their argument next in case fourteen eleven seventy five franchise tax board of california versus mr clement mr chief justice and may it please the court the states entered the union saddled with substantial war debts as a result critics of the constitution were quick to point out any possibility that the states could be haled into court by individual citizens without their consent in order to secure a potentially bankrupting judgments when this court opened up the possibility of just such a judgment by allowing chisholm a south carolina citizen to sue the sovereign state of georgia in this court the nation quickly and emphatically reacted with the eleventh amendment eliminated the possibility of such a suit even in this most neutral of federal forums regardless of all that respondents position is that if chisholm had turned around and sued georgia in south carolina a state court in south carolina in its unreviewable discretion decided to exercise jurisdiction over the sovereign state of georgia there is nothing in this era law is once in effect and difference there mr clement which is that states on a par with each other so there's a kind of mutuality so if one state does something to you that you don't like you can turn it around and do it to them and that mutuality also makes it less likely that the state will do that thing to you in the first place because they know that so so i think mr farrer says is the fact that there was this outrage with respect to a federal court might not have registered in quite the same way when states were aware that they were on a par with each other and that they had many weapons that they could use against each other just skating here's why i disagree and because most of the weapons that independent nations would use viz a viz each other to ensure that sovereign immunity as of comedy did not become sovereign immunity in name only are precisely the tools that the state surrendered to the national government in the plane of the convention so if south carolina  mr mr clement you know you couldn't go to war with the neighboring state anymore and that's a difference but you could say if you're going to treat me like that i'm going to treat you like that and you have met ways of dealing with with the state that you wouldn't have with the federal government we're just escaping two points first it's not just the act of war it's the ability to impose trade sanctions it's the ability to withdraw your own passengers all of that is taken away from the states is there anything in our  prudence or constitutional tradition and say states can protect each other by retaliating against each other well that's the second point i was going to make justice kennedy which is it's an odd thing to think that the framers who had just experienced the articles of confederation where they had unsatisfied judgments and the potential that if the state of new york went after the state of georgia because georgia hadn't complied with the requisition for funds that there be civil war the idea that the way they would want sovereign immunity which no one doubted framers were trying to do they weren't trying to adopt a union where there would be signs on state borders that say if you come in here you thereby waive any sovereign immunity and we will hail you into court and allow our citizens to do it instead they were adopting a union where the states came in with substantial war debts and their sovereign immunity and there is no way they would have sacrificed their sovereign immunity which was the key protection for those war debts not any access they commit this is the point that justice ginsburg is making from any acts they commit against a non citizen even if they waive sovereign immunity within their own state well they're all good oh yeah all i have to do is what there's no non citizen of of a state who can ever be held who could ever sue a stay for whatever bad act points just to sort of my or first of all let's take a nevada resident let's say california comes in the nevada resident can certainly sue the state of california in california court if there's a waiver of sovereign immunity and the privileges and immunities clause of article four would protect the nevada citizen from set for california saying well we're going to waive our sovereign immunity as california citizens but not nevada residents so that's one protection that they have the other point is what we're really talking about is that as a starting point is the default upon limits to each others on waivers of sovereign immunity but what would induce them to come together to do that i suppose consideration if they don't think that they're forced into considerations of convenience i mean and california could decide that they have sufficient comedy and respect for each other that it's perfectly fine for california to be sued in nevada court but converse lee they could come and make it contrary decision because of their sovereign immunity and say no if you want to see us come into our courts and then we have these are the thirty four states tell us that they didn't like this rule forty five forty five how come they haven't gotten together and done an agreement among all of them because it would be very burdensome to do that and i think with all due respect they think there already was an agreement among the states through their people that solve this problem and that's the constitution it preserves the sovereign immunity they would have if i could i there's no question that they gave this is why the eleventh amendment they gave up a lot of things to the federal government and i can understand why they thought they needed the eleventh amendment but what makes you think that they gave up their sovereignty with each other with respect to these kinds of issues to think that in the constitution two things principly your honor first is i don't think they actually gave anything up what my friend on the other side suggests they gave up is the right of one sovereign court system to hail another sovereign into that court system and that is a right that didn't exist at the founding and that's at all said that didn't exist  and don't need to respect the other's sovereign immunity the whole distinguished sovereign immunity where you are the king where you are sovereign a states i mean and then other that it's just but when the when the