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Michael Jacobs <mjacobslaw@comcast.net> wrote:
Unfortunately there is a specific exception in the Federal Tort Claims
Act (FTCA) that the waiver of sovereign immunity provided in the FTCA
does not apply to claims arising from delivery, late delivery, or
failure to deliver, mail. I'm not aware of any other exception to
sovereign immunity that would allow such suits, but maybe someone else
can suggest one.
Not relevant to the original question, but is there anybody else out
there who thinks that "sovereign immunity" is just plain wrong for a
democracy?
The concept orginally came from monarchies, where "the king can do no
wrong".
But we do not have a monarchy, nor (at least in theory) a king who can
do no wrong. We have a government "of the people, by the people, for
the people". It _can_ make mistakes and/or act maliciously (via its
agents if not on its own), etc.
Write your congresscritters and ask that the concept of sovereign
immunity be junked.
--
I pledge allegiance to the Constitution of the United States of America, and
to the republic which it established, one nation from many peoples, promising
liberty and justice for all.
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Barry Gold wrote:
Write your congresscritters and ask that the concept of sovereign
immunity be junked.
Before going off here on this, I suggest you examine all the places that
sovereign immunity exists and see what it's loss would entail. Just one
little example: the various State's and Indian Nations are recognized as
having sovereign immunity which allows them their legal independence from
one another and to some extent from the Federal government. Part of what you
call for would require an amemdment as the 11th establishes this concept for
States while other acts do so for foreign nations.
Worse, a loss of this would cause a crippling spate of suits against various
government agencies. Now, I"m not a big government supporter, but do
recognize that I'd be a lot worse off, as would you, if my garbage
collection was stopped due to some suit from a neighbor claiming that his
garbage was spilled while mine wasn't. Again, I suggest you study up on all
the places where sovereign immunity is applied and reconsider if you really
would want to live where this didn't exist as a legal concept.
-paul
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bgold@nyx.net (Barry Gold) wrote in news:o4rr30handctc6gdercsd5hnca8l4r35a5
@4ax.com:
Not relevant to the original question, but is there anybody else out
there who thinks that "sovereign immunity" is just plain wrong for a
democracy?
I don't think so. In today's litigious society, sovereign immunity serves
another purpose. I think that without sovereign immunity, it would be
extremely costly for government units to perform their functions. I
believe it would send taxes through the roof, and/or cause mass public
service cuts.
Governments can and do carve out exceptions to their own immunity. I think
it's better to just adjust the exceptions.
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On 26/2/04 13:00, in article o4rr30handctc6gdercsd5hnca8l4r35a5@4ax.com,
"Barry Gold" <bgold@nyx.net> wrote:
Not relevant to the original question, but is there anybody else out
there who thinks that "sovereign immunity" is just plain wrong for a
democracy?
The State cannot be sued without its consent, and it cannot be held
responsible for the errors of its agents. And if you think immunity of the
feds is unfair and, sometimes, outrageous and overreaching, what about the
11th Amendment and the Seminole case?
http://laws.findlaw.com/us/000/u10198.html
Buy insurance. Protect yourself.
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On Thu, 26 Feb 2004 08:00:19 -0500, bgold@nyx.net (Barry Gold) wrote:
Not relevant to the original question, but is there anybody else out
there who thinks that "sovereign immunity" is just plain wrong for a
democracy?
There are a number of reasons why the concept makes sense for our
government.
First, the doctrine of sovereign immunity only applies in cases in
which the damage to an individual is accidental. If the government
damaged someone deliberately, it would be a violation of
constitutional due process, or a "taking" without just compensation.
Second, the concept of sovereign immunity is really an example of
judicial restraint. Without the concept, judges could decide when
governmental funds should go to individuals. But judges have decided
that, in cases of accidental damages, the legislature should decide
what to do and not the judges.
Without the concept of sovereign immunity, the courts might be able to
hamstring the government. Do you really want governance by lawsuit?
The Supreme Court stated that "It is not a tort to govern," and I
think that's a good reason why the government should not be sued
without the approval of the legislature.
The concept orginally came from monarchies, where "the king can do no
wrong".
Which was a maxim of equity meaning that the king does not have the
power to do wrong, not that the king was incapable of doing any wrong
(or was free to do wrong).
The original Latin maxim was "Rex non potest peccare," which
translates as "The King does not have the power (or is not able) to
make a mistake (or sin)." The maxim was used by the English courts of
equity to enjoin the ministers of the king from doing something that
was against the law. The courts could not enjoin the king himself,
but they could enjoin the ministers of the king, because the king did
not have the power to order them to do something that was wrong.
*Dan Evans
*"One is not superior merely because one
*sees the world as odious."
*Francios Rene de Chateaubriand (1768-1848).
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It seems "Paul Cassel" wrote in misc.legal.moderated:
Before going off here on this, I suggest you examine all the places that
sovereign immunity exists and see what it's loss would entail. Just one
little example: the various State's and Indian Nations are recognized as
having sovereign immunity which allows them their legal independence from
one another and to some extent from the Federal government. Part of what you
call for would require an amemdment as the 11th establishes this concept for
States while other acts do so for foreign nations.
I think you are confusing "sovereignty" with "sovereign immunity".
