The Asymmetry of State Sovereign Immunity

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\u27 immunity in federal court is not symmetrical to the States\u27 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\u27s remedial obligation under the Due Process Clause falls upon the State\u27s courts. This resolution respects both a State\u27s constitutional right to avoid private lawsuits and an individual\u27s constitutional right to just compensation

U.S. Torture as Tort

Now that the United States has used torture in the war on terrorism and the victims of this torture have begun to sue, it is useful to analyze the potential liability of the United States and its officials for torture under current domestic law. This Article conducts that analysis, and, based on it, assesses the adequacy of current law. The Article concludes that the United States and its officials have no more than minimal liability for torture under current law. The Article also concludes that current law is inadequate. It is inadequate because it is based on considerations of when the government should be liable for mere torts, and official torture is far removed from ordinary torts. The Article argues that, instead of being treated like a tort, torture should be treated like a civil rights and a human rights violation. Specifically, the United States should be liable for torture under at least the same circumstances as units of local government would be under the civil rights statute, 42 U.S.C. § 1983; and U.S. officials should be liable for torture under at least the same circumstances as state and local officials would be under § 1983, or as foreign officials would be under the Torture Victim Protection Act of 1991