nation was new you will admit that they will know full faith and credit obligation if one state within to respect the sovereignty of that it would be a matter of common right you say comedy i would say as a starting point law of nations but absolutely it is true that when ever you're talking about sovereign immunity in any court other than the sovereign zone you are talking about sovereign every other sovereign immunity principle the principle that emerges from this court's cases is that if the states had preexisting sovereign immunity from a suit and they did not sacrifice it in the plane of convention then they continue to enjoy it as a matter of constitutional right i would have thought you would answer that that the obligation was an obligation of international law that comedy was an obligation of international law in so far as it law that's what this court said in hilton against comedy is not at kind of a full faith and credit but two points are important justice ginsburg first of all although the law of nations as the framing between independent nations was a matter of comedy that didn't mean that there weren't certain principles that were so well established that any nation that didn't respect them would be committing an act of war and first on that list would be the idea that you could not have been in against a foreign sovereign it was unheard of and my friend doesn't disagree with that i think his response to the boss have really had that we you know recognize that there is no automatic immunity for a sovereign nation another right justice ginsburg and again want think that you want to resolve this case on the law of nations immunity principles either in seventeen eighty nine or today say but if you were to do that we would still win because despite the relative of sovereign immunity in the current age you still don't have an impersonal suit for something that's a core sovereign function like tax collection even to this day we can sue france over the exact same situation today but i don't think the way that this court's cases apply the law of nations is the right way of thinking about this rather the right way to think about it is that sovereign immunity at the framing becomes a constitutional princip california is asking you to overrule hall so i think it is fair to say that there is some buyer's remorse on the principle of nevada installed by the sovereign state of california but we're not it's stopped well to make california's join the the didn't but i think that's because they felt that an arm of state already got here so i think you know that that that explains that but i want to make one point very clear which is this court has the full post of state sovereign immunity cases dealing with the federal courts every one of those cases with the every one of the federal court cases and indeed every state sovereign immunity case with the exception of of of all the against maine is a case that's applying sovereign immunity as of comedy because the new federal court system is a floor in ports the sovereigns did not have sovereign immunity as of right in any distinct court system of a superior sovereign or of an independent nation so when this court says well the states had sovereign immunity and they didn't sacrifice in the constitution they're not talking in those cases about sovereign immunity as of right they're talking about sovereign immunity as of comedy so to in the tribal immunity cases where everybody on the scene for mr commit monkey you do it i mean one time as a given and it's saying that the result in all them does not require the overruling of all i would take that that's fine that's true they are different issues i do think they create one anomaly after another i mean chisholm can't sue georgia in a perfectly neutral federal court system can't sue georgia in georgia court but chisholm can sue georgia in the least neutral court available the state of south carolina that doesn't make any sense there's also the anomaly that apparently all the ins mistake was suing maine in maine court if all then would have sued maine in new hampshire court probably for federal law or maybe for state law then that suit could have gone forward it is also anomalous that the tribe apparently have greater immunity than the states even though they're inferior sovereign because you apply the same principles to recognize tribal sovereign immunity and the dissenters in footnote one of those cases where even they recognize all states are different because the are not totally bizarre flows from the principle in the vada that the state maintain the sovereign power to define the jurisdiction of its own courts which is also important sovereign power so if you look at that power then you have to say well what is it in the federal constitution that limits or takes away that sovereign power so that's i think we're i'm left after nevada and now you have a whole set of arguments but they require is for the most part over rule several cases well i don't think so just let me make two points one of which may not be particularly responsive to to say that i think all of this court's close all decisions some of which have been joined actually suggest that the burden is not on me to show where in the constitution it was taken away but that the burden is on my friend to show where the constitution specifically took away the state sovereign immunity where they surrendered but i still think justice pryor i'm not i'm not trying to not get your vote because i think even if the burden is on me to show where the constitution took it away i think i can i think it's implicit but i think i places article three the eleventh amendment and all the provisions that took the diplomatic in war tools away from the states or i'd like to get your response to the second part of this because your job i mean i do that's i'm finding that rather hard and it seems to me intuitively some level correct for the state like nevada should not be able to give less sovereign immunity to california than it gives its own officials so i thought well we're in heaven's name does that come from and that's what's bothering me not like a theory i have all i have so far is this full faith and credit to statutes sometimes exist and there is also when you're giving full faith and credit the competing principle that if you have a policy of your own state that