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54 U. Mich. J.L. Reform 1 (2020-2021)
Sovereign Immunity and Interstate Government Tort

handle is hein.journals/umijlr54 and id is 9 raw text is: SOVEREIGN IMMUNITY AND INTERSTATE GOVERNMENT TORT* Louise Weinberg** ABSTRACT This paper argues that the Supreme Court made a serious mistake last term, when, in a case of interstate government tort, it tore up useful options that should be available to each state for the rare cases in which they would be of service. In seeking to insulate a state from liability when its employee intrudes on a sister state's territory and causes injury there, the Court stripped every state of power, in cases of interstate government tort, to try injuries occurring on its own territory to its own residents-an unprecedented disregard of a state's acknowledged traditional interests. Indeed, the Court went beyond interstate government tort and seemed to say that the Constitution prohibits litigation against a state in all cases, whether to enforce state or federal law, whether in state or federal courts. It is argued that the Court's originalist and structural arguments cannot withstand scrutiny. Moreover, the Court's position, if firmly established, would balk the actual interests even of a state as defendant. The states typically do see a need to meet their tort responsibilities. Real damage has been done, but it is argued that conservative and liberal views on judicial review of government action in time may well converge to put an end to judicial abnegation of the duty to place government at all levels under the rule of law. TABLE OF CONTENTS INTRODUCTION .................................................................................. 2 I. OUR TWO CASES.................................................................... 9 A. Nevada v. Hall.......................................................... 9 B. Franchise Tax Board.............................................. 11 II. CONSTITUTIONAL TORT AND ORDINARY TORT: TWO DIFFERENT WRONGS, TWO DIFFERENT REMEDIES............... 21 A. Nevada v. Hall: A Non-Federal Interstate Tort Claims Act at Common Law .............................................. 22 B. Franchise Tax Board: A Non-Federal Interstate Civil Rights Act at Common Law .............................. 25 C. A Background Case................................................... 26 * Copyright © 2020 by Louise Weinberg. All rights reserved ** William B. Bates Chair in the Administration of Justice and Professor of Law, Uni- versity of Texas, Austin. My thanks to correspondents Erwin Chemerinsky, Arthur Hellman, and Stephen Vladeck, and to participants at the colloquium on an earlier draft of this paper at the University of Texas Law School, Austin on November 15, 2019. 1

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