Sovereign Immunity and Interstate Government Tort

This paper argues that the Supreme Court made a serious mistake last term, when, in a case of interstate government tort, it tore up useful options that should be available to each state for the rare cases in which they would be of service. In seeking to insulate a state from liability when its employee intrudes on a sister state’s territory and causes injury there, the Court stripped every state of power, in cases of interstate government tort, to try injuries occurring on its own territory to its own residents—an unprecedented disregard of a state’s acknowledged traditional interests. Indeed, the Court went beyond interstate government tort and seemed to say that the Constitution prohibits litigation against a state in all cases, whether to enforce state or federal law, whether in state or federal courts. It is argued that the Court’s originalist and structural arguments cannot withstand scrutiny. Moreover, the Court’s position, if firmly established, would balk the actual interests even of a state as defendant. The states typically do see a need to meet their tort responsibilities. Real damage has been done, but it is argued that conservative and liberal views on judicial review of government action in time may well converge to put an end to judicial abnegation of the duty to place government at all levels under the rule of law.