F.2d 893 (Fed. Cir. 1986) ("[T]he Tucker Act suit in the [Court of Federal Claims] is not, however, available to recover damages for unauthorized acts of government officials.").
323. See, e.g., Tabb Lakes, 10 F.3d at 802 (Fed. Cir. 1993) (stating that a suit before the Court of Federal Claims "does not lie for an executive taking not authorized by Congress, expressly or by implication" and that "[a] mistake may [not] give rise to a . . . takings claim") (quoting NBH Land Co. v. United States, 576 F.2d 317, 319 (Ct. Cl. 1978)); Florida Rock Indus. v. United States, 791 F.2d 893 (Fed. Cir. 1986) ("[T]he Tucker Act suit in the [Court of Federal Claims] is not, however, available to recover damages for unauthorized acts of government officials.").
324. See Clark, 19 Cl. Ct. at 223 ("The two theories are incompatible only because of the jurisdictional split between the Claims Court and the district courts. . . .").
325. 919 F.2d 726 (Fed. Cir. 1990).
326. See id. at 727.
327. Id. at 728. Jacobs did, in fact, pursue the takings claim in Florida's courts. In the appeal of his case, the Florida Supreme Court ruled that Jacobs, as a patent holder, may assert a takings claim in state court. See Jacobs Wind Elec. Co., Inc. v. Dep't of Transp., 626 So. 2d 1333 (Fla. 1993).
328. Id. at 728. Jacobs did, in fact, pursue the takings claim in Florida's courts. In the appeal of his case, the Florida Supreme Court ruled that Jacobs, as a patent holder, may assert a takings claim in state court. See Jacobs Wind Elec. Co., Inc. v. Dep't of Transp., 626 So. 2d 1333 (Fla. 1993).
329. Tabb Lakes, 10 F.3d at 803.
330. United States v. Lee, 106 U.S. (16 Otto.) 196, 219 (1882).
331. The one check on this system is suits against the officers in their personal capacities, though this check is weak given the protection of qualified immunity for innocent mistakes. See supra notes 105-115 and accompanying text.
332. As I discuss below, Illinois has waived its immunity from tort suits in its own courts. See infra note 322 and accompanying text.
333. Roth v. Pritikin, 710 F.2d 934, 939 (2d Cir. 1983); accord Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04 (1984) (holding that trade secrets are property protected by the Takings Clause). Since patents are also considered property for purposes of the Fifth Amendment, see, e.g., Jacobs Wind, 919 F.2d at 728, I will cite to cases discussing patents and cases discussing copyrights interchangeably.
334. Roth v. Pritikin, 710 F.2d 934, 939 (2d Cir. 1983); accord Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04 (1984) (holding that trade secrets are property protected by the Takings Clause). Since patents are also considered property for purposes of the Fifth Amendment, see, e.g., Jacobs Wind, 919 F.2d at 728, I will cite to cases discussing patents and cases discussing copyrights interchangeably.
335. Roth v. Pritikin, 710 F.2d 934, 939 (2d Cir. 1983); accord Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04 (1984) (holding that trade secrets are property protected by the Takings Clause). Since patents are also considered property for purposes of the Fifth Amendment, see, e.g., Jacobs Wind, 919 F.2d at 728, I will cite to cases discussing patents and cases discussing copyrights interchangeably.
336. Hughes Aircraft Co. v. United States, 86 F.3d 1566, 1571 (Fed. Cir. 1996) (patent); see also Leesona Corp. v. United States, 599 F.2d 958, 964 (Ct. Cl. 1979) (patent).
337. Hughes Aircraft Co. v. United States, 86 F.3d 1566, 1571 (Fed. Cir. 1996) (patent); see also Leesona Corp. v. United States, 599 F.2d 958, 964 (Ct. Cl. 1979) (patent).
338. Motorola, Inc. v. United States, 729 F.2d 765, 768 (Fed. Cir. 1984) (patent). This is likely the reason why the Copyright Act's prohibition on a government body's seizing of the "rights of ownership" of a copyright does not apply to government infringement of a copyright. See 17 U.S.C. § 201(e) (1993).
339. Motorola, Inc. v. United States, 729 F.2d 765, 768 (Fed. Cir. 1984) (patent). This is likely the reason why the Copyright Act's prohibition on a government body's seizing of the "rights of ownership" of a copyright does not apply to government infringement of a copyright. See 17 U.S.C. § 201(e) (1993).
340. 28 U.S.C. § 1338(a) (1994).
341. See 17 U.S.C. § 301 (1994).
342. Roberta Rosenthal Kwall, Governmental Use of Copyrighted Property: The Sovereign's Prerogative, 67 TEX. L. REV. 685, 765 (1989). Professor Kwall then argued that Congress and the Court should empower the federal courts to hear takings/infringement suits against states, apparently relying on her belief that the Court would allow abrogation of the Eleventh Amendment in the then-upcoming Union Gas case. See id. at 767-68. Seminole Tribe obviously eviscerated her position.
343. Roberta Rosenthal Kwall, Governmental Use of Copyrighted Property: The Sovereign's Prerogative, 67 TEX. L. REV. 685, 765 (1989). Professor Kwall then argued that Congress and the Court should empower the federal courts to hear takings/infringement suits against states, apparently relying on her belief that the Court would allow abrogation of the Eleventh Amendment in the then-upcoming Union Gas case. See id. at 767-68. Seminole Tribe obviously eviscerated her position.
344. see First English, 482 U.S. at 315 ("[C]laims for just compensation are grounded in the Constitution itself: . . . 'The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that the condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. . . . It rested upon the Fifth Amendment. Statutory recognition was not necessary. . . . The suits were thus founded upon the Constitution of the United States.'") (quoting Jacobs v. United States, 290 U.S. 13, 16 (1933)).
345. see First English, 482 U.S. at 315 ("[C]laims for just compensation are grounded in the Constitution itself: . . . 'The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that the condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. . . . It rested upon the Fifth Amendment. Statutory recognition was not necessary. . . . The suits were thus founded upon the Constitution of the United States.'") (quoting Jacobs v. United States, 290 U.S. 13, 16 (1933)).