cuts the other way and it's reasonable and so forth you don't give full faith and credit and here if you're following that kind of principle the same kind of principles in the commerce clause to you would say fine nevada since it doesn't give its own people the sovereign immunity doesn't have to recognize california's because of the public policy it's following but as soon as they run out of suffrage in unity which is it fifty thousand dollars i think now they have no reason and therefore they have to follow california's law now i raise that because it's in the back of my mind i've been thinking about it and i don't find in the briefs either that theory or a competing theory about why you can't see where i'm going i  prior and i'm going to give you my best answer on that which is ultimately going to loop back to hall so my best answer on that is the way to think about this is nevada has said we're going to find a vattel law not california law and high up one says that they can do that but then they swim they start to apply nevada's law of sovereign immunity they get to the point where there's a fifty thousand damage cap and they say unbelievably in my view but they say oh well this statute only applies to nevada government agencies and you're not in a vat i get  agency so you don't get the benefit of it now if caliph it rather if nevada did the exact same thing to a citizen of california in a damage cap that applied not the sovereigns but the citizen i read my friend on page fifty two of his brief to say that that would violate the privileges and immunities clause of article four that you couldn't just say well no that's a benefit only for nevada residents so his position alternately is the sovereign is worse off than the citizens which can't be right now i think there are two ways to respond to that complete unama one is to say that although maybe it's not right there in the text of it that the principles of article four words full faith and credit clause provide the same principle the same protection that the privileges and immunities clause applies to a citizen but i think ultimately the better way to look at it is to say the reason the framers put the privileges and immunities clause in article four of the an amended constitution is they realize states could be sued in other states courts so there was a vulnerability they needed to address they simultaneously implicitly recognized that there was no way on earth that a sovereign could be sued in another state's court because of age old sovereign immunity principles so they didn't feel they needed to give express protection to the sovereign the way they did to the cit they assume that maybe i'm wrong that it follows from your argument that a state could adopt the equivalent of the foreign sovereign immunity to act and make make other states suitable in in their state courts for commercial activities not not of its own force i mean i think one way of thinking about this is i don't think one i don't know what you mean no anomaly which is that foreign states can be sued but your sister state k that's strange you know it no i don't think it is strange your honor but i mean i think come at it from a different angle and maybe get to a different place i don't know but i think would be plain as day that the day after the plane of the convention passes the state of south carolina can't entertain a suit against his majesty the king of england in there in south carolina court because of nation principles first or the fact that they yielded the opportunity to do that to the federal government i think in the same way the states a yielded their ability to make determinations make treaties with foreign governments over foreign sovereign immunity they yielded that to the federal government each other what they preserve as a constitutional matter is in immunity from being hailed into each other's courts and mr clement justice scalia's question does suggest that there are sovereign interests on both sides of this right there is one is i want to have sovereign immunity i want to avail myself of sovereign immunity and the other is i want to subject another state to my court system when i feel like it and i want the choice of doing that or reach an agreement with another state that we should all treat each other nicely so when you are you know the states are given up some significant size and t interest there to keep in one but they're also given up one and the question that you have to answer is why was it so obvious that the states would have made that choice rather than the other choice which is hey it's been working out for us just fine to have the choice and to deal with our states on a going forward basis on principles of mutuality justice kagan i think there's two reasons that it is glaringly obvious that the states would have made exactly the choice i'm suggesting one is they weren't giving up anything about that first of all here is what chief justice marshall says about the amended bill of the of the sovereign to suit he says quote one sovereign being in no respect amenable to another he lays it down that as the bedrock principle of international law now it is true that when you're talking about international law every nation has the raw power to disregard international law so the united snakes it in terms of i think if you read the whole opinion that's exactly what he's saying you would have to had i mean think about scooter exchange arises in eight hundred twelve we're already at war with britain so he did have the federal courts would have the raw power to exercise jurisdiction over a ship of france but there's a very good reason they didn't do it because they recognize that asserting that kind of authority would be equivalent to an act of war and that's why i think it's so obvious that the fact that the states did give this up because the authority to bring in a foreign sovereign into your court was unthinkable to that generation as a flat violation of the law of nations and if they did it would be committing an act of war and that's exactly like the other things that they gave up the second reason i think it's clearing really obvious though is that on the one hand they give up something that's in coate in a violation of the law of nations sovereign immunity on the other hand is the single most important issue they're dealing with because