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.