Issue 1

Sovereign Immunity and the Constitutional Text

Despite the opprobrium heaped on the Supreme Court’s modern doctrine of state sovereign immunity, there is a theory that makes sense of that doctrine, and also renders it consistent with the constitutional text. The theory is that sovereign immunity is a common law rule—a “backdrop”—that is not directly incorporated into the Constitution, but is shielded by the Constitution from most kinds of change.

That theory also has important implications for the future of sovereign immunity. The Supreme Court’s decision in Nevada v. Hall holds that state sovereign immunity need not be respected in another state’s courts. Last term, in Franchise Tax Board v. Hyatt, the Court nearly overruled Hall, and its future hangs by a single vote. The backdrop theory suggests that Hall is rightly decided, consistent with modern doctrine, and should not be overruled.

A Declaratory Theory of State Accountability

Scholars and jurists may never reach consensus as to the historical meaning of Article III and the Eleventh Amendment and the proper balance of immunity and accountability. Certainly we find little in revisionist accounts of that history that disproves the diversity theory. But even in a world where sovereign immunity prevails, perhaps all will agree that the federal courts have a legitimate role to play in evaluating claims that the states have violatedwillingness to hear claims for money damages in respect of any such declaratory judgments offends no principle of existing law. In this Article, we propose to fuse these elements together into a declaratory theory of state accountability. Rather than viewing such decisions as Seminole Tribe and Alden as immunizing states from liability, we think the states should invite federal law claimants to pursue their money claims by invoking the ordinary processes of state law.  supreme federal law in the context of actions for declaratory relief. Perhaps, too, all will agree that the states’ willingness to hear claims for money damages in respect of any such declaratory judgments offends no principle of existing law. In this Article, we propose to fuse these elements together into a declaratory theory of state accountability. Rather than viewing such decisions as Seminole Tribe and Alden as immunizing states from liability, we think the states should invite federal law claimants to pursue their money claims by invoking the ordinary processes of state law. 

Such a cooperative approach to the vindication of federal claims has a good deal to recommend it. By channeling federal claimants into state law processes, the declaratory approach would preserve state control of the treasury and obviate the concern that exorbitant federal awards might drain state coffers. At the same time, the declaratory approach maintains federal judicial engagement with questions of state compliance with federal law. Finally, the declaratory approach places some responsibility on the states for ensuring the effectiveness of remediation. With time, the states may establish the sort of routine mode of money claim payment that now characterizes practice at the federal level under the judgment fund. After all, supporters of state immunity offered assurances in the wake of Chisholm that the states could be trusted to do right by money claimants.327 As an acceptance of that offer, the Eleventh Amendment calls upon the states to entertain money claims in the wake of a federal declaratory judgment that the state has violated federal law. 

Benefits of Error in Criminal Justice

Enroll in law school and you will be taught, within the first year, a revered maxim of criminal law: “[B]etter that ten guilty persons escape, than that one innocent suffer.” This particular articulation belongs to English jurist William Blackstone, but the general notion that the criminal justice system should prefer false acquittals to false convictions predates Blackstone. Nevertheless, the maxim is generally referred to as the Blackstone principle. The ratio itself is unimportant. No one contends that we ought to ensure exactly ten guilty defendants are acquitted for every innocent defendant that is convicted. Rather, the slogan is recited to convey a more general principle: When imposing criminal punishment, we ought to tip the scales to favor false negatives (acquittals of the guilty) for the sake of minimizing false positives (convictions of the innocent), despite a likely decrease in overall accuracy.

The Note contains three Parts that proceed as follows. Part I traces the historical origins of the Blackstone principle, lays out the traditional justifications, and introduces Epps’s dynamic critique. Part II challenges the assumptions on which Epps’s analysis relies and raises significant doubts that the Blackstone principle creates negative systemic effects for defendants. Part III then introduces an affirmative rationale by arguing that the Blackstone principle benefits innocent defendants because it promotes equality

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