A State (plural: States not State's, by the way) could give up its
sovereign immunity by statute or by amendment to its constitution,
allowing itself to be sued just like any other legal entity. This
would have precisely zero impact on its legal independence vis-a-vis
the Federal government, other States, and the Indian tribes.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Cortland County, New York, USA
http://OakRoadSystems.com
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It seems "Paul Cassel" wrote in misc.legal.moderated:
the various State's and Indian Nations are recognized as
having sovereign immunity which allows them their legal independence from
one another and to some extent from the Federal government.
And I replied:
A State could give up its sovereign immunity by statute or by
amendment to its constitution, allowing itself to be sued just
like any other legal entity. This would have precisely zero
impact on its legal independence ...
Just for clarity: I said this was _possible_, not that it was
_desirable_.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Cortland County, New York, USA
http://OakRoadSystems.com
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First, the doctrine of sovereign immunity only applies in cases in
which the damage to an individual is accidental. If the government
damaged someone deliberately, it would be a violation of
constitutional due process, or a "taking" without just compensation.
I disagree. All intentional torts are not constitutional violations. An
example is malicious prosecution. Albright v. Oliver held that prosecution
without probable cause is a constitutional tort actionable under 1983 only if
accompanied by incarceration, loss of employment, or some other "palpable
consequence".
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I think you are confusing "sovereignty" with "sovereign immunity".
A State ... could give up its
sovereign immunity by statute or by amendment to its constitution,
allowing itself to be sued just like any other legal entity. This
would have precisely zero impact on its legal independence vis-a-vis
the Federal government, other States, and the Indian tribes.
Political subdivisions of the USA, and Indian tribes for different
reasons and in different ways, are sovereign internally but not
externally, except to the degree that foreign nations choose to
attribute quasi-sovereign qualities to them. Thus: the mission of the
province of Ontario in London has diplomatic status and immunity, but
the mission of the state of New York has neither, and is subject to UK
taxes. (The UK chooses to treat representatives sub-sovereign entities
of Commonwealth nations as diplomatic agents.)
The status of a subsovereign entity and the effects of its acts abroad
depends on recognition: certain acts of Ciskei and other homelands
were recognized during the Apartheid era as acts of a constituent part
of South Africa. It took a statute to enable divorces pronounced in
breakaway Rhodesia to be recognized in Britain (because the judges
were not recognized and Rhodesia was deemed a British territory). The
status of persons in the Turkish Republic of Northern Cyprus, Taiwan,
Republika Srpska, Somaliland, Transnistria and other anomalous
self-claimed autonomous and "sovereign" territories is anomalous.
Canadian bands are not sovereign but they are distinct political
entities with rights. Native American tribes are "sovereign" only by
historical accident (how could they sign "treaties" if they weren't
"sovereign"?) It is by extension that the Seminole case applies to
U.S. states as well. Internationally, none are sovereign. The status
of a First Canadian in the USA and of a Native American in Canada
depends on the Jay Treaty, between the USA and Britain, which Canada
interprets somewhat less generously than the US does. (The status of
the Texas Band of Kickapoo Indians, partly in Mexico, depends upon
statute:
http://www4.law.cornell.edu/uscode/25/1300b-11.html )
So much for sovereignty and status.
The King could be sued only by consent and only in his own courts. The
Foreign Sovereign Immunities Act was part of a major movement that
disposed of immunity for commercial acts of foreign sovereign states
and entities. The (sovereign and diplomatic) immunities that remain in
the most outrageous situations (immunity from suit for road traffic
accidents, for exampe) has been disposed of by insurance (or, in the
case of self-insurance by statute). Anti-direct-suit clauses do not
apply where the insured is a sovereign or diplomatic party.
Constituent parts of sub-sovereign entities (U.S. states with domestic
"sovereignty" of some kind and degree) are not sovereign. Orange
County could file for bankruptcy.
U.S. law teaching traditionally confuses domestic with foreign issues,
especially in matters of conflict of laws. It's done that with
"sovereignty" and "sovereign immunity" too, to some extent. The limits
of sovereign immunity of states and tribes is shown by the fact that
the US government can disregard at will a ratified treaty with an
Indian tribe. Its ability to do the same with states is circumscribed
by expansive interpretation of the 11th Amendment by the present and
recent Supreme Court .
The Yanomama peoples are recognized as protected indigenous people.
http://www.rambles.net/good_yanomama.html
But a Yonomama chief (if there is one) is just another Brazilian
citizen once he comes to the USA. And the Kickapoo statute
demonstrates how, absent treaty, neither tribe nor member has any
status (sovereign or indigenous) outside his or her or its own
territory. Indigenous peoples' spokespersons are still wrestingly with
this in international forums.
Multi-state compacts (which by a possible error of interpretation and
extension of the Constitutional term "compact" to relations generally
are sometimes subjected to Congressional approval) have no "sovereign"
implications abroad: the Port Authority of New York and New Jersey is
just another commercial venture in England, and its representative
pays income tax to Britain. (On the other hand, its former
representative there, a US citizen now retired, living in the UK and
receiving a pension, does not pay income tax on that because such
pensions are deemed paid by a subordinate entity of the USG and under
the US-UK tax treaty are taxable only in the US and not in Britain.)
Just some musings to show how complex this subject can be.
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