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Waiving Sovereign Immunity In An Age Of Clear Statement Rules, John C. Nagle

Journal Articles

The Supreme Court has been creating clear statement rules faster than commentators can keep track of them. At their strongest, clear statement rules treat all statutes as maintaining the status quo unless Congress clearly states its contrary intention in the text of the statute. Because clear statement rules "foreclose inquiry into extrinsic guides of interpretation," they eliminate any need—or opportunity—to glean evidence from the structure, purpose, or history of a statute to inform a determination about congressional intent. But the Court has vacillated regarding precisely what Congress must do to satisfy clear statement rules. Sometimes broad general language suffices; sometimes …