Document Type
Article
Publication Title
Seton Hall Legislative Journal
Abstract
This article examines an infrequently considered question in the literature about federal jurisdiction: whether Congress is subject to any constitutional constraint when it consents to being sued in federal court. Even assuming that the sovereign’s consent is a necessary condition to suit in federal court, this article argues that the waiver of immunity cannot confer jurisdiction in a manner or through a process that circumvents constitutional requirements. This question, narrow but important, has not received sustained attention in the otherwise voluminous literature on Congress’s power to regulate the jurisdiction of the federal courts. Most discussion engages with the problem of whether Congress can strip the courts of jurisdiction to hear particular kinds of claims or, having conferred jurisdiction, to withhold power to issue specific remedies. A small sub-set of the literature distinguishes between jurisdictional regulation and waivers of immunity. The current focus is on an immunity-waiver that confers jurisdiction to resolve tort claims against the United States, but then withholds jurisdiction and extinguishes such claims on unconstitutional grounds—a problem that implicates not only individual rights but also the decisional independence of the Article III courts.
First Page
243
Volume
39
Publication Date
2015
Recommended Citation
Hershkoff, Helen, "Waivers of Immunity and Congress's Power to Regulate Federal Jurisdiction—Federal-Tort Filing Periods as a Testing Case" (2015). Faculty Articles. 569.
https://gretchen.law.nyu.edu/fac-articles/569
