The Continuing Drift of Federal Sovereign Immunity Jurisprudence

By Sisk, Gregory C. | William and Mary Law Review, November 2008 | Go to article overview

The Continuing Drift of Federal Sovereign Immunity Jurisprudence


Sisk, Gregory C., William and Mary Law Review


ABSTRACT

With the enduring doctrine of federal sovereign immunity, it is too late in the day to suggest that the United States should be treated as an ordinary party in the federal courts. Yet as the Supreme Court has become more comfortable with the increasingly common encounter with a statutory waiver of immunity, the rigidity of interpretive approach has eased. An early jaundiced judicial attitude has resolved into a greater respect for the legislative promise of relief to those harmed by their government. After sketching the history of statutory waivers over the past century-and-a-half and examining Supreme Court decisions across the decades, this Article maintains that a coherent and principled jurisprudence of federal sovereign immunity has been gradually emerging. The Court now reserves absolute jurisdictional analysis for verifying the existence of a statutory waiver for a general class of claims, while judiciously employing strict construction to preclude judicial implication of new causes of actions or remedies. By contrast, the Court is more inclined to use ordinary modes of statutory construction when examining other standards, limitations, or exceptions in statutory waivers, even presuming that procedural rules apply in government cases in the same manner as in private litigation. Unfortunately, a recent Supreme Court decision resurrected an old line of cases that translated a statute of limitations for certain claims against the United States into a jurisdictional rule. This Article suggests that the negative effect of this decision on the course of the law, although not negligible, is limited by the decision's reliance on stare decisis. This Article concludes that the Court should speak more purposively to its interpretive approach in the future if the renewed drift in its federal sovereign immunity jurisprudence is to be arrested.

TABLE OF CONTENTS

INTRODUCTION

 I. THE CONCEPT AND WAIVER OF FEDERAL
    SOVEREIGN IMMUNITY
    A. The Conceptual Grounding, Persistent Criticism, and
       Perseverance of the Doctrine of
       Federal Sovereign Immunity
    B. A History of Statutory Waivers of
       Sovereign Immunity
       1. The Origin of Statutory Waivers: Contracts,
          Money, and the Court of Claims
       2. The Decades of Slow Growth of Statutory Waivers:
          Admiralty and Tort
       3. The Modern Acceleration of Statutory Waivers:
          From Employment Discrimination to
          Attorney's Fees
       4. The Broad Tapestry of Statutory Authorizations for
          Suit Against the Federal Government
II. ARRESTING THE DRIFT: TOWARD A COHERENT THEORY OF
    JUDICIAL CONSTRUCTION OF STATUTORY WAIVERS OF
    SOVEREIGN IMMUNITY
    A. The Importance of Sound Rules of Construction:
       Upholding the Promise of Statutory Waivers of
       Sovereign Immunity
    B. Sovereign Immunity and Jurisdiction:
       Preserving Jurisdictional Analysis in Its Place
       1. Existence of Legislative Consent for a Class of
          Claims as a Jurisdictional Prerequisite
       2. Early Decisions that Overextended
          Jurisdictional Analysis
       3. Reserving Jurisdictional Inquiry for Core Matters,
          While Removing Other Standards, Limitations,
          Exceptions, and Procedural Rules from
          Jurisdictional Analysis
    C. Construction of a Waiver's Substantive Scope:
       Strict in Theory, Calibrated and
       Pragmatic in Practice
       1. Strong Presumption Against Interpreting a
          Waiver To Allow a New Cause of
          Action or Remedy
       2. Strictness of Construction Lessens with
          Greater Judicial Familiarity with a
          Statutory Waiver: The Evolution of the
          Tucker Act in the Supreme Court
       3. The Fading of Strict Construction with Distance
          from the Core Substance of the
          Waiver of Immunity
    D. Applying Procedural Rules for Suits Against the
       Sovereign in the Same Manner as with
       Private Parties
III. … 

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Continuing Drift of Federal Sovereign Immunity Jurisprudence
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.