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Tuesday, October 29, 2019

Aaarrrgument preview: Allen v. Cooper

I have a SCOTUSBlog case preview on next Tuesday's arguments in Allen v. Cooper, considering whether states enjoy 11th Amendment/sovereign immunity from suit for copyright violations. The dispute arises from film and video documenting the salvaging of Blackbeard's flagship, the Queen Anne's Revenge. Thanks to the SCOTUSBlog editors for letting me get away with that title.

Speaking of the Eleventh Amendment, download while it's hot the new paper by Will Baude and Stephen Sachs, The Misunderstood Eleventh Amendment. Because the plaintiff is from North Carolina, their plain-language argument would be that the Amendment does not apply, but there are questions about the state being subject to personal jurisdiction in the action.

Posted by Howard Wasserman on October 29, 2019 at 01:54 PM | Permalink


Yeah, Hyatt was not a case about the constitutionality of a federal statute. Katz was, though.

Posted by: Asher Steinberg | Oct 29, 2019 10:22:38 PM

I know it isn't a part of the case, but it's pretty outrageous that North Carolina passes a law giving themselves the right to use someone else's copyrighted material.

Posted by: MGould | Oct 29, 2019 4:06:52 PM

(Though, perhaps the more apt comparison would be Florida Prepaid. And it appears that the SG did weigh in there, arguing in favor of the constitutionality of the TRCA/PPVRCA. Maybe the SG, stuck between deciding not to defend the constitutionality of a statute or coming up with some specious distinction between those two statutes and the CRCA, decided to just sit this one out.)

Posted by: TNN | Oct 29, 2019 3:40:26 PM

The SG also didn't weigh in Hyatt II or Hyatt III. I don't think it's that unusual for the SG to stay out of state sovereign immunity disputes, though I'd be happy to see more robust statistics either way.

Posted by: TNN | Oct 29, 2019 3:30:30 PM

Your link to Baude and Sachs doesn't work, but this one does:


The SG's absence as amicus from this case on either side is very strange to me, but it looks like the SG's office didn't file a brief in Katz either.

Posted by: Asher Steinberg | Oct 29, 2019 2:05:51 PM

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