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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
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Z      MD     gefending Liberty
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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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