Re: Florida Pre-paid v. College Savings Bank

On Thu, 24 Jun 1999, Jason Vogel <jasonvogel[_at_]ibm.net> wrote:
>
> Alternatively, in Florida Pre-Paid, the Court held that patent
> infringement by states is not a violation of due process (if it were,
> Congress could remove state 11th Amd. immunity under its 14th Amd.
> enforcement power) because adequate state remedies, such as deceit
> and unfair competition, may exist. This may not be so, however, in
> copyright law since state actions like the one proposed above may be
> completely preempted. Under this logic, the copyright act's state
> immunity removal provision in s511 might well be within Congress's
> 14th amendment power.

This is a difficult argument to make. Under this analysis, the Eleventh Amendment can always be finessed by a federal law under the fourteenth amendment (if it implicates property) simply by preempting state actions, if any, that might otherwise have been available.

Perhaps an alternative analysis might be that the federal preemption is either unconstitutional or inapplicable with respect to its impact upon individual remedies against the state under the Eleventh Amendment, and hence, things like common-law copyright (even for fixed works of authorship) might be brought against the state?

Another approach, of course, is to seek just compensation under eminent domain.

Andrew C. Greenberg
<werdna[_at_]gate.net> Received on Mon Jun 28 1999 - 02:40:59 GMT