This Article discusses whether a State has sovereign immunity from claims for just compensation. The Article concludes that the States are indeed immune from just-compensation suits brought against them in federal court; States are not necessarily immune, however, from just-compensation suits brought against them in their own courts of general jurisdiction. Thus, the States' immunity in federal court is not symmetrical to the States' immunity in their own courts. This asymmetry, the Article explains, is the result of the Due Process Clause of the Fourteenth Amendment. The Due Process Clause obligates a State to provide a means of paying just compensation every time the State takes private property for public use. A State may be able to meet this obligation by establishing a non-judicial compensation system. If a State fails to establish an adequate non-judicial compensation system, however, the State's remedial obligation under the Due Process Clause falls upon the State's courts. This resolution respects both a State's constitutional right to avoid private lawsuits and an individual's constitutional right to just compensation.
Richard H. Seamon,
The Asymmetry of State Sovereign Immunity,
76 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol76/iss4/4