346. See, e.g., Testa v. Katt, 330 U.S. 386 (1947); see also supra note 194 and accompanying text.
347. 28 U.S.C. § 1338(a) (1994).
348. See American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916) (Holmes J.) ("A suit arises under the law that creates the cause of action."); cf. HART & WECHSLER, supra note 4, at 926-27 ("It is equally clear that if a patentee's action is based on rights created [outside the patent statute], the case is not one "arising under" [the patent] law[s].").
349. See American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916) (Holmes J.) ("A suit arises under the law that creates the cause of action."); cf. HART & WECHSLER, supra note 4, at 926-27 ("It is equally clear that if a patentee's action is based on rights created [outside the patent statute], the case is not one "arising under" [the patent] law[s].").
350. See, e.g., Jacobs, 919 F.2d at 728 ("Jacobs also may assert a 'takings' claim [for patent infringement] against the state under the Fifth and Fourteenth Amendments."); Jacobs, 626 So. 2d at 1336 (holding, in the suit filed pursuant to the court's advice in Jacobs, 919 F.2d 726, that the state courts had jurisdiction to hear Jacobs's takings claim).
351. See, e.g., Jacobs, 919 F.2d at 728 ("Jacobs also may assert a 'takings' claim [for patent infringement] against the state under the Fifth and Fourteenth Amendments."); Jacobs, 626 So. 2d at 1336 (holding, in the suit filed pursuant to the court's advice in Jacobs, 919 F.2d 726, that the state courts had jurisdiction to hear Jacobs's takings claim).
352. See, e.g., Jacobs, 919 F.2d at 728 ("Jacobs also may assert a 'takings' claim [for patent infringement] against the state under the Fifth and Fourteenth Amendments."); Jacobs, 626 So. 2d at 1336 (holding, in the suit filed pursuant to the court's advice in Jacobs, 919 F.2d 726, that the state courts had jurisdiction to hear Jacobs's takings claim).
353. "The connotation 'qui tam' is derived from the Latin phrase 'qui tam pro domino rege quam pro se ipso in hac parte sequitur,' which means 'who brings the action for the king as well as for himself.'" United States ex rel. Stillwell v. Hughes Helicopters, Inc., 714 F. Supp. 1084, 1086 n.1 (C.D. Cal. 1989) (citing W. BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 160 (1768)).
354. "The connotation 'qui tam' is derived from the Latin phrase 'qui tam pro domino rege quam pro se ipso in hac parte sequitur,' which means 'who brings the action for the king as well as for himself.'" United States ex rel. Stillwell v. Hughes Helicopters, Inc., 714 F. Supp. 1084, 1086 n.1 (C.D. Cal. 1989) (citing W. BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 160 (1768)).
355. Jonathan R. Siegel, The Hidden Source of Congress's Power to Abrogate State Sovereign Immunity, 73 TEX. L. REV. 539 (1995). It also appears to be the conclusion of at least one Court of Appeals. See United States ex rel. Berge v. Board of Trustees of the Univ. of Alabama, 104 F.3d 1453, 1458 (4th Cir. 1997) (stating that the Eleventh Amendment is a "non-issue" in the qui tam context), cert. denied by 118 S. Ct. 301 (1997).
356. Jonathan R. Siegel, The Hidden Source of Congress's Power to Abrogate State Sovereign Immunity, 73 TEX. L. REV. 539 (1995). It also appears to be the conclusion of at least one Court of Appeals. See United States ex rel. Berge v. Board of Trustees of the Univ. of Alabama, 104 F.3d 1453, 1458 (4th Cir. 1997) (stating that the Eleventh Amendment is a "non-issue" in the qui tam context), cert. denied by 118 S. Ct. 301 (1997).
357. Jonathan R. Siegel, The Hidden Source of Congress's Power to Abrogate State Sovereign Immunity, 73 TEX. L. REV. 539 (1995). It also appears to be the conclusion of at least one Court of Appeals. See United States ex rel. Berge v. Board of Trustees of the Univ. of Alabama, 104 F.3d 1453, 1458 (4th Cir. 1997) (stating that the Eleventh Amendment is a "non-issue" in the qui tam context), cert. denied by 118 S. Ct. 301 (1997).
358. See Siegel, supra note 222, at 540.
359. See id. at 539.
360. Id. at 552 (citing United States v. Texas, 143 U.S. 621, 646 (1892)).
361. Damages for copyright infringement are currently considered remedial rather than punitive. See Raydiola Music v. Revelation Rob, Inc., 729 F. Supp 369, 374 (D. Del. 1990) ("[A suit for damages for copyright infringement] has nothing in the nature of a qui tam about it, and we think it provides for the recovery of neither a penalty nor a forfeiture.") (quoting Brady v. Daly, 175 U.S. 148, 154-55 (1899)).
362. Damages for copyright infringement are currently considered remedial rather than punitive. See Raydiola Music v. Revelation Rob, Inc., 729 F. Supp 369, 374 (D. Del. 1990) ("[A suit for damages for copyright infringement] has nothing in the nature of a qui tam about it, and we think it provides for the recovery of neither a penalty nor a forfeiture.") (quoting Brady v. Daly, 175 U.S. 148, 154-55 (1899)).
363. See Siegel, supra note 222, at 552.
364. No such statute now exists, and the broadest qui tam provision, the False Claims Act, 31 U.S.C. § 3730 (1996), cannot be used to "redress a private grievance" between a copyright holder and a copyright infringer in the guise of "purportedly attempting to vindicate the rights of the United States." See United States ex rel. Herbert v. National Academy of Sciences, No. CIV.A.90-2568, 1992 WL 247587, at *2, 5 (D.D.C. Sept. 15, 1992). The First Congress did pass a copyright qui tam statute which allowed suit by the injured copyright owner, see Copyright Act of May 31, 1790, ch. 15, § 2, 1 Stat. 124, 124-125, cited in Dowling v. United States, 473 U.S. 207, 222 n.14 (1985), but it was later repealed. See Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341, 342 n.3 (1989).
365. No such statute now exists, and the broadest qui tam provision, the False Claims Act, 31 U.S.C. § 3730 (1996), cannot be used to "redress a private grievance" between a copyright holder and a copyright infringer in the guise of "purportedly attempting to vindicate the rights of the United States." See United States ex rel. Herbert v. National Academy of Sciences, No. CIV.A.90-2568, 1992 WL 247587, at *2, 5 (D.D.C. Sept. 15, 1992). The First Congress did pass a copyright qui tam statute which allowed suit by the injured copyright owner, see Copyright Act of May 31, 1790, ch. 15, § 2, 1 Stat. 124, 124-125, cited in Dowling v. United States, 473 U.S. 207, 222 n.14 (1985), but it was later repealed. See Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341, 342 n.3 (1989).
366. No such statute now exists, and the broadest qui tam provision, the False Claims Act, 31 U.S.C. § 3730 (1996), cannot be used to "redress a private grievance" between a copyright holder and a copyright infringer in the guise of "purportedly attempting to vindicate the rights of the United States." See United States ex rel. Herbert v. National Academy of Sciences, No. CIV.A.90-2568, 1992 WL 247587, at *2, 5 (D.D.C. Sept. 15, 1992). The First Congress did pass a copyright qui tam statute which allowed suit by the injured copyright owner, see Copyright Act of May 31, 1790, ch. 15, § 2, 1 Stat. 124, 124-125, cited in Dowling v. United States, 473 U.S. 207, 222 n.14 (1985), but it was later repealed. See Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341, 342 n.3 (1989).
367. No such statute now exists, and the broadest qui tam provision, the False Claims Act, 31 U.S.C. § 3730 (1996), cannot be used to "redress a private grievance" between a copyright holder and a copyright infringer in the guise of "purportedly attempting to vindicate the rights of the United States." See United States ex rel. Herbert v. National Academy of Sciences, No. CIV.A.90-2568, 1992 WL 247587, at *2, 5 (D.D.C. Sept. 15, 1992). The First Congress did pass a copyright qui tam statute which allowed suit by the injured copyright owner, see Copyright Act of May 31, 1790, ch. 15, § 2, 1 Stat. 124, 124-125, cited in Dowling v. United States, 473 U.S. 207, 222 n.14 (1985), but it was later repealed. See Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341, 342 n.3 (1989).
368. Siegel, supra note 222, at 556.
369. Id. at 567.
370. Aaron's involvement in the suit, as the copyright holder, staves off an Article III standing challenge to which a "traditional" qui tam suit (i.e. one not involving a directly injured party such as those brought under the False Claims Act) could fall victim. See Caminker, supra note 228, at 380-87 (discussing the problem); United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (4th Cir. 1993) (holding that the False Claims Act's qui tam provision did not violate Article III's standing requirements).
371. 501 U.S. 775, 785-86 (1991).
372. Id. at 785. In its reliance on "responsible federal officers," this sentiment seems related to the one underlying Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) - a reliance on the political process protections of federalism.
373. Id. at 785. In its reliance on "responsible federal officers," this sentiment seems related to the one underlying Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) - a reliance on the political process protections of federalism.
374. Siegel, supra note 222, at 568.
375. 512 U.S. 186 (1994).
376. See id. at 188.
377. See id. at 191.
378. The Court assumed for the sake of argument that this premise was correct. See id. at 199.
379. See id.
380. Id. at 199-200.
381. Siegel, supra note 222, at 541-42.
382. I thus disagree with Professor Meltzer's assessment that Siegel's proposal, at the very least, "highlight[s] the difficulties of the prevailing interpretation of the Eleventh Amendment." Meltzer, supra note 70, at 56. In my view - and in the Court's view as evidenced by West Lynn - Siegel's proposal merely illustrates that clever syllogisms cannot overcome constitutional prohibitions.
383. See Seminole Tribe, 116 S. Ct. at 1125.
384. Accordingly, application of the "false marking" qui tam provision of the patent statutes, see 35 U.S.C. § 292(b) (1994) ("Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States."), to suits against states would violate the Eleventh Amendment, at least absent a determination that the patent abrogation, see 35 U.S.C. § 296 (1994), is a valid exercise of Congress's Fourteenth Amendment power. See supra notes 154-179 and accompanying text.
385. Accordingly, application of the "false marking" qui tam provision of the patent statutes, see 35 U.S.C. § 292(b) (1994) ("Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States."), to suits against states would violate the Eleventh Amendment, at least absent a determination that the patent abrogation, see 35 U.S.C. § 296 (1994), is a valid exercise of Congress's Fourteenth Amendment power. See supra notes 154-179 and accompanying text.
386. Very generally speaking, the role of the U.S. Trustee under current law is to select and supervise the ordinary bankruptcy trustees. See DANIEL R. COWANS, BANKRUPTCY LAW AND PRACTICE § 2.10 (6th ed. 1994).
387. The job of an ordinary trustee is to represent the creditors at the bankruptcy proceeding, so as to avoid the "multiple and often wasteful and competitive efforts of individual creditors." Id. § 2.7. The trustee also owes a fiduciary duty to the debtor, however. See id.
388. The job of an ordinary trustee is to represent the creditors at the bankruptcy proceeding, so as to avoid the "multiple and often wasteful and competitive efforts of individual creditors." Id. § 2.7. The trustee also owes a fiduciary duty to the debtor, however. See id.
389. See Harvard Professor Offers Possible Response to Seminole, 29 No. 9 BANKR. CT. DEC. (LRP) 6 (1996) [hereinafter Harvard Professor]; Meltzer, supra note 70, at 56.
390. See Harvard Professor Offers Possible Response to Seminole, 29 No. 9 BANKR. CT. DEC. (LRP) 6 (1996) [hereinafter Harvard Professor]; Meltzer, supra note 70, at 56.
391. See 28 U.S.C. § 586 (1994) (listing the duties of the U.S. Trustee).
392. Professor Meltzer's proposal may escape my first criticism of Siegel's argument (concerning delegation to private citizens of the United States's power to sue states in federal court) due to the fact that the U.S. Trustees are federal officials. Whether or not it does so would likely depend on what sort of role the U.S. Trustee would play in the decision to file and litigate the suit. See Blatchford, 501 U.S. at 785 (discussing "consent . . . to suit by the United States - at the instance and under the control of responsible federal officers"). Failure to give the U.S. Trustee a substantive role in the litigation might also render the scheme an Article II violation. Cf. United States ex rel. Taxpayers Against Fraud v. General Elec. Co., 41 F.3d 1032, 1041 (6th Cir. 1994) (holding that the multiple provisions of the False Claims Act concerning qui tam suits which "maintain the primacy of the Executive Branch in prosecuting false-claims actions" save the Act from an Article II challenge).
393. Professor Meltzer's proposal may escape my first criticism of Siegel's argument (concerning delegation to private citizens of the United States's power to sue states in federal court) due to the fact that the U.S. Trustees are federal officials. Whether or not it does so would likely depend on what sort of role the U.S. Trustee would play in the decision to file and litigate the suit. See Blatchford, 501 U.S. at 785 (discussing "consent . . . to suit by the United States - at the instance and under the control of responsible federal officers"). Failure to give the U.S. Trustee a substantive role in the litigation might also render the scheme an Article II violation. Cf. United States ex rel. Taxpayers Against Fraud v. General Elec. Co., 41 F.3d 1032, 1041 (6th Cir. 1994) (holding that the multiple provisions of the False Claims Act concerning qui tam suits which "maintain the primacy of the Executive Branch in prosecuting false-claims actions" save the Act from an Article II challenge).
394. See Siegel, supra note 222, at 551.
395. See, e.g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 96 (1982) (White, J., dissenting) ("[T]he great bulk of creditor claims [in a bankruptcy proceeding] are claims that have accrued under state law prior to bankruptcy - claims for goods sold, wages, rent, utilities, and the like.").
396. Professor Meltzer agrees that the estate, not a trustee, is ordinarily the real party in interest in the bankruptcy proceeding. See Harvard Professor, supra note 247. And, generally speaking, bankruptcy trustees are "not an arm of the government." California State Bd. of Equalization v. Sierra Summit, Inc., 490 U.S. 844, 849 (1989).
397. One bankruptcy court examined and rejected as "an implausible construction of the role of the trustee" the possibility that an ordinary bankruptcy trustee acts as a federal official. Lazar, 200 B.R. at 376. Another bankruptcy court opined, in dictum, that Professor Meltzer's idea of using the U.S. Trustee is "equally implausible." In re York-Hannover, Developments, Inc. 201 B.R. 137, 142 n.8 (Bankr. E.D.N.C. 1996) (citing Harvard Professor, supra note 247).
398. One bankruptcy court examined and rejected as "an implausible construction of the role of the trustee" the possibility that an ordinary bankruptcy trustee acts as a federal official. Lazar, 200 B.R. at 376. Another bankruptcy court opined, in dictum, that Professor Meltzer's idea of using the U.S. Trustee is "equally implausible." In re York-Hannover, Developments, Inc. 201 B.R. 137, 142 n.8 (Bankr. E.D.N.C. 1996) (citing Harvard Professor, supra note 247).
399. 108 U.S. 76 (1883).
400. See id. at 78.
401. See, e.g., Colorado v. New Mexico, 459 U.S. 176, 182 n.9 (1982).
402. New Hampshire, 108 U.S. at 89.
403. Siegel, supra note 222, at 554.
404. In fact, Siegel specifically points out that "[t]he one Article I congressional power that would not fit into the scheme suggested here is the bankruptcy power. Congress might wish that it could give bankruptcy courts the same power over states as they have over any other creditors in a bankruptcy proceeding. However, if a state is simply the creditor of the bankrupt party, it has not thereby violated any of his or her federal rights. There would therefore be no federal cause of action against the state that the United States could pursue by engaging the services of a private attorney." Siegel, supra note 222, at 569 n.146. Professor Meltzer responds simply that "since the bankruptcy power authorizes federal legislation governing the administration of state law claims in bankruptcy, I don't see any distinctive constitutional difficulties in this area." Meltzer, supra note 70, at 57 n.264. This argument, however, conflates Congress's power to allow federal courts to hear bankruptcy cases with Congress's ability to give the United States a substantive stake in the state law claims composing a bankruptcy case, and this stake is the very thing on which Siegel's proposal depends.
405. In fact, Siegel specifically points out that "[t]he one Article I congressional power that would not fit into the scheme suggested here is the bankruptcy power. Congress might wish that it could give bankruptcy courts the same power over states as they have over any other creditors in a bankruptcy proceeding. However, if a state is simply the creditor of the bankrupt party, it has not thereby violated any of his or her federal rights. There would therefore be no federal cause of action against the state that the United States could pursue by engaging the services of a private attorney." Siegel, supra note 222, at 569 n.146. Professor Meltzer responds simply that "since the bankruptcy power authorizes federal legislation governing the administration of state law claims in bankruptcy, I don't see any distinctive constitutional difficulties in this area." Meltzer, supra note 70, at 57 n.264. This argument, however, conflates Congress's power to allow federal courts to hear bankruptcy cases with Congress's ability to give the United States a substantive stake in the state law claims composing a bankruptcy case, and this stake is the very thing on which Siegel's proposal depends.
406. The Court seemed to contemplate the possibility of this type of enactment in the Eleventh Amendment context in Atascadero, 473 U.S. at 246-47 ("[T]he mere receipt of federal funds cannot establish that a State has consented to suit in federal court. . . . The Act likewise falls far short of manifesting a clear intent to condition participation in the programs funded under the Act on a State's consent to waive its constitutional immunity.").
407. 483 U.S. 203 (1987).
408. See id. at 205.
409. 297 U.S. 1 (1936).
410. See Dole, 483 U.S. at 207 (citing Butler, 297 U.S. at 65).
411. See Dole, 483 U.S. at 207 (citing Butler, 297 U.S. at 65).
412. See id. at 207-08.
413. Id. at 207.
414. Id. (citing Helvering v. Davis, 301 U.S. 619, 645 (1937)).
415. Id. (citing Helvering v. Davis, 301 U.S. 619, 645 (1937)).
416. Id. at 208.
417. "Continued state immunity from damage suits will result in such adverse consequences as increases in the prices charged non-State users, diminution in the economic incentive to create new works, and decline in the quality of published works. . . . Small companies in particular could be put out of business or at a minimum, be forced to pass the higher costs resulting from lost business to consumers." S. Rep. No. 101-305 (discussing the Copyright Office's report on the copyright liability of states).
418. See Dole, 483 U.S. at 207 (citing Pennhurst, 451 U.S. at 17).
419. See Dole, 483 U.S. at 207 (citing Pennhurst, 451 U.S. at 17).
420. See id. at 208.
421. Id.
422. Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911, 1966 (1995).
423. See David E. Engdahl, The Spending Power, 44 DUKE L.J. 1, 62 (1994) (reviewing the caselaw as of 1994). There may be some limit to this, however; as Professor Meltzer points out, it is difficult to imagine a federal expenditure germane to the bankruptcy laws. See Meltzer, supra note 70, at 55.
424. See David E. Engdahl, The Spending Power, 44 DUKE L.J. 1, 62 (1994) (reviewing the caselaw as of 1994). There may be some limit to this, however; as Professor Meltzer points out, it is difficult to imagine a federal expenditure germane to the bankruptcy laws. See Meltzer, supra note 70, at 55.
425. This represents a sizeable amount of money. In fiscal year 1992, for example, Congress funneled over fifteen billion dollars to (public and private) universities for research. See Susan B. Hannah, The Higher Education Act of 1992: Skills, Constraints, and the Politics of Higher Education, 9/19/96 J. HIGHER EDUC. 498 (1996).
426. Congress could not, of course, merely provide that state acceptance of federal research money amounted to consent to suit. See supra notes 128-47 and accompanying text (discussing the recently deceased doctrine of constructive consent).
427. S. Rep. No. 101-305 (discussing the "negative effect on the educational publishing market" caused by a state's ability to freely infringe copyrights and remain immune from suit); John C. Beiter, Recent Development, Copyright Infringement and the Eleventh Amendment: A Doctrine of Unfair Use?, 40 VAND. L. REV. 225, 229 (1987) ("State institutions and their local instrumentalities are prodigious users of copyrighted works. One obvious example is the use of copyrighted textbooks by state schools and universities.") (citations omitted).
428. S. Rep. No. 101-305 (discussing the "negative effect on the educational publishing market" caused by a state's ability to freely infringe copyrights and remain immune from suit); John C. Beiter, Recent Development, Copyright Infringement and the Eleventh Amendment: A Doctrine of Unfair Use?, 40 VAND. L. REV. 225, 229 (1987) ("State institutions and their local instrumentalities are prodigious users of copyrighted works. One obvious example is the use of copyrighted textbooks by state schools and universities.") (citations omitted).
429. See S. Rep. No. 102-280 (1992) ("[T]he current state of the law leaves the protection afforded to patent . . . holders dependent on the status of the infringing party. A public school such as UCLA can sue a private school such as USC for patent infringement, yet USC cannot sue UCLA for the same act. . . . State universities should not have an unjustified advantage in the commercial arena over private universities for funding because of the potential for immunity from patent infringement actions.").
430. See, e.g., S. Rep. No. 101-305 ("States and their instrumentalities routinely seek copyright protection for their own works.").
431. See, e.g., State of Missouri v. United States, 918 F. Supp. 1320, 1333 (1996) (finding Dole satisfied on the grounds that there is "some relationship" between federal highway spending and promoting clean air).
432. See Dole, 483 U.S. at 208.
433. Id. at 210.
434. See supra note 118 and accompanying text.
435. Congress might also be able to create a legislative (i.e. non-Article III) tribunal specifically for the purpose of adjudicating claims of copyright and patent infringement against states and their agencies. See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83 (1982) ("[W]hen Congress creates a statutory right, it clearly has the discretion, in defining that right, . . .[to require] that persons seeking to vindicate that right must do so before particularized tribunals created to perform the specialized adjudicative tasks related to that right."); Commodity Futures Trading Comm'n. v. Schor, 478 U.S. 833 (1986) (upholding the Commission's adjudication of reparations proceedings among commodities brokers against an Article III challenge). Whether the Court would allow this particular evasion of the Eleventh Amendment is unclear. While the text of the Amendment limits only the Article III "Judicial power of the United States," the Court does not always show great fidelity to that text. See supra note 32 and accompanying text; but cf. Nevada v. Hall, 440 U.S. 410 (1979) (holding that the Eleventh Amendment, by its own terms, does not apply to suits in state court). Of course, allowing a citizen to bring a state into an adjudication conducted by a "legislative" court raises the same central Eleventh Amendment concern regarding invasion of the state fisc as any other suit. See supra note 28 and accompanying text.
436. Congress might also be able to create a legislative (i.e. non-Article III) tribunal specifically for the purpose of adjudicating claims of copyright and patent infringement against states and their agencies. See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83 (1982) ("[W]hen Congress creates a statutory right, it clearly has the discretion, in defining that right, . . .[to require] that persons seeking to vindicate that right must do so before particularized tribunals created to perform the specialized adjudicative tasks related to that right."); Commodity Futures Trading Comm'n. v. Schor, 478 U.S. 833 (1986) (upholding the Commission's adjudication of reparations proceedings among commodities brokers against an Article III challenge). Whether the Court would allow this particular evasion of the Eleventh Amendment is unclear. While the text of the Amendment limits only the Article III "Judicial power of the United States," the Court does not always show great fidelity to that text. See supra note 32 and accompanying text; but cf. Nevada v. Hall, 440 U.S. 410 (1979) (holding that the Eleventh Amendment, by its own terms, does not apply to suits in state court). Of course, allowing a citizen to bring a state into an adjudication conducted by a "legislative" court raises the same central Eleventh Amendment concern regarding invasion of the state fisc as any other suit. See supra note 28 and accompanying text.
437. Congress might also be able to create a legislative (i.e. non-Article III) tribunal specifically for the purpose of adjudicating claims of copyright and patent infringement against states and their agencies. See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83 (1982) ("[W]hen Congress creates a statutory right, it clearly has the discretion, in defining that right, . . .[to require] that persons seeking to vindicate that right must do so before particularized tribunals created to perform the specialized adjudicative tasks related to that right."); Commodity Futures Trading Comm'n. v. Schor, 478 U.S. 833 (1986) (upholding the Commission's adjudication of reparations proceedings among commodities brokers against an Article III challenge). Whether the Court would allow this particular evasion of the Eleventh Amendment is unclear. While the text of the Amendment limits only the Article III "Judicial power of the United States," the Court does not always show great fidelity to that text. See supra note 32 and accompanying text; but cf. Nevada v. Hall, 440 U.S. 410 (1979) (holding that the Eleventh Amendment, by its own terms, does not apply to suits in state court). Of course, allowing a citizen to bring a state into an adjudication conducted by a "legislative" court raises the same central Eleventh Amendment concern regarding invasion of the state fisc as any other suit. See supra note 28 and accompanying text.
438. An amendment to the bankruptcy jurisdiction statute would likely not be necessary, as the statute gives the district courts "original but not exclusive jurisdiction" over suits "related to cases under title 11." 28 U.S.C. § 1334(b) (1994). One commentator has pointed out that "Justice Stevens' assertion, in dissent, that 'persons harmed by state violations of federal . . . bankruptcy laws . . . have no remedy' since 'federal courts have exclusive jurisdiction over cases arising under these laws' is based on a misunderstanding of the law." Gibson, supra note 151, at 204 (citing Sanders v. City of Brady, 936 F.2d 212, 218 (5th Cir. 1991) ("[T]he only aspect of the bankruptcy proceeding over which the district courts and their bankruptcy units have exclusive jurisdiction is 'the bankruptcy petition itself.' In other matters arising in or related to title 11 cases, unless the Code provides otherwise, state courts have concurrent jurisdiction. . . .") (citation omitted)).
439. An amendment to the bankruptcy jurisdiction statute would likely not be necessary, as the statute gives the district courts "original but not exclusive jurisdiction" over suits "related to cases under title 11." 28 U.S.C. § 1334(b) (1994). One commentator has pointed out that "Justice Stevens' assertion, in dissent, that 'persons harmed by state violations of federal . . . bankruptcy laws . . . have no remedy' since 'federal courts have exclusive jurisdiction over cases arising under these laws' is based on a misunderstanding of the law." Gibson, supra note 151, at 204 (citing Sanders v. City of Brady, 936 F.2d 212, 218 (5th Cir. 1991) ("[T]he only aspect of the bankruptcy proceeding over which the district courts and their bankruptcy units have exclusive jurisdiction is 'the bankruptcy petition itself.' In other matters arising in or related to title 11 cases, unless the Code provides otherwise, state courts have concurrent jurisdiction. . . .") (citation omitted)).
440. See, e.g., Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 230, 231 n.7 (1964); THE FEDERALIST No. 43 (James Madison); Peter L. Felcher, Subject Matter of Copyright and Jurisdiction, 249 PLI/PAT 7, *63 (1988).
441. See, e.g., Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 230, 231 n.7 (1964); THE FEDERALIST No. 43 (James Madison); Peter L. Felcher, Subject Matter of Copyright and Jurisdiction, 249 PLI/PAT 7, *63 (1988).
442. See, e.g., Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 230, 231 n.7 (1964); THE FEDERALIST No. 43 (James Madison); Peter L. Felcher, Subject Matter of Copyright and Jurisdiction, 249 PLI/PAT 7, *63 (1988).
443. See Goldstein v. California, 412 U.S. 546, 555 (1973); Felcher, supra note 286, at *65.
444. See Goldstein v. California, 412 U.S. 546, 555 (1973); Felcher, supra note 286, at *65.
445. This would require an amendment to 28 U.S.C. § 1338(a).
446. State judges are not wholly incompetent to deal with copyright and patent issues. See, e.g., Lear, Inc. v. Adkins, 395 U.S. 653 (1969) (holding that a state court must consider a patent's validity before deciding whether a breach of an agreement occurred); HART & WECHSLER, supra note 4, at 927 (discussing the "wide power of state courts to pass on 'patent questions'"); Beiter, supra note 277, at 268 & n.316.
447. State judges are not wholly incompetent to deal with copyright and patent issues. See, e.g., Lear, Inc. v. Adkins, 395 U.S. 653 (1969) (holding that a state court must consider a patent's validity before deciding whether a breach of an agreement occurred); HART & WECHSLER, supra note 4, at 927 (discussing the "wide power of state courts to pass on 'patent questions'"); Beiter, supra note 277, at 268 & n.316.
448. State judges are not wholly incompetent to deal with copyright and patent issues. See, e.g., Lear, Inc. v. Adkins, 395 U.S. 653 (1969) (holding that a state court must consider a patent's validity before deciding whether a breach of an agreement occurred); HART & WECHSLER, supra note 4, at 927 (discussing the "wide power of state courts to pass on 'patent questions'"); Beiter, supra note 277, at 268 & n.316.
449. See 28 U.S.C. § 1295 (1994).
450. The Constitution does not directly address the propriety of a lower federal court hearing an appeal from a state court, and the usual practice today is for the Supreme Court to have exclusive jurisdiction over such appeals. But the Founding Fathers certainly contemplated such a role for the lower courts: Alexander Hamilton, noting that Article III vests "the JUDICIAL POWER" in both the Supreme Court and in those lower courts that Congress chooses to establish, "perceive[d] . . . no impediment" to this arrangement, which he argued would leave "the state tribunals . . . with a more entire charge of federal causes. . . ." THE FEDERALIST No. 82 (Alexander Hamilton). Further, the Eleventh Amendment would not bar the appeal, since an appeal is not a suit "commenced" or "prosecuted" as the Amendment uses those terms. See supra note 24 and accompanying text.
451. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 816 (1986) ("Petitioner's concern about the uniformity of interpretation, moreover, is considerably mitigated by the fact that, even if there is no original district court jurisdiction for these kinds of action, this Court retains power to review the decision. . . .").
452. See, e.g., S. Rep. 102-280 ("To promote innovation, the Patent Code . . . must be applied uniformly [to both state and non-state infringers].").
453. 28 U.S.C. § 1441 (1994).
454. See id. §§ 1441(b), 1447(c) (1994) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."); Estate of Porter v. State of Illinois, 36 F.3d 684, 690-691 (7th Cir. 1994) (holding that the district court erred in refusing to remand a claim previously removed to federal court but barred by the Eleventh Amendment).
455. See id. §§ 1441(b), 1447(c) (1994) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."); Estate of Porter v. State of Illinois, 36 F.3d 684, 690-691 (7th Cir. 1994) (holding that the district court erred in refusing to remand a claim previously removed to federal court but barred by the Eleventh Amendment).
456. See supra notes 118-122 and accompanying text; see also Porter, 36 F.3d at 690-691 (holding that removal by the Illinois Attorney General, who was not authorized by statute to waive Illinois's immunity, was not an effective consent to suit in federal court).
457. See Seminole Tribe, 116 S. Ct. at 1131 n.14 ("[T]his Court is empowered to review a question of federal law arising from a state court decision where a State has consented to suit.") (citing Cohens, 19 U.S. (6 Wheat) 264 (1821)).
458. See Seminole Tribe, 116 S. Ct. at 1131 n.14 ("[T]his Court is empowered to review a question of federal law arising from a state court decision where a State has consented to suit.") (citing Cohens, 19 U.S. (6 Wheat) 264 (1821)).
459. "The suability of a state, without its consent, was a thing unknown to the law. . . . 'It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission.'" Hans v. Louisiana, 134 U.S. 1, 16, 17 (1890) (quoting Beers v. Arkansas, 61 U.S. (20 How.) 527, 529 (1857)).
460. "The suability of a state, without its consent, was a thing unknown to the law. . . . 'It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission.'" Hans v. Louisiana, 134 U.S. 1, 16, 17 (1890) (quoting Beers v. Arkansas, 61 U.S. (20 How.) 527, 529 (1857)).
461. Seminole Tribe, 116 S. Ct. at 1172 n.52 (Souter, J., dissenting).
462. One possible factor which does not inform this specific discussion is Section Five of the Fourteenth Amendment. Fitzpatrick's authorization of Section Five based abrogation of state sovereign immunity plus Testa v. Katt's, 330 U.S. 386 (1947), insistence that a state court (lacking a valid excuse) must enforce federal law almost certainly gives Congress the power, when acting under Section Five, to abrogate state sovereign immunity in state court. But if Congress has the Section Five power to abrogate state immunity for copyright and patent infringements, it should simply compel the states to defend infringement suits in federal court and leave undisturbed the intellectual property scheme's desirable promotion of expertise and uniformity of decision. See supra notes 285-86 and accompanying text.
463. See supra note 194 and accompanying text. Further, state sovereign immunity from suit in federal court is limited by the fact that a state may be sued there by the United States, by a sister state, or (in a more limited sense) by a citizen employing the fiction of Ex Parte Young. See Nevada v. Hall, 440 U.S. 410, 420 n.19 (1979).
464. See supra notes 32-41, 72 and accompanying text.
465. 440 U.S. 410.
466. See id. at 420-21.
467. Hall held that the sweeping statements concerning state sovereign immunity contained in Hans, see supra note 298 and accompanying text, and other cases were inapplicable to the dispute before it since those statements only "concerned questions of federal-court jurisdiction and the extent to which the States, by ratifying the Constitution and creating federal courts, had authorized suits against themselves in those courts," Hall, 440 U.S. at 420-421, thereby demonstrating that a reading of Hans which views that decision as recognizing or establishing a widely applicable principle of state sovereign immunity is misguided. (One troubling statement made by the Court in Hans which may not be so explained - "The state courts have no power to entertain suits by individuals against a state without its consent," 134 U.S. at 134 - is dicta.) Accordingly, the overbroad statements in Hans and those it relates from the constitutional debates are unpersuasive as reasons against forcing a state court to hear federally created suits against the state.
468. Hall held that the sweeping statements concerning state sovereign immunity contained in Hans, see supra note 298 and accompanying text, and other cases were inapplicable to the dispute before it since those statements only "concerned questions of federal-court jurisdiction and the extent to which the States, by ratifying the Constitution and creating federal courts, had authorized suits against themselves in those courts," Hall, 440 U.S. at 420-421, thereby demonstrating that a reading of Hans which views that decision as recognizing or establishing a widely applicable principle of state sovereign immunity is misguided. (One troubling statement made by the Court in Hans which may not be so explained - "The state courts have no power to entertain suits by individuals against a state without its consent," 134 U.S. at 134 - is dicta.) Accordingly, the overbroad statements in Hans and those it relates from the constitutional debates are unpersuasive as reasons against forcing a state court to hear federally created suits against the state.
469. See Hall, 440 U.S. at 414 ("The doctrine of sovereign immunity is an amalgam of two quite different concepts, one applicable to suits in the sovereign's own courts and the other to suits in the courts of another sovereign."); Idaho v. Coeur d'Alene Tribe of Idaho, 117 S. Ct. 2028, 2036 (1997) (opinion of Kennedy, J., joined by Rehnquist, C.J.) ("[I]t is acknowledged that States have real and vital interests in preferring their own forum in suits brought against them . . . .").
470. See Hall, 440 U.S. at 414 ("The doctrine of sovereign immunity is an amalgam of two quite different concepts, one applicable to suits in the sovereign's own courts and the other to suits in the courts of another sovereign."); Idaho v. Coeur d'Alene Tribe of Idaho, 117 S. Ct. 2028, 2036 (1997) (opinion of Kennedy, J., joined by Rehnquist, C.J.) ("[I]t is acknowledged that States have real and vital interests in preferring their own forum in suits brought against them . . . .").
471. Id.
472. Id. at 418 n.12.
473. See, e.g., ILL. CONST. art. XIII, § 4 ("Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.").
474. U.S. CONST. art. VI, cl. 2; see also Idaho v. Coeur d'Alene Tribe of Idaho, 117 S. Ct. 2028, 2037 (1997) ("It is the right and duty of the States . . . to interpret and to follow the Constitution and all laws enacted pursuant to it . . . .").
475. Hilton v. South Carolina Public Rys. Comm'n., 502 U.S. 197, 207 (1991) ("[W]hen the [clear statement] rule is . . . overcome . . . so that a
476. Hilton v. South Carolina Public Rys. Comm'n., 502 U.S. 197, 207 (1991) ("[W]hen the [clear statement] rule is . . . overcome . . . so that a federal statute does impose liability on the States, the Supremacy Clause makes that statute the law in every State, fully enforceable in state court.") (citing Howlett v. Rose, 496 U.S. 356, 367-68 (1990)).
477. See U.S. Const. art. III, § 1 ("The judicial Power of the United States, shall be vested . . . in such inferior Courts as the Congress may from time to time ordain and establish."); see also HART & WECHSLER, supra note 4, at 472 n.2.
478. 330 U.S. at 392.
479. McKnett v. St. Louis & S.F. Ry., 292 U.S. 230 (1934) (Brandeis, J.).
480. Compare Missouri ex rel. Southern Ry. v. Mayfield, 340 U.S. 1 (1950) (upholding a state court's evenhanded application of the state's doctrine of forum non conveniens), with Howlett v. Rose, 496 U.S. 356 (holding that a state's refusal to enforce 28 U.S.C. § 1983 was not a valid excuse in light of the fact that the state had waived its sovereign immunity from suits enforcing comparable state-law claims).
481. Compare Missouri ex rel. Southern Ry. v. Mayfield, 340 U.S. 1 (1950) (upholding a state court's evenhanded application of the state's doctrine of forum non conveniens), with Howlett v. Rose, 496 U.S. 356 (holding that a state's refusal to enforce 28 U.S.C. § 1983 was not a valid excuse in light of the fact that the state had waived its sovereign immunity from suits enforcing comparable state-law claims).
482. Compare Missouri ex rel. Southern Ry. v. Mayfield, 340 U.S. 1 (1950) (upholding a state court's evenhanded application of the state's doctrine of forum non conveniens), with Howlett v. Rose, 496 U.S. 356 (holding that a state's refusal to enforce 28 U.S.C. § 1983 was not a valid excuse in light of the fact that the state had waived its sovereign immunity from suits enforcing comparable state-law claims).
483. See Monaghan, supra note 3, at 125-26.
484. 496 U.S. 18 (1990).
485. See id. at 21.
486. 115 S. Ct. 547 (1994).
487. Id. at 549; cf. General Oil Co. v. Crain, 209 U.S. 211, 226 (1908) ("If a suit against state officers is precluded in the national courts by the Eleventh Amendment to the Constitution and may be forbidden by a state to its courts . . . an easy way is open to prevent the enforcement of many provisions of the Constitution, and the Fourteenth Amendment, which is directed at state action, could be nullified as to much of its operation."); see also Gibson, supra note 151, at 208 ("Except for those proceedings over which a bankruptcy court has exclusive jurisdiction, the state courts have a coordinate duty to enforce the federal rights against state defendants, notwithstanding any doctrine of sovereign immunity that would otherwise apply in their courts.") (citation omitted).
488. Id. at 549; cf. General Oil Co. v. Crain, 209 U.S. 211, 226 (1908) ("If a suit against state officers is precluded in the national courts by the Eleventh Amendment to the Constitution and may be forbidden by a state to its courts . . . an easy way is open to prevent the enforcement of many provisions of the Constitution, and the Fourteenth Amendment, which is directed at state action, could be nullified as to much of its operation."); see also Gibson, supra note 151, at 208 ("Except for those proceedings over which a bankruptcy court has exclusive jurisdiction, the state courts have a coordinate duty to enforce the federal rights against state defendants, notwithstanding any doctrine of sovereign immunity that would otherwise apply in their courts.") (citation omitted).
489. Id. at 549; cf. General Oil Co. v. Crain, 209 U.S. 211, 226 (1908) ("If a suit against state officers is precluded in the national courts by the Eleventh Amendment to the Constitution and may be forbidden by a state to its courts . . . an easy way is open to prevent the enforcement of many provisions of the Constitution, and the Fourteenth Amendment, which is directed at state action, could be nullified as to much of its operation."); see also Gibson, supra note 151, at 208 ("Except for those proceedings over which a bankruptcy court has exclusive jurisdiction, the state courts have a coordinate duty to enforce the federal rights against state defendants, notwithstanding any doctrine of sovereign immunity that would otherwise apply in their courts.") (citation omitted).
490. There is a real possibility, however, that the Court might treat takings and taxes as different in kind from all other constitutional and statutory violations due to its understanding that in those cases the Constitution itself imposes on the states the obligation to provide a remedy for violations.
491. 705 ILL. COMP. STAT. 505/8 (West 1992) ("The court [of claims] shall have exclusive jurisdiction to hear and determine the following matters: . . . All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit, and all like claims sounding in tort against . . . the Board of Trustees of the University of Illinois . . . .").
492. See, e.g., Store Decor Div. of Jas Int'l., Inc. v. Stylex Worldwide Indus., Ltd., 767 F. Supp. 181, 183 (N.D. Ill. 1991) ("A cause of action for copyright infringement sounds in tort.") (citing Leo Feist, Inc. v. Young, 138 F.2d 972, 975 (7th Cir. 1943)); Muskegon Piston Ring Co. v. Olsen, 307 F.2d 85 (6th Cir. 1962) ("The [patent interference] allegations sound in tort.").
493. See, e.g., Store Decor Div. of Jas Int'l., Inc. v. Stylex Worldwide Indus., Ltd., 767 F. Supp. 181, 183 (N.D. Ill. 1991) ("A cause of action for copyright infringement sounds in tort.") (citing Leo Feist, Inc. v. Young, 138 F.2d 972, 975 (7th Cir. 1943)); Muskegon Piston Ring Co. v. Olsen, 307 F.2d 85 (6th Cir. 1962) ("The [patent interference] allegations sound in tort.").
494. See, e.g., Store Decor Div. of Jas Int'l., Inc. v. Stylex Worldwide Indus., Ltd., 767 F. Supp. 181, 183 (N.D. Ill. 1991) ("A cause of action for copyright infringement sounds in tort.") (citing Leo Feist, Inc. v. Young, 138 F.2d 972, 975 (7th Cir. 1943)); Muskegon Piston Ring Co. v. Olsen, 307 F.2d 85 (6th Cir. 1962) ("The [patent interference] allegations sound in tort.").
495. See Lemelson v. Ampex Corp., 372 F. Supp. 708, 710 n.2 (N.D. Ill. 1974).
496. Seminole Tribe, 116 S. Ct. at 1134 n.1.