Judge Wood issued a lengthy dissent from a three-judge Seventh Circuit panel’s refusal to recognize the University of Wisconsin’s waivers of sovereign immunity by litigation conduct in Board of Regents of the University of Wisconsin v. Phoenix International Software, Inc. While the facts of the case are rather complicated, Judge Wood devoted her final paragraph to waxing poetics about capitalism, private ownership, and economic freedom.
Capitalism and private ownership have served the United States well. Even though there is no clause in the Constitution explicitly committing this country to such an economic system (although the Takings Clause of the Fifth Amendment may come close), the antitrust laws have been called quasi-constitutional, and there seems little doubt that economic freedom is high on the list of cherished rights. See, e.g., United States v. Topco Associates, Inc., 405 U.S. 596, 610 (1972) (“Antitrust laws . . . are the Magna Carta of free enterprise.”); Northern Pac. R.R. Co. v. United States, 356 U.S. 1, 4 (1958) (“The Sherman Act was designed to be a comprehensive charter of economic liberty[.]”). At a minimum, this public policy should provide a rule of construction for courts considering questions of state sovereign immunity. At a stronger level, these considerations may yet persuade the Supreme Court to take up the question whether the scope of the sovereign immunity enjoyed by the states should be limited in the same way that sovereign immunity is limited for foreign nations, such that an exception to immunity would exist for commercial acts.
Damn. I still feel bad about her snub for SCOTUS. Let’s see if Justice Kagan can match this.
H/T How Appealing