of those war debts and that's why they're not going to if they had to make a choose a choice a conscious choice they would gladly give up some in coate right they've never exercised in exchange for it serving themselves from the possibility of an individual citizen suing them in procuring a possibly bankrupt  chief justice and may it please the court since much of the discussion this morning is turned on the possible overruling of divider vs whole i'd like to start a fight might by setting out what i think are the two main is that the board has failed to show that the ordinary political processes in particular an agreement among the forty six states which are now represented before the court saying they all agree there should be absolute immunity  other's courts why they can't reach that agreement and and have that a second effectively be the law going forward without the intervention of this court and without the need for this court to get a record of congress i assume right i'm sorry cases the cure your case that's correct that the question is whether an agreement among the states is an aggregation of state power at the expense of the federal government if that's true then  congress's approval is needed but there are agreements that put money to states some of which are actually called compaq's which do not require the cunt consent of congress and i have no belief that this one would i mean this is not if the states got together and mutually agreed we're going to honor each other's idea of sovereign immunity in our own courts i don't see any reason that congress that in that same foamy quite disruptive of the union that the constitution contemplate in that states would make different arrangements with each other maybe they would freeze other states out you would have states bargaining with each other it seems to me that that's causes great dissension what w disruptive well you do have the forty five states supporting california in this case making the total of forty six so in this particular case there really are not very many states there but if you say we're just going to throw the states back on themselves all the states negotiate with each other that's not part of our constitutional tradition at all well justice kennedy i think yes i do disagree with that i mean there is something that's been set up at the council of state governments called the national center for interstate compacts and its job is to help the state facilitate agreements among themselves and doubters of common interest and there are hundreds of these agreements so the idea that the states should not be able to get together in formulate policies that are mutually beneficial to them and reach them by greenblatt rather than approaching the federal courts and saying over rule one of your prior cases or invented of a principle of federal law to limit the in a way that the board never does that there are two sovereign interests at stake here and one can read the board's briefs and listen to the to reflect argument this morning and one will not ever hear one word about  nevada's sovereign interest here in protecting and compensating lacings mr command says that there are two answers to that one is that they actually never exercised that sovereign interest so it didn't mean very much to them and the other is that in exercising sovereign interest they would be violating norms of international law so that they wouldn't have really thought that that was a significant and exercisable interest so those are his two arguments against right and i don't think frankly either one really carries much weight i mean the first one is the chicken or egg problem in a sense it is true that they were not the states would not exercise their power if we're talking about the late seventeen hundreds if they don't have the power for ten years but they had an exercise the power to subject other states to their jurisdiction nathan versus virginia as an example where with the intervention of the pennsylvania executive officials the pennsylvania courts said no we're not going to exercise your section over virginia but the other side of that of course is that they always had immunity is as a matter of comedy from the other states so if one is looking at the question of how do we think about this looking back in time several hundred years what the solution would the states have made yet or is we really don't know they were if you suspect the states thought that they had retained this power why have you not cited any cases in which this was exercised before nevada versus hall because there basically are no cases where the power was actually sized up to that point the courts i mean the courts of the various states were treating the other states as immune there weren't very many suits filed but immune as a matter of common the but that of course is exactly what the relationships between these sovereigns are all about if one goes back and starts with a foundation sovereign within its own territory has exclusive and absolute authority and therefore if another sovereign is going to come into that territory and act contrary to the laws  it can only do that with the consent of the home sarver that's the principle on which all of this is space so this is although there are obviously two sovereigns involved and a sovereign interest in each case an interest in immunity on the part of the visiting sovereign an interest in having its exclusive an authority over its territory on the part of the home saabs schooner exchange actually tell us you the answer if they come in conflict because the requirement of consent of the words do not prevent a state from being sued in federal court they only prevent a state being sued by citizens of another state in federal court ok nonetheless and  it's also citizens of the same state that cannot sue in federal court but that's not in the eleventh amendment that rested upon it this is what justice hughes said it rested upon manifestly we cannot rest we cannot assume that my letter of the eleventh amendment exhausts the restrictions upon suits against non consent igs states behind the words of the constitutional provisions our postulates which limit and control there is the essential postulate that the that the controversies as contemplated shall be found to be it of a jew just justiciable character there is also the postulate that