Re: Florida Pre-paid v. College Savings Bank

On Wed, 23 Jun 1999, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> Supreme Court rules on state sovereign immunity for patent infringement.
>
> Today the Supreme Court issued its opinion in the case of Florida Prepaid
> Postsecondary Education Expenses Board v. College Savings Bank. In this
> case, Florida Prepaid, a Florida state entity, sought to dismiss a claim
> against it for patent infringement, on the ground of state sovereign
> immunity under the 11th Amendment.
>
> The court also held that the 14th Amendment's prohibition on taking
> property (including, it was argued, a patent property right) without
> compensation did not provide a away around the immunity.

     I hate to quibble (actually I love to quibble), but the Court did not address the Just Compensation Clause question. Unfortunately, the Court mentioned that "The United States declines to defend the Act as based on the Just Compensation clause." The opinion does not further discuss whether infringement is a taking of property without just compensation. Instead, it examines the plaintiffs' claim that their property was taken without due process, a different and less plausible claim that brings into play the doctrine of Parratt v. Taylor and Hudson v. Palmer, doctrines that are irrelevant in takings cases. There is little doubt in my mind that takings claims against the states are still viable, and perhaps now the only way to go. But we shall see.

     Paul Heald
     <heald[_at_]arches.uga.edu>