Re: Any news on College Savings Bank oral arguments?

On Thu, 22 Apr 1999, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> There was quite a good report on Wednesday in the New York Times.
> Several of the conservative justices seemed to be of the opinion that
> banning suit in federal court wasn't too troubling, especially if the
> state provided a remedy in its courts.

Both the report in the NY Times and that in the Cal Law / Law News Network, as well as the useful commentary on this listserv, seem to assume that allowing plaintiffs to sue state governments in state courts for patent, copyright, or Lanham Act (federal trademark) infringement will not present any great difficulties, other than perhaps the multiplication of case law.

However, another case recently argued before the S. Ct. presents precisely the problem of what happens when the state court itself refuses to exercise jurisdiction over federal claims, on grounds of state sovereignty, AND the state itself provided no comparable remedies through state statutes. Thus, the Supreme Judicial Court of Maine upheld the trial court's dismissal of a state employee's suit against the state government on a federal overtime pay statute. Alden v. Maine, 1998 ME 200, at paragraph 13 (Me.), cert. granted, 119 S. Ct. 443 (1998). (this opinion is on the website of the Maine judiciary).

If Alden gets upheld by the S. Ct., and College Savings Bank (i.e., the Fed. Circuit decision) gets reversed, then patent / copyright litigators will have to hope that either (1) state courts will be amenable to hearing patent/copyright in their courts, or (2) if not, that the state legislatures will enact comparable state statutes. The latter option is probably not feasible under Article I, leaving only the former.

My personal opinion is that, regardless of how the S. Ct. decides Alden, they should affirm the Fed. Circuit on College Savings (and reverse the Third Circuit on College Savings). This will have the effect of casting doubt on the Fifth Circuit's 1998 opinion in Chavez v. Arte Publico Press, which had held that the Copyright Act did not abrogate a state government's immunity on suits in federal courts.

Alan Kabat
Washington D.C.
<alankabat[_at_]aol.com>

P.S. To our international readers -- you can be thankful that your countries do not have these complex yet interesting problems of federalism and state's rights! Received on Mon Apr 26 1999 - 03:00:29 GMT