states of the union still possessing attributes of sovereignty be immune from suits without their consent save where there has been a surrender of this immunity in the plan of the convention in other words the funds says there's an behind the eleventh amendment if the states kemah be sued without their consent now why or why should that apply only to suit in federal courts and not to suits in the state in the courts of other states  may the board suggestion i think is what the court really just needs to do now is put the third leg on the immunity triangle it's already made clear that the states have immunity in their own courts which is the english tradition and that states have immunity in federal courts that's the eleventh amendment so all really the court should be doing now is to draw the last part of that and say they have immunity in the courts of other states but those are all different situations they have the states have immunity in their own courts just as nations do because they are the sole sovereign involved there are two sovereigns when you're talking about immunity in your own courts so that's one separate now to get specifically to the question  schoolie immunity in the federal courts which is broader than the language of the eleventh the member and of course that the federal courts are courts of a different sovereign in a sense of the state court but at the time that the constitution was being drafted and the question of ratification came up this was an issue that was specifically discussed and therefore when the states were concerned about ratifying the constitution because of their war debts they raised questions and the framers like madison and hamilton so on and so forth gave them assurances and that was the deal here you see the assurances were based upon the postulate the assumption that no state of course can be held into the into the courts of another sovereign without its consent that was the answer and that he answer applies not just to being hailed into the into the federal courts but being held in the cour of other of other states that justice scalia said to be blunt about it there is no such postulate i mean if if sovereign immunity is what the board says it was or is that a sovereign can never be sued without its consent in the courts of another state then the entire international world is operating on an incorrect premise state nations can be sued in the united states under the f sovereign immunity as act for commercial tourists i mean excuse me for commercial activities for certain torts without their consent then you can take the republic of austria case the altman case where the republic of austria objects to the united states jurisdiction they say it's outside the f s a they say you don't have jurisdiction over us but the court doesn't say you're right you're you're a sovereign you have it's unthinkable you would be subjected to suit in our courts the court resolved the case against the republic of austria and finds no sovereign immunity so there isn't such a postulate is broadly worded as you suggest how do you explain  louisiana versus louisiana is the second part of the trial that's the question of of a state being sued in federal court and han's of course we had a big perfect sense i mean if one what is the response to that the response to that is the argument just doesn't give proper weight to balance of power and the difference in the balance of power between the federal government and state governments and between the state governments horizontally and when you're to go back again to the formation justice kagan if one is looking at the situation that the states were facing at that time they're forming a new union so they get a say in this because they have to before it actually exists so when they're looking at this what do they see they see as sovereign that is going to be a superior sovereign what does that mean for sovereign immunity purposes it means that if that that's that's the state of play with respect to the other states however there's an equality they could subject other states to suit in their courts but if they did then they might be subject to suit because comedy breaks you know and why do you say it was so so clearly established that a superior sovereign could not be sued in the courts of a lesser sop is that what i'm sorry i thought we invented that system of two sovereigns a superior sovereign and a will i i just want you to some point to give three minutes i mean i will except for argument's sake that the great issue in philadelphia in seven hundred eighty seven was a division of power between the federal government and the states not questions of what states could do in respect to each other and they wrote what they wrote but that's what they're thinking of and you're saying the second is what's  and therefore all except now i would like just two minutes on lots of aa groups and what is bothering me is i really don't see how to vada can say we're going to give immunity to our own state but we won't accept california similar immunity now that doesn't seem intuitively right but if i look at the constitution i see it says this it says full faith and credit shall be given in each state to the public acts of all the states california has a public act which gives immunity nevada is not giving full faith and credit to that i think those acts can sometimes include statutes or common law rules or decisions of court so say how does co nevada get away with that answer because they have a strong public policy in not doing it namely the policy of they don't give anybody including their own officials that kind of immunity if that's the answer that answer runs out of steam at the very point that they try to give officials more immunity than california is get now that you see how i've lined up that legal reasoning with what seems intuitive but i have no idea to tell you the truth about whether there is precedent for that about what that might in fact get us into trouble on or itself so i would you must of thought through this if i look in the briefs the answer this question of equal treatment i can't find much but i think th e important port there is that the only federal basis that they have really identified that conceivably could support this claim is the full faith and credit clause because it is a federal law it's part of the one applies