Copy-Katz: Sovereign Immunity, the Intellectual Property Clause, and Central Virginia Community College v. Katz

• Published in: The Georgetown law journal Vol. 95; no. 6; p. 1911
• Main Author: Caputo, James F
• Format: Journal Article
• Language: English
• Published: Washington Georgetown University Law Center 01.08.2007
• Subjects: Bankruptcy laws; Clauses; Community colleges; Intellectual property; Privileges & immunities; Property; Supreme Court decisions; United States > US
• ISSN: 0016-8092

In January 2006, the Supreme Court decided the relatively unheralded case of Central Virginia Community College v. Katz. Dividing 5-4, the Court held that the history and structure of the Bankruptcy Clause of the United States Constitution indicate that it contains an implicit waiver of state sovereign immunity-that is, when states ratified the Constitution, they agreed that they would be subject to suits arising out of legislation Congress passed pursuant to the bankruptcy power. The decision was particularly intriguing because Justice O'Connor-in one of the final cases decided before her retirement-broke with the block of Justices she had traditionally voted with in sovereign immunity cases and provided the decisive vote to a new majority. The Court did not disturb its previous precedents which established (or recognized) that the several states enjoy broad, near absolute immunity from all sorts of suits. Justice Stevens's majority opinion also did not speculate as to whether the logic underlying the Court's finding of a waiver embedded in the Bankruptcy Clause might similarly apply to other constitutional clauses. This Note takes up that question. First, it traces the history of the broad regime of state sovereign immunity in the United States-a regime which served as a backdrop to the Katz decision and against which any consideration of extending the Court's reasoning must be considered. Second, the Note surveys the jurisprudence of sovereign immunity waiver and abrogation and examines how and where the Katz decision fits. Finally, this Note takes up the logical next question that the Court left unanswered-that is, does the reasoning of Katz, which supports a finding of waiver embedded in the Bankruptcy Clause, apply to any other constitutional powers-and concludes that Katz indeed might apply to the Intellectual Property Clause. Specifically, this Note culls the elusive history of the Clause and frames an argument that a Katz-style sovereign immunity waiver is embedded in the Constitution's Intellectual Property Clause. [PUBLICATION ABSTRACT]