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Friday, May 15, 2020

The 11th Amendment and Admiralty

Here is what might sound like a trick question: Does the Eleventh Amendment give a state sovereign immunity from admiralty lawsuits (or, as they used to be called, libels) in federal court? Bushrod Washington faced this question on circuit in United States v. Bright, an important case that I'll say more about in another post. His answer was no. Why? Because the Eleventh Amendment refers to suits only in "law and equity." Admiralty is neither law nor equity, thus the text did not extend to admiralty suits. (Washington made other points in support of his conclusion, but this one was probably the strongest).

Wrong, said the Supreme Court a century later. In Re New York said that the the Eleventh Amendment could not be read literally due to the Court's decision in Hans v. Louisiana and that admiralty suits should not be exempted. (Steve Sachs and Will Baude discuss admiralty at some length in their recent article on the Eleventh Amendment). Hans was a terrible decision that gets pummeled by nearly everyone except a majority of the Justices, and this is just another reason to think that Hans screwed up the Eleventh Amendment badly.

This is just one of many doctrines where Washington got it right and the Court gets it wrong. I'll be giving more examples in the coming weeks.

Posted by Gerard Magliocca on May 15, 2020 at 07:59 AM | Permalink


Interesting issue. Just worth to note, that in: Hans v. Louisiana, Justice Marshall is quoted, as suggesting another ( sort of ) desirable exception to the 11th, and I quote:

Some reliance is placed by the plaintiff upon the observations of Chief Justice MARSHALL in Cohens v. Virginia, 6 Wheat. 264, 410. The chief justice was there considering the power of review exercisable by this court over the judgments of a state court, wherein it might be necessary to make the state itself a defendant in error. He showed that this power was absolutely necessary in order to enable the judiciary of the United States to take cognizance of all cases arising under the constitution and laws of the United States. He also showed that making a state a defendant in error was entirely different from suing a state in an original action in prosecution of a demand against it, and was not within the meaning of the eleventh amendment; that the prosecution of a writ of error against a state was not the prosecution of a suit in the sense of that amendment, which had reference to the prosecution by suit of claims against a state. 'Where,' said the chief justice, 'a state obtains a judgment a gainst an individual, and the court rendering such judgment overrules a defense set up under the constitution or laws of the United States, the transfer of this record into the supreme court, for the sole purpose of inquiring whether the judgment violates the constitution or laws of the United States, can, with no propriety, we think, be denominated a suit commenced or prosecuted against the state whose judgment is so far re-examined. Nothing is demanded from the state. No claim against it of any description is asserted or prosecuted. The party is not to be restored to the possession of anything. * * * He only asserts the constitutional right to have his defense examined by that tribunal whose province it is to construe the constitution and laws of the Union. * * * The point of view in which this writ of error, with its citation, has been considered uniformly in the courts of the Union, has been well illustrated by a reference to the course of this court in suits instituted by the United States. The universally received opinion is that no suit can be commenced or prosecuted against the United States; that the judiciary act does not authorize such suits. Yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favor of the United States into a superior court. * * * It has never been suggested that such writ of error was a suit against the United States, and therefore not within the jurisdiction of the appellate court.' After thus showing by incontestable argument that a writ of error to a judgment recovered by a state, in which the state is necessarily the defendant in error, is not a suit commenced or prosecuted against a state in the sense of the amendment, he added that, if the court were mistaken in this, its error did not affect that case, because the writ of error therein was not prosecuted by 'a citizen of another state' or 'of any foreign state,' and so was not affected by the amendment, but was governed by the general grant of judicial power, as extending 'to all cases arising under the constitution or laws of the United States, without respect to parties.' Page 412.

End of quotation:

And by the way, one may claim indeed ( among others) that Admiralty is exempted, since, has to do with ex territorial, or Universal / International law, combined with Federal law, yet, not state law typically ( but, may be incorporated only, to state laws) . For, the underlying philosophy among others (of state immunity) is the very fact, that the state itself, legislates its own rules or laws. So, it is bound only by its own good faith. But, if it is not its own laws, it can be sued.

Of course, on the other hand, one may claim, that if as necessary presumption, it must adheres to its own laws, and bound by it, it must also, give example or rather,sublime example, of such adherence. And how it shall be demonstrated ? Simply, by waiving for good, its right not to be sued, and proving it actually, publicly, in court of law.

To the ruling:



Posted by: El roam | May 15, 2020 10:50:03 AM

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