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25 Litig. News 1 (1999-2000)

handle is hein.journals/lignws25 and id is 1 raw text is: American Bar Association 750 North Lake Shore Drive Chicago, llinois 60611-4497 Z MD gefending Liberty ~Prsuing Ijustice Nonprofit Organization U.S. Postage PAID American Bar Association LITIGATION NEWS l A PUBLICATION OF THE SECTION OF LITIGATION - AMERICAN BAR ASSOCIATION - NOVEMBER 1999 VOL. 25, NO. 1 Supreme Court Snuffs Suits Against States Principles offederalism safeguard states' sovereignty BY THoMAs E. ZEHNLE LITIGATION NEWS AssocIATE EDrrOR N ihe U.S. Supreme Court has raised the bar against private parties who seek to sue states for violating federal wage, patent, and trademark laws. In three decisions issued on the final day of its last term, the Court held that principles of federalism intended to safe- guard the states' sovereignty generally prevent individuals from bringing pri- vate actions absent the states' consent. In Alden v. Maine, a 5-4 majority ruled that sovereign immunity precluded a state court lawsuit against Maine under the Fair Labor Standards Act of 1938 without the state's consent. The Court had previously held that Congress lacks the power under Article I to abrogate a state's sovereign immunity in federal court. Seminole Tribe of Florida v. Florida. So the Alden decision effec- tively foreclosed the only other realistic avenue of monetary redress for state employees. Authorizing private suits for money damages would strain the states' abil- ity to govern in accordance with their citizens' will, for judgment creditors compete with other important needs and worthwhile ends for access to the public fisc, Justice Anthony Kennedy pointed out. The ruling may have an impact on future wage and labor lawsuits against state government employers if other states decline to waive their sovereign immunity. Under those circumstances, workers' only recourse would be to have the Department of Labor bring the action on their behalf. The Department, how- ever, does not have the resources to sue every time there is a violation, says Barbara Ryniker Evans, New Orleans, immediate past Co-Chair of the Section of Litigation's Employment and Labor Relations Law Committee. Essentially, the decision leaves (state) employees up a creek, Evans says. Intellectual property plaintiffs seeking to sue a state or state entity for patent or trademark infringement may suffer a similar fate as a result of the Court's two other decisions. Florida Prepaid Post- secondary Education Expense Board v. College Savings Bank. College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board. Even though Congress's intent to abrogate could not have been any clearer, the Patent Remedy Act invalidly attempted to nullify the states' sovereign immunity, Chief Justice William Rehn- quist wrote for the 5-4 majority in Florida Prepaid. In College Savings Bank, another 5-4 (Please turn to page 7-Federal) Federalization of Criminal Law Criticized Former attorneys general also disagree over benefits of sentencing guidelines By N. DAVID BLEISCH LITIGATION NEWS ASSoCLATE EDITOR !several former U.S. attorneys general criticized the trend toward federalization of state criminal law and debated the impact of sentencing guidelines on the federal judiciary. They spoke at a forum discus- sion sponsored by the Section of Litigation at the 1999 ABA Federalization of state cy Annual Meeting in Atlanta. false impression that C The federalization of state crimes is a poor phenomenon about a socialprob fueled by members of Congress attempting to curry popular support by outlawing activities currently the subject of public outrage, according to Benjamin R. Civiletti of Baltimore, past Chair of the Section of Litigation. rimi, 'ongro lem. The trend is political grandstanding and largely a hoax, in the view of Edwin Meese HI, a Fellow with the Heritage Foundation in Washington, D.C. It allows Congress to give the public a false impression that it has done something about a social problem. Many of the newly federalized criminal laws rarely result in federal prosecutions, Meese says. Meese chaired the ABA Task Force on the Federalization of Criminal Law, which issued a report this year criticizing the increase in federal criminal statutes that duplicate the substance of state statutes. More than 40 percent of the fed- eral criminal provisions enacted since the Civil War have been adopted within the last 30 years, the report notes. The report says that federal criminal statutes are best suited to deal with interna- al law gives the public a tional crimes, criminal offenses .ess has done something on federally governed sites, -mEdwin Meese I and crimes intruding on federal functions or against individuals acting in a federal capacity. To create a federal crime, the report concludes, a strong federal interest in the matter should be clearly shown, that is, (Please turn to page 2-AGs)

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