Can a State Waive Its Privilege and Consent to Be Sued
periodical article
Duke Law Journal
Published By: Duke Academy School of Law
https://www. jstor .org/stable/1373169
States ordinarily enjoy amnesty from suit by individual parties, simply they may waive this amnesty. The Supreme Court's steady contraction of other exceptions to the rule of state sovereign immunity has renewed involvement in the previously footling-discussed possibilities of waiver. This Commodity explores the boundaries of waiver doctrine. This Article shows that, prior to 1945, the Supreme Court-even every bit it enforced a broad, substantive dominion of land sovereign immunity-applied a sensible doctrine of waiver that balanced the interests of states with those of private parties and the federal judicial system. The Court's traditional doctrine treated land sovereign immunity similar the defence of personal jurisdiction. Failure to assert amnesty in a timely mode waived the amnesty defense. This rule prevented unfair gamesmanship. Beginning in 1945, the traditional rules concerning waiver of state sovereign immunity got swept away by the overall ideological tide of land sovereign immunity doctrine. The immunity became so important that it overrode all other considerations, including the demand to run the federal judicial system in a sensible way. The new rules of waiver permitted states to abuse their immunity and waste federal judicial resources by litigating the merits of a example while belongings an immunity defense in reserve. The Supreme Courtroom's almost contempo decisions propose that the Court has returned to its traditional rules concerning waiver. The Courtroom should brand articulate that it has fully reinstated the traditional, sensible, non-ideologized rules of waiver. Such rules respect the states' prerogative of refusing to be sued in a federal forum, while at the same time requiring states to assert their prerogative in an orderly way that respects the needs of the federal judicial system.
The Duke Law Journal is published half-dozen times per year, in October, November, December, February, March, and April, at the Knuckles Academy School of Police. The journal is amidst the most prestigious and influential legal publications in the country. Edited past a educatee board, approximately 1-third of each issue's contents consists of student notes dealing with current legal developments, with the remaining content being devoted to articles and comments by professors and practitioners. Generally one issue each year is devoted to administrative law and often another issue is in the course of a symposium.
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Source: https://www.jstor.org/stable/1373169
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