Waiver by Removal? An Analysis of State Sovereign Immunity

Note — Volume 102, Issue 2

102 Va. L. Rev. 549
Download PDF

The Supreme Court has never definitively outlined the theoretical un- derpinnings of state sovereign immunity. The unresolved circuit split over whether a state waives immunity that it would otherwise retain by removing a case from state court to federal court provides a helpful lens to consider the broader doctrinal strands of state sovereign immunity. Under any conception of sovereign immunity, courts should reject a blanket waiver by removal rule that would require states to give up all immunity upon removal. It is imperative that courts make a distinction between substantive immunity and jurisdictional immunity. Even if removal is sufficient to waive jurisdictional immunity, it should not affect the underlying presence (or absence) of a cause of action. Additionally, courts should be careful to distinguish between personal jurisdiction and subject matter jurisdiction aspects of immunity, because the way courts conceive of sovereign immunity can impact how they answer the waiver by removal question. Correspondingly, states must take care to protect their sovereign immunity. Merely forbidding state courts from hearing causes of action brought against a state may not be sufficient to protect state immunity upon removal to federal court. States need to protect their immunity with both substantive and jurisdictional means. 

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

  Volume 102 / Issue 2  

A Tribute to Antonin Scalia

By Paul G. Mahoney
102 Va. L. Rev. 285

Foreign Sovereigns as Friends of the Court

By Kristen E. Eichensehr
102 Va. L. Rev. 289

Constitutional Commitment to International Law Compliance?

By David H. Moore
102 Va. L. Rev. 367

Insider Trading in Commodities Markets

By Andrew Verstein
102 Va. L. Rev. 447