Talk:Sovereign immunity

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[edit] Needs improvement

As it presently stands, this article is a rather sloppy treatment of an important subject. Needs discussion of such issues as why this monarchical doctrine was adopted in our republic; history of the Supreme Court's development of the doctrine; etc. —Preceding unsigned comment added by 173.16.41.200 (talk) 14:28, 10 September 2008 (UTC)

Additionally, the concept of sovereign immunity, while established precedent, gives rise to controversy because of its essential claim that the government is above the law. I believe that mention of this controversy (such as played out in Blueport v. United States, a copyright-infringement case) would be worthwhile. chrylis (talk) 01:03, 6 October 2008 (UTC)

[edit] Critique section: cities claiming immunity

user:24.211.157.189 added an observation that "[m]any cities continue to cite sovereign immunity in cases where city officials partake in negligent acts causing damage to citizens." But the Supreme Court has held -- as this article acknowledges -- that only states and their arms can claim sovereign immunity. See Jinks v. Richland County, 538 U.S. 456 (2003); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401 (1977) ("the Court has consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a "slice of state power").

Of course, there is a manifest difference between saying that the Supreme Court does not recognize sovereign immunity claims by municipalities, on the one hand, and on the other, denying user:24.211.157.189's assertion that municipalities continue to cite it (no matter how futilely) as a defense. However, assertions in wikipedia should cite sources when it is "material that is challenged or likely to be challenged," and is "especially important when writing about opinions held on a particular issue" (any text under the heading "Critique of sovereign immunity" is per se within the latter category), see [1]; surely this incumbency applies a fortiori when the assertion in question has been specifically refjected, time and time again, by the Supreme Court of the United States.

For the foregoing reasons, I have reverted user:24.211.157.189's edit without prejudice, and note that if the assertion is replaced, it should be supported by either primary source examples, or secondary sources citing specific examples. Simon Dodd 14:22, 4 April 2007 (UTC)

[edit] Bankruptcy

Katz did not hold that the bankruptcy clause in Article I allows Congress to strip states of sovereign immunity. This result is foreclosed by Seminole Tribe, of course. Katz makes the sneaky argument that bankcruptcy proceedings don't implicate sovereign immunity at all.

The deleted sentenced didn't say it gave Congress that power. If the sentence was ambiguous, don't you think the remedy should have been to clear it up instead of strike it all together?

Katz: "In bankruptcy, 'the court's jurisdiction is premised on the debtor and his estate, and not on the creditors.' ... As such, its exercise does not, in the usual case, interfere with state sovereignty even when States’ interests are affected. ... [B]ecause the [bankruptcy] proceeding was merely ancillary to the Bankruptcy Court’s exercise of its in rem jurisdiction, we held [in Hood] that it did not implicate state sovereign immunity ... And it [the power to authorize courts to avoid preferential transfers and to recover the transferred property], like the authority to issue writs of habeas corpus releasing debtors from state prisons, see Part IV, infra, operates free and clear of the State’s claim of sovereign immunity. ... Neither our decision in Hood, which held that States could not assert sovereign immunity as a defense in adversary proceedings brought to adjudicate the dischargeability of student loans, nor the cases upon which it relied rested on any statement Congress had made on the subject of state sovereign immunity. Nor does our decision today. The relevant question is not whether Congress has 'abrogated' States' immunity in proceedings to recover preferential transfers." Amcfreely 15:20, 26 January 2006 (UTC)

Let me try to be as clear as I possibly can. The sentence you removed from the Wikipedia article did not say that Katz held the Bankrupty Clause gave Congress the power to abrogate state sovereign immunity. In the future, please consider making edits for the purpose of improving the article, rather than for the purpose of showing how smart you are or how "sneaky" the Supreme Court was.

[edit] Sovereign Immunity

There is some confusion in the article between the Sovereign and the Crown. In the UK, the Sovereign is the Queen, and the Crown is the (originally regal) power used on her behalf by the Government. While the Crown is thus protected by the laws and conventions of Sovereign Immunity, it often comes as some surprise, especially to those of us mistaken in the belief that we live in a free and fair democracy, that so is the Queen, personally herself immune from all State prosecution. This was borne out by the investigations in the Paul Burrell trial of 2002. The Sovereign cannot in law be compelled to come to justice, because all legal authority flows from her. Nuttyskin 13:13, 13 September 2006 (UTC)

[edit] Material under "Critique"

Dear fellow editors: The following verbiage was inserted by an anonymous user on 20 October 2006:

Supreme Court cases involving soverign [sic; sovereign] immunity have often been among the most devisive [sic; divisive], in many instances decided by a 5-4 vote. Ironically, it is the conservative wing of the court that has fought to maintain and even strengthen a state's immunity from suit in federal court or pursuant to federal law. Given that the Eleventh Amendment on its face does not prohibit these suits against a state by one of its own citizens, it is strange that the very justices who espouse the "original intent" of the Framers would read such a broad meaning into the Eleventh Amendment.

The phrase "among the most devisive" is non-neutral point of view and possibly unverifiable for purposes of Wikipedia. The phrase "in many instances decided by a 5-4 vote" may well be correct, but we would need some examples (actual citations). A sentence beginning with the word "Ironically" is probably, for purposes of Wikipedia, non-neutral point of view. Same for the clause beginning with "it is strange that". Anyone have any additional ideas on this passage? I didn't want to just delete it without saying why. Yours, Famspear 21:26, 20 October 2006 (UTC)