Brief for Law Professors as Amici Curiae Supporting Petitioners, Allen v. Cooper, No. 18-877 (U.S. Aug. 13, 2019).

Authors

• William J. Rich, Washburn University School of Law
• Richard L. Aynes, The University of Akron School of LawFollow
• James W. Fox Jr., Stetson University College of Law
• Wilson R. Huhn, University of Akron School of Law and Duquesne University School of LawFollow
• Jeffrey D. Jackson, Washburn University School of Law
• Marcia L. McCormick, St. Louis University School of Law
• William G. Merkel, Charleston School of Law
• Bryan H. Wildenthal, Thomas Jefferson School of Law

Document Type

Court Filing

Publication Date

8-13-2019

Abstract

The Copyright Remedy Clarification Act of 1990 ("CRCA") validly and unambiguously abrogated sovereign immunity for copyright infringement. The Fourth Circuit, however, held that Congress lacked authority to abrogate Eleventh Amendment immunity. In reaching that decision, the court failed to consider Congress's authority to abrogate sovereign immunity for "actual" violations of the Privileges or Immunities Clause of the Fourteenth Amendment. From the Slaughter-House decision in 1873 to McDonald u. City of Chicago in 2010, this Court has repeatedly explained that the Privileges or Immunities Clause protects statutory rights that "owe their existence to the Federal government." See the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1873). While the Court has used that phrase to reject arguments favoring incorporation of purportedly "fundamental rights," it has rarely had occasion to ask what rights do fit within the scope of this guarantee. This Court's precedents, Congress's enactments, and academic scholarship all establish that intellectual property rights-such as copyrights-are "privileges" of federal citizenship. Indeed, it would be difficult to identify another category of statutory rights that more clearly falls within the sphere of "privileges" that "owe their existence to the federal government." Thus, under this Court's decision in United States v. Georgia, it is clear that the CRCA validly abrogated sovereign immunity for a state's "actual" violation of a citizen's constitutional rights. See 546 U.S. 151, 158-59 (2006). As such, this case provides a perfect vehicle for this Court to clarify both (1) the scope of the Privileges or Immunities Clause in a manner that will bring both clarity and consistency to our understanding of the Constitution as well as (2) the doctrine of congressional abrogation of sovereign immunity for actual constitutional violations.

Publication Title

U.S. Supreme Court

Recommended Citation

Rich, William J.; Aynes, Richard L.; Fox, James W. Jr.; Huhn, Wilson R.; Jackson, Jeffrey D.; McCormick, Marcia L.; Merkel, William G.; and Wildenthal, Bryan H., "Brief for Law Professors as Amici Curiae Supporting Petitioners, Allen v. Cooper, No. 18-877 (U.S. Aug. 13, 2019)." (2019). Con Law Center Amicus Briefs. 11.
https://ideaexchange.uakron.edu/conlawakronamicus/11