A Test of Sovereignty: Franchise Tax Board of the State of California v. Gilbert P. Hyatt

In Franchise Tax Board of California v. Hyatt, the Supreme Court considers whether to overrule Nevada v. Hall, a 1979 Supreme Court decision. Hall permitted a State to be haled into the court of another State without its consent. In 2016, an evenly divided Supreme Court affirmed Hall 4-4 when faced with the same question, and following a remand to the Nevada Supreme Court, the Court has granted certiorari on this question once again. This Commentary contends that Hall was wrongly decided and should be overruled. The Constitution’s ratification did not alter the status of common-law State sovereign immunity, leaving intact not only State sovereign immunity in a State’s own court but also a State’s immunity to suits in the courts of another State without consent. However, this case, in which the Petitioner has already appeared in the court of another State, is not the appropriate vehicle for overruling Hall. State sovereign immunity should be restored at the next possible opportunity, when a State properly asks a federal court to enforce its common-law immunity from the courts of a sister State. Sovereigns should enjoy immunity not only in their own courts, but also in the courts of their peers