the full faith and credit clause remember of course the court did this in high it won and rejected california's argument that its immunity law giving absolute immunity has to apply and divide the not divide has to apply that so if the court has already crossed that bridge at least to some extent i agree with you at that point there was not a judgment so there was no comparison of the damage but then the question is what is the full faith and credit standard that this court applause and that is the same standard that the court applied and hired one and that is if nevada is competent to legislate it can apply its own law it doesn't have to apply california law at all and nevada is only law unless you try to rewrite it on some basis which will also get california's law does not give immunity to other states  of but let me go to your point here no i understand it better but i just what i want to be precise about this because i want to just walk through it step by step all i'm saying is nevada law does not provide a cab for fish oils from others and that in what trouble will i get into with precedence well constitution or something else if i were to write the words that i suggested because once they go beyond their own immunities they run out of steam and they have no reason for not following california's law you don't think that's right is no requirement in the full faith and credit clause that goes on top of or you competent to legislate with respect to the torts issue in other words when it when a state says we're going to apply our own law to a lawsuit that it is competent to legislate about his legislative jurisdiction it doesn't have to answer a second question that says well you know we can allow you to do that can you show us a public policy of yours that would be offended by applying the law but in marriages in all kinds of things i've seen the public policy language when when there is a right for a state to ignore the public act of another state where there is haven't violated the constitution when you're applying your own laws doesn't mean that the way that your decision to apply your own laws is not challengeable as a matter of state will i'm not fun i guess i'm a the california law that says about sovereign immunity is you can't be sui can't be sued in our courts i don't think california has a law that says we can't be sued anywhere do they and if they did would they have the jurisdiction to say that i don't i don't think that well because of what we read what the court s hired one they don't have the power to enforce their own immunity in their laws on another state if that's what's being given full full faith and credit under the argument here that if you're riginal argument that the fact is that the board has changed its argument about full faith and credit and that's why it's confusing in its brief riginal and the board said we are asking that nevada apply california's law of immunity now they can ask them that ask that it be applied totally because that was already rejected in high one so they say above the fifty thousand dollars that's what we're saying apply california's law of immunity above the fifty thousand dollars mark in their reply bridge however that pages four  well out in its literal terms simply doesn't work california's law of immunity doesn't apply to california so what what the board is groping for is some sort of loose principle that the court could apply to override a state's judge about how to apply its own laws of immunity all in the interest i might note of promoting states but leaving that aside the question is where would that come from if let's let's assume hypothetically that the california brought it original action in this court and it said we want an injunction ordering chalo if you know we're going to voted to apply its damages cap their brief in federal law is the full faith and credit clause and for the reasons i've explained if you plied to the standard full faith and credit constitutional provision that does not help comedy as a voluntary doctrine among states and their equal footing doctrine seems miles away from anything we're talking about secondly even if the court had the power some federal law generally maybe federal common law which is always something the court i guess could create if necessary why would they particularly choose this route because a low it sounds perfectly logical and it is a benchmark i mean the wagner uses it not without this one exception but nevada uses it to knock down punitive damages claims against negligence all of that as a benchmark it's a perfectly fine rule for states to choose but is a mandatory federal rule to impose on the states the above fifty thousand well i think the it's explanation of that i think actually makes quite good sense they say you know when we're compensating our people we're not just compensating compensation serves two purposes it serves the compensation it helps the person obviously cope with their injuries and i should by the way point out that under the overruling of nevada vs whole anybody who's injured by a state gets nothing but just that's an aggression back to the main point when when you're talking however about a situation with the officials of another state we also want we have an element of protection trying to protect our citizens we don't need the same protection from our own government we hire these people we train them we supervise them we can keep things from getting out of hand like they did here where somebody just sends out on a vendetta against a particular taxpayer we can stop that but not when it's another state so the idea of having war compensatory damages in order to discourage that kind of behavior it actually seems to be quite reason you seem to be arguing that it no matter how hostile one state is to another there would be no more quire meant there would be no requirement for equal treatment  making that argument seems to point to the need to overwhelm about a person's hall you know that's the case suppose nevada really were completely hostile uniformly consistently hostile to california on issues of collection of further would be no there would be no remedy for that and you can say well the states could enter into an agreement but if it's not in the interests of both states they would enter into the agreement well i don't see why it isn't in the interