Rights, Remedies, and the Impact of State Sovereign Immunity

Rights, Remedies, and the Impact of State Sovereign Immunity
Author: Christopher Shortell
Publisher: State University of New York Press
Total Pages: 230
Release: 2008-06-30
Genre: Political Science
ISBN: 0791478025

The Supreme Court's recent spate of state sovereign immunity rulings have protected states from lawsuits based on federal legislation as diverse as disabilities law, age discrimination, patent and trademark law, and labor standards. But does the doctrine of state sovereign immunity increase state authority? Does it undermine federal antidiscrimination statutes? Is it an effective means to revive a more robust version of federalism, shifting the balance of power toward states and away from the federal government, and if so, what are the costs and implications of such an approach? This book explores these questions through engaging historical case studies and traces the impact of state sovereign immunity on both plaintiffs and states. Demonstrating that the doctrine's primary effect is felt most keenly by the weakest and most politically unpopular individuals, Christopher Shortell's findings challenge arguments from both proponents and opponents of state sovereign immunity.

Remedies against Immunity?

Remedies against Immunity?
Author: Valentina Volpe
Publisher: Springer Nature
Total Pages: 427
Release: 2021-04-08
Genre: Law
ISBN: 3662623048

The open access book examines the consequences of the Italian Constitutional Court’s Judgment 238/2014 which denied the German Republic’s immunity from civil jurisdiction over claims to reparations for Nazi crimes committed during World War II. This landmark decision created a range of currently unresolved legal problems and controversies which continue to burden the political and diplomatic relationship between Germany and Italy. The judgment has wide repercussions for core concepts of international law and for the relationship between different legal orders. The book’s three interlinked legal themes are state immunity, reparation for serious human rights violations and war crimes (including historical ones), and the interaction between international and domestic institutions, notably courts. Besides a meticulous legal analysis of these themes from the perspectives of international law, European law, and domestic law, the book contributes to the civic debate on the issue of war crimes and reparation for the victims of armed conflict. It proposes concrete legal and political solutions to the parties involved for overcoming the present paralysis with a view to a sustainable interstate conflict solution and helps judges directly involved in the pending post-Sentenza reparation cases. After an Introduction (Part I), Part II, Immunity, investigates core international law concepts such as those of pre/post-judgment immunity and international state responsibility. Part III, Remedies, examines the tension between state immunity and the right to remedy and suggests original schemes for solving the conundrum under international law. Part IV adds European Perspectives by showcasing relevant regional examples of legal cooperation and judicial dialogue. Part V, Courts, addresses questions on the role of judges in the areas of immunity and human rights at both the national and international level. Part VI, Negotiations, suggests concrete ways out of the impasse with a forward-looking aspiration. In Part VII, The Past and Future of Remedies, a sitting judge in the Court that decided Sentenza 238/2014 adds some critical reflections on the Judgment. Joseph H. H. Weiler’s Dialogical Epilogue concludes the volume by placing the main findings of the book in a wider European and international law perspective.

Double Immunity

Double Immunity
Author: Aaron Tang
Publisher:
Total Pages: 0
Release: 2013
Genre:
ISBN:

The Rehnquist Court's so-called “Federalism Revolution” has received no shortage of scholarly attention. Under the conventional narrative, the Court pushed back against the encroaching tide of federal power in three spheres: it limited the scope of Congress's Commerce Clause authority, struck down laws infringing upon state sovereignty under the Tenth Amendment, and expanded the doctrine of state sovereign immunity to curtail federal power to subject unwilling states to private lawsuits. Yet in late 2010, the Court issued a decision that confirms the muted impact of the Rehnquist Court's rulings in the last of the three spheres. In Sossamon v. Texas, the Court acknowledged that even though state sovereign immunity prevents Congress from unilaterally subjecting states to private suits without their consent, Congress retains substantial power to purchase the states' consent under the Spending Clause. The Court in Sossamon proceeded to disallow a private damages action against Texas on different grounds, however. The Court held that even though the state had consented to be sued as a condition of its acceptance of certain federal funds, such a general waiver of immunity from suit was not enough to allow a damages action to proceed because the state had not expressly consented to be sued for monetary relief. This “double immunity” requirement -- that a sovereign must not only waive its immunity expressly from suit but also from monetary claims -- is of recent and undocumented vintage. Yet already it has had an enormous impact, barring private litigants from obtaining remedies for injuries visited upon them by a sovereign defendant even though the sovereign has already agreed to be sued. The rule's impact is trans-substantive too, insulating sovereign entities from monetary judgments in a wide spectrum of cases involving religious liberties, statutory privacy rights, discrimination on the basis of disability, and government destruction of private property. This article explores the origins and effects of the Court's new double immunity rule, and ultimately proposes a new approach to determining whether a private party may sue a sovereign defendant for monetary relief.

Litigation with the Federal Government

Litigation with the Federal Government
Author: John Montague Steadman
Publisher:
Total Pages: 524
Release: 1983
Genre: Law
ISBN:

This book examines statutes governing actions against the federal government, such as the Tucker Act and the Federal Tort Claims Act. The expansion of attorneys' fees recovery against the U.S. made possible by the 1980 Equal Access to Justice Act is treated in detail, as are the changes in contract dispute resolution contained in the Contract Disputes Act of 1978.

International Law in Domestic Courts

International Law in Domestic Courts
Author: Andre Nollkaemper
Publisher: Oxford University Press, USA
Total Pages: 769
Release: 2019-01-28
Genre: Law
ISBN: 0198739745

The Oxford ILDC online database, an online collection of domestic court decisions which apply international law, has been providing scholars with insights for many years. This ILDC Casebook is the perfect companion, introducing key court decisions with brief introductory and connecting texts. An ideal text for practitioners, judged, government officials, as well as for students on international law courses, the ILDC Casebook explains the theories and doctrines underlying the use by domestic courts of international law, and illustrates the key importance of domestic courts in the development of international law.

Civil Rights Enforcement

Civil Rights Enforcement
Author: Scott Michelman
Publisher: Aspen Publishing
Total Pages: 859
Release: 2023-01-31
Genre: Law
ISBN: 1543858023

The purchase of this ebook edition does not entitle you to receive access to the Connected eBook on CasebookConnect. You will need to purchase a new print book to get access to the full experience including: lifetime access to the online ebook with highlight, annotation, and search capabilities, plus an outline tool and other helpful resources. Described as “superb” and “inspiring” in a foreword by Dean Erwin Chemerinsky, Civil Rights Enforcement, Second Edition dives deeply into doctrines concerning the enforcement of civil rights via private civil actions and the aspects of those doctrines of most importance to those litigating in the field. Organized as a litigator might think through a case, the book provides students with rich, detailed hypothetical problems to which they can apply what they are learning. Alongside these practice-focused elements, the book’s notes, questions, and topic transitions push students to grapple with strategic questions about impact litigation and the role of civil rights litigation in constitutional enforcement, as well as with theoretical questions about tradeoffs between the values of federalism and judicial review and the relationship between rights and remedies. ?New to the 2nd Edition: Up-to-date coverage of major developments—including the national reckoning on race and policing after George Floyd’s murder, COVID-19 prison conditions litigation, laws like Texas S.B. 8 designed to evade pre-enforcement challenges, new Bivens decisions, limitations on damages under Titles VI and IX, and the momentous Supreme Court term ending June 2022 Two new chapters on constitutional claims often brought against police or in custodial settings—including under the 4th and 8th Amendments and substantive and procedural due process—to explore how enforcement documents shape constitutional law and vice versa, and to facilitate coverage of topics that often fall through the cracks in constitutional law curricula Expanded coverage of major topics, including: Standing (organizational standing; defining an injury; policing and injunctive relief; pre-enforcement challenges) Qualified immunity (the reform movement; sources of “clearly established law”; the obviousness exception; private-actor applications) Municipal liability (custom; failure to supervise; applications of the “final policymaker” theory; the interaction of qualified immunity and failure to train) Statutory causes of action (42 U.S.C. § 1985; Title VII; ADA; Rehabilitation Act) And more! (COVID-19 conditions; modern school district boundary fights; applications of the Heck bar; expansion of sovereign immunity; the evolution of supervisory liability) New and expanded Applications sections exploring recent trends in appellate courts 10 new hypothetical problems Benefits for instructors and students: Detailed hypothetical problems with multi-layered fact patterns, including hypothetical statutes, precedents, and litigation documents (many based on actual cases) Application notes focusing on how civil rights enforcement doctrines work in practice, what incentives they create, prominent appeals court decisions, and areas of the current controversy Prologue (and follow-up notes throughout) grounding the material in the history of the civil rights movement and the practice of impact litigation Commentary and questions situating the doctrines covered within broader theoretical debates about the role of the federal courts and the gap between rights and remedies Detailed coverage of statutory civil rights enforcement, including comparisons to constitutional enforcement A focus on doctrines most relevant to practice Consideration of the role (or, in many instances, critical absence) of racial justice in the development and implications of civil rights laws and enforcement doctrines Rigorous case editing to highlight key issues and avoid unnecessarily sprawling excerpts Charts and illustrations of the more complex doctrines A consistent focus on doctrines of rights enforcement (as opposed to the content of various rights)—providing the book with a unifying theme and marking out a field of study distinct from Constitutional Law, Criminal Procedure, and Employment Discrimination

