Waiver by Removal? An Analysis of State Sovereign Immunity

The Supreme Court has never definitively outlined the theoretical un- derpinnings of state sovereign immunity. The unresolved circuit split over whether a state waives immunity that it would otherwise retain by removing a case from state court to federal court provides a helpful lens to consider the broader doctrinal strands of state sovereign immunity. Under any conception of sovereign immunity, courts should reject a blanket waiver by removal rule that would require states to give up all immunity upon removal. It is imperative that courts make a distinction between substantive immunity and jurisdictional immunity. Even if removal is sufficient to waive jurisdictional immunity, it should not affect the underlying presence (or absence) of a cause of action. Additionally, courts should be careful to distinguish between personal jurisdiction and subject matter jurisdiction aspects of immunity, because the way courts conceive of sovereign immunity can impact how they answer the waiver by removal question. Correspondingly, states must take care to protect their sovereign immunity. Merely forbidding state courts from hearing causes of action brought against a state may not be sufficient to protect state immunity upon removal to federal court. States need to protect their immunity with both substantive and jurisdictional means. 

When Thirteen is (Still) Greater Than Fourteen: The Continued Expansive Scope of Congressional Authority Under the Thirteenth Amendment in a Post-City of Boerne v. Flores World

This Note argues that any disconnect between the Supreme Court’s jurisprudence regarding Congress’s broad power to enforce the Thirteenth Amendment and its much narrower power to enforce the Fourteenth Amendment does not compel a reduction in the former. Several scholars have observed such tension, and they claim that it requires curbing Congress’s Thirteenth Amendment authority. This Note contends that even if that viewpoint is correct, focusing solely on the disjunction misses fundamental factors that preserve the Thirteenth Amendment as a vibrant font of congressional authority.

This Note grounds its argument in several sources. First, it discusses Congress’s broad authority, under any regime, to legislate against direct violations of the Thirteenth Amendment, and how this authority has gone unutilized. Next, it argues that unlike the Free Exercise Clause context that spawned the famed “congruence and proportionality” test for Congress’s Fourteenth Amendment power, which saw Congress and the Court literally clashing over that provision’s meaning, no such adversarial clash exists over the Thirteenth Amendment. Third, it demonstrates how the Thirteenth Amendment, due to the lack of a state-action requirement, presents fewer federalism problems than its counterpart.

Finally, this Note uses a case study to make the argument come to life. Examining the federal civil remedy for victims of gender-based violence that the Court struck down in United States v. Morrison, in part because it exceeded Congress’s Fourteenth Amendment authority, this Note argues how Congress, even under a congruence and proportionality test, could adopt that same legislation under the Thirteenth Amendment.

Insider Trading in Commodities Markets

In securities markets, insider trading is a crime. In commodities, insider trading is almost completely legal. This divergent treatment has long been accepted as appropriate, given perceived differences between the markets. For example, it has been thought that futures traders are sophisticated enough to neither need nor want protections from informed traders, and that the assets traded—corn or copper, for example—do not lend themselves to insider trading anyway.

This Article disagrees, showing that purported differences between these two markets do not withstand serious scrutiny, and that insider trading is harmful in the same ways in both markets and should be governed by the same restrictions. Understanding securities and commodities markets to be peer financial markets permits, for the first time, a serious dialogue between scholars of both fields, and this Article takes the first steps toward applying theories from the securities literature to commodities markets and holding those theories up for verification or falsification against new data from commodities markets.