Publication Date
3-2024
Document Type
Article
First Page
785
Abstract
When the U.S. Supreme Court in the 2019 case of Franchise Tax Board v. Hyatt held that the Constitution bars private suits against a state in another state’s courts, it endorsed a surprisingly shallow conception of state sovereign power. But the doctrinal alternative from the now-overruled Nevada v. Hall is no better. Where Hyatt gives too much constitutional protection to would-be defendant states, Hall gives too little. And both approaches mistakenly conceive of interstate sovereign immunity as an on/off switch that the Constitution locks in one position.
Finding neither Hyatt III nor Hall satisfactory, I offer a third view. The Full Faith and Credit Clause was meant to ensure that states extend to each other dignity and respect for their sovereign duties. In the case of private suits against a defendant state in another state’s court, these sovereign duties conflict, and it is impossible for a forum state to preserve the sovereign duties of another state without impairing its own. To ensure full faith and credit, the Constitution, I argue, requires that states extend sovereign immunity to their sister states only when doing so maximizes the total sovereign power available to both states. In my view, this approach to interstate sovereign immunity is more consistent with the crucial value precipitated by the Constitution and enshrined in our federal system: states respect each other.
Repository Citation
Michael
Zschokke,
Taking Interstate Rights Seriously,
26
U. Pa. J. Const. L.
785
(2024).
Available at:
https://scholarship.law.upenn.edu/jcl/vol26/iss3/4