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Brief of Law Professors As Amici Curiae in Support of Petitioner ______

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Brief of Law Professors As Amici Curiae in Support of Petitioner ______ No. 17-1299 IN THE FRANCHISE TAX BOARD OF THE STATE OF CALIFORNIA, Petitioner, v. GILBERT P. HYATT, Respondent. _______________ ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEVADA _______________ BRIEF OF LAW PROFESSORS AS AMICI CURIAE IN SUPPORT OF PETITIONER _______________ Katherine Mims Crocker Benjamin L. Hatch Lyle D. Kossis Counsel of Record MCGUIREWOODS LLP MCGUIREWOODS LLP 800 East Canal Street 2001 K Street NW Richmond, VA 23219 Suite 400 (804) 775-1000 Washington, DC 20006 (202) 857-1700 [email protected] Counsel for Amici Curiae i TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................... ii INTEREST OF AMICI CURIAE .................................................... 1 SUMMARY OF ARGUMENT ...................................................... 1 ARGUMENT ............................................................................ 3 I. Constitutional text, structure, and history all support the principle of interstate sovereign immunity. ..................................................................... 4 A. Constitutional text and structure embrace the principle of interstate sovereign immunity. ............................................................ 4 B. The founding generation recognized the historical principle of interstate sovereign immunity. ............................................................ 9 II. The argument that forum states can abrogate interstate sovereign immunity is incorrect. ................ 11 CONCLUSION ........................................................................ 14 APPENDIX AMICI CURIAE LAW PROFESSORS ........................................ A-1 ii TABLE OF AUTHORITIES Cases Alden v. Maine, 527 U.S. 706 (1999) .............................................. passim Baker v. Gen. Motors Corp., 522 U.S. 222 (1998) ...................................................... 14 Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) ...................................... 2, 5, 6 Fauntleroy v. Lum, 210 U.S. 230 (1908) ...................................................... 14 Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743 (2002) ........................................................ 7 Hans v. Louisiana, 134 U.S. 1 (1890) ............................................................ 7 Mitchell v. Forsyth, 472 U.S. 511 (1985) ...................................................... 13 Moitez v. The South Carolina, 17 F. Cas. 574 (Adm. 1781) (No. 9697) ......................... 1 Nathan v. Virginia, 1 U.S. (1 Dall.) 77 (Pa. Ct. Com. Pl. 1781) ................................... 2, 9, 10, 11 Nevada v. Hall, 440 U.S. 410 (1979) .............................................. passim Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) ...................................................... 13 iii Printz v. United States, 521 U.S. 898 (1997) .................................................. 4, 13 Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) .......................................................... 7 V.L. v. E.L., 136 S. Ct. 1017 (2016) .................................................. 14 Wisc. Dep’t of Corr. v. Schacht, 524 U.S. 381 (1998) ...................................................... 14 Constitutional Provisions U.S. Const. art. I, § 10 ........................................................... 7 U.S. Const. amend. XI ........................................................... 5 Other Authorities 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 1836) .............................................. 9 4 The Documentary History of the Supreme Court of the United States, 1789–1800: Organizing the Federal Judiciary (Maeva Marcus ed., 1992) ............................................... 9 The Federalist No. 39 (Clinton Rossiter ed., 1961) ............................................ 4 William Baude, Sovereign Immunity and the Constitutional Text, 103 Va. L. Rev. 1 (2017) ..................................... 2, 11, 13 Anthony J. Bellia Jr. & Bradford R. Clark, General Law in Federal Court, iv 54 Wm. & Mary L. Rev. 655 (2013) ............................... 8 Jesse H. Choper & John C. Yoo, Who’s Afraid of the Eleventh Amendment? The Limited Impact of the Court’s Sovereign Immunity Rulings, 106 Colum. L. Rev. 213 (2006) ....................................... 4 Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010) ....................................... 6 Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245 (1996)....................................... 