Overcoming immunity: The case of federal regulation of intellectual property

The Supreme Court's decisions in Seminole Tribe v. Florida and Alden v. Mai ne have recognized a broad state sovereign immunity that Congress lacks pow er simply to override. In practice, the principal result of these decisions is to disempower Congress, when legislating under Article I of the Constit ution, from subjecting an unconsenting state to damages liability in suits brought by private parties. This Article examines the importance of the constitutional foreclosure of t hat remedy, and the options open to Congress should it wish to compensate f or the unavailability of that remedy by providing other means to deter and redress violations by states of federal intellectual property rights. The a nalysis focuses on the federal intellectual property statutes because the C ourt has already declared two of these statutes to be unconstitutional incu rsions upon state sovereign immunity, and because, in response to those dec isions, the executive and legislative branches have begun to explore legisl ative alternatives. Most of this article's analysis is equally applicable, however, to other statutory schemes that Congress has enacted, or might ena ct, under its Article 1 powers. Four princpal strategies are examined: (1) creation of a narrow cause of ac tion for those violations by states that can also be viewed as deprivations of property without due process; (2) reliance upon suits against responsib le state officials for damages to be paid by them personally; (3) authoriza tion of the United States to sue the states for damages, coupled with a mec hanism for enlisting private initiative on behalf of the United States; and (4) conditioning the conferral to the states of federal benefits upon the states' waiver of immunity from suit. In general, each of these four approa ches raises an intersecting set of practical and legal difficulties; none p rovides a surefire and easy alternative to the remedy precluded by the Cour t's decisions. In that respect, the analysis suggests that the Court's stat e sovereign immunity doctrine, although viewed by some as being of secondar y importance (because it does nor preclude federal regulation of the states altogether but merely restricts the available remedies), is in fact a matt er of considerable constitutional and practical importance.