TWO DIRTY WORDS

There should be no two words in the English language more odious to our Republican ideals than “sovereign immunity.”  This doctrine is a relic of old English law. Back then, it  meant that the King could not be sued by his subjects.  In early US law, it came to mean more generally that no-one was allowed to sue the Government.  This sets us back a long way from a Government of the People for the People.

Today, the federal government has mostly given up its sovereign immunity – mostly.  It has not completely abandoned its ancient privilege. For example, because of the doctrine of sovereign immunity, you cannot sue the federal government if the post office loses your mail; you cannot sue the IRS for damages (only for your money back if they make a mistake); you cannot sue if government employees do you wrong by exercising their discretion in implementing the law, or if an employee hurts you deliberately.  Things get a bit more complicated at times, but you get the idea.

And what of the fifty states? They too are “sovereigns” under the Constitution.  They too have waived their sovereign immunity.  They too have done so only partially.  (To the best of my knowledge, in any event, they have all waived it and all done so incompletely.)

So is there a point to all this besides academic rambling? Yes, there is. In a previous post, I talked about how client and attorney should take into account the identity of their opponent when deciding whether to appeal.  As is evident in this post, they also need to do so when deciding whether to sue in the first place.