8 Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503 (2006) ....................................... 8 James E. Pfander, History and State Suability: An “Explanatory” Account of the Eleventh Amendment, 83 Cornell L. Rev. 1269 (1998) .................................. 5, 6 James E. Pfander, Rethinking the Supreme Court’s Original Jurisdiction in State-Party Cases, 82 Calif. L. Rev. 555 (1994) ..................................... 9, 10 v Michael B. Rappaport, Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court’s Tenth and Eleventh Amendment Decisions, 93 Nw. U. L. Rev. 819 (1999) ................................. 5, 6, 7 Gary J. Simson, The Role of History in Constitutional Interpretation: A Case Study, 70 Cornell L. Rev. 253 (1985) .................................... 3, 7 Peter J. Smith, States as Nations: Dignity in Cross-Doctrinal Perspective, 89 Va. L. Rev. 1 (2003) ................................................. 13 Ann Woolhandler, Interstate Sovereign Immunity, 2006 Sup. Ct. Rev. 249 ......................................... passim Ernest A. Young, Alden v. Maine and the Jurisprudence of Structure, 41 Wm. & Mary L. Rev. 1601 (2000) ............................. 5 1 INTEREST OF AMICI CURIAE Amici curiae, who are listed in the Appendix, are professors of constitutional law, civil procedure, conflict of laws, and other legal fields. They have an interest in the proper development of structural constitutional law, including the doctrine of state sovereign immunity. Amici offer their views on whether the Court should overrule Nevada v. Hall, 440 U.S. 410 (1979).* SUMMARY OF ARGUMENT Nevada v. Hall, 440 U.S. 410 (1979), which rejected the principle of interstate sovereign immunity, was wrongly decided and should be overruled. The discussion here proceeds in two parts. I. Hall conflicts with constitutional text, structure, and history. Ratification occurred against a historical understanding that states could not hale non-consenting sister states into their courts. Constitutional text and structure embrace this principle of interstate sovereign immunity both by preserving the immunity and by prohibiting its abrogation at the hands of sister states. Under the Constitution, states maintain core attributes of sovereignty, including a robust conception of sovereign immunity. The selection of the word “state” may support this notion. And the Eleventh Amendment, which forbids the adjudication of any suit against a state by a citizen of another state in federal court, makes little sense if states are not also immune from suit in sister-state courts. “[T]he sovereign * The parties have filed blanket consents to the filing of amicus briefs. No counsel for a party authored this brief in whole or in part, and no counsel for a party (nor a party itself) made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici or their counsel made a monetary contribution to its preparation or submission. 2 immunity of the states neither derives from, nor is limited by, the terms of the Eleventh Amendment.” Alden v. Maine, 527 U.S. 706, 713 (1999). Instead, the purpose of the Eleventh Amendment was to overturn Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which had held that a South Carolinian could sue Georgia in federal court. As Justice Blackmun stated when dissenting in Hall, “[i]f the Framers were indeed concerned lest the States be haled before the federal courts— as the courts of a higher sovereign—how much more must they have reprehended the notion of a State’s being haled before the courts of a sister state.” 440 U.S. at 431 (Blackmun, J., dissenting). In addition, the Constitution limits the power that each state may exercise. Some of these limitations are structural, including the principle that because states are coequal sovereigns, they may not exercise legislative power over one another to decide interstate disputes. For similar reasons, states generally may not exercise judicial power over one another by haling sister states into their courts. The principle of interstate sovereign immunity was well accepted among the founding generation. Both the Federalists and the Antifederalists premised their arguments for and against the Constitution on the assumption that states could not be sued in sister-state courts (or in any courts) without their consent. This understanding was on full display in Nathan v. Virginia, 1 U.S. (1 Dall.) 77 (Pa. Ct. Com. Pl. 1781). By holding that Virginia could not be haled into a Pennsylvania court without its consent, Nathan echoed the dominant sentiment at the time—that states were immune from suit in the courts of sister states. II. Forum states cannot abrogate the sovereign immunity of sister states. Professor William Baude’s recent argument to the contrary, see William
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