Comments on: The Federal Government as Public Nuisance

By: Adam Greenwood

Adam Greenwood — Mon, 30 Nov -0001 00:00:00 +0000

Wouldn’t the feds have sovereign immunity on a common law claim like that? Or did sovereign immunity work differently back in the day?

By: Nate

Nate — Mon, 30 Nov -0001 00:00:00 +0000

I have no idea, and the case never got to trial. On the otherhand, the usual remedy for a public nuisance is an injunction rather than money damages, so sovereign immunity wouldn’t necessarily be implicated. Also, you could have braught suit against the U.S. Army, or perhaps Colonel Connor, the officer in charge. While they might have some kind of ministerial or military immunity, they would not have sovereign immunity.

Of course, I have no idea what the doctrine of sovereign immunity really looked like in the 19th century. I suspect that there wasn’t much of a doctrine, since the government didn’t do enough to get sued a great deal, leading to judicial elaboration. That joyous state of affairs had to await the arrival of the modern regulatory state, which first began stirring after the Civil War.

By: Adam Greenwood

Adam Greenwood — Mon, 30 Nov -0001 00:00:00 +0000

I think you’re right.

I’m also pretty sure that the case allowing the fiction of suing the officer in his personal capacity dates from the 1890s.

By: Jim

Jim — Mon, 30 Nov -0001 00:00:00 +0000

Any chance of having portions of BYU’s dress code declared a public nuisance?