Brief of Professors William Baude and Stephen E. Sachs as Amici Curiae in Support of Neither Party

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them. Hall correctly held that States lack a constitutional immunity in sister-state courts. The Founders viewed each State as immune from such suits under the common law and the law of nations. Before the Constitution’s enactment, this was plainly not a constitutional right, and nothing in the Constitution changed that. Thus, Hall properly rejected the argument that there is a “federal rule of law implicit in the Constitution that requires all of the states to adhere to the sovereign-immunity doctrine as it prevailed when the Constitution was adopted.” Hall went too far, however, in denying that “the Constitution places any limit on the exercise of one State’s power to authorize its courts to assert jurisdiction over another State,” and in reducing sister-state immunity to a “matter of comity.” In particular, Hall was likely wrong to assume that a State’s abrogation of immunity in its own courts could be projected outward so as to bind other state and federal courts. In an appropriate case, these principles might justify revisiting and narrowing portions of Hall. Yet this case is a poor vehicle for doing so. Because the case has been improperly framed by the parties and cannot be resolved properly without further briefing, the Court should dismiss the writ as improvidently granted. Alternatively, it should dismiss for lack of jurisdiction—or, if satisfied of its jurisdiction, should affirm