Beyond Abrogation of Sovereign Immunity

Beyond Abrogation of Sovereign Immunity
Author: Christina Bohannan
Publisher:
Total Pages: 74
Release: 2009
Genre:
ISBN:

Few judicial decisions in recent years have captured the attention of lawmakers, practitioners, and academics more than the Supreme Court's decisions dealing with state sovereign immunity. Holding that Congress may not abrogate state sovereign immunity from federal statutory claims when acting pursuant to its Article I regulatory powers, those decisions seriously limit an individual's ability to enforce rights against state defendants, creating a gap between right and remedy that arguably impairs the rule of law. While much of the scholarship in this area continues to dwell on abrogation as the primary means of allowing individuals to vindicate rights against the states, the Court clearly favors an approach in which states waive their immunity from suit. In this Article, Professor Christina Bohannan examines three common situations in which a state might be deemed to waive its immunity from suit: first, by failure to raise the immunity as a defense at trial; second, by private agreement; and third, by accepting federal benefits made conditional on waiver of immunity from federal claims. She determines that because the Court's sovereign immunity and Spending Clause jurisprudence has been concerned with ensuring that a state's waiver is voluntary and unequivocal rather than coerced, this case law precludes holding that a state waives its immunity by merely failing to raise it at trial. She concludes, however, that where a state voluntarily and unequivocally waives its immunity in a private contract or in exchange for benefits available exclusively from the federal government, its waiver should be enforced notwithstanding a subsequent attempt to revoke it at or before trial. Thus, a waiver approach to state sovereign immunity could provide a constitutional way for individuals to vindicate their rights against the states in a number of cases, thereby narrowing the right remedy gap created by the Court's abrogation decisions.

State Immunity, Human Rights and the Necessity of Alternative Means of Redress

State Immunity, Human Rights and the Necessity of Alternative Means of Redress
Author: Marcos Octavio Vara Jacobo
Publisher:
Total Pages: 113
Release: 2012
Genre: Government liability (International law)
ISBN:

In its judgment of February 3, 2012, the International Court of Justice (ICJ) determined that the deprivation of State immunity by the Italian national courts was contrary to international law. The Court decided this matter on several grounds. The two main reasons for this finding were that: 1) Jus cogens norms do not impact on the procedural character of State immunity; and 2) the territorial tort exception, prescribed in the United Nations Convention of State Immunity and its property, is inapplicable in the context of an armed conflict. Additionally, the ICJ also determined that the 'last resort' argument presented by the Italian counsel did not justify the deprivation of sovereign immunity of Germany. This contribution looks at the extent to which the ICJ analyzed these arguments. It will consider what happens when a State repeatedly refuses to provide due reparation to individuals, either by failing to establish diplomatic negotiations, or by refusing to offer a legal and effective domestic remedy through its national courts. In this situation, this work asks whether the forum State, through the right of access to justice and the requirement of alternative means of redress, can exercise 'subsidiary' jurisdiction and provide a remedy for the victim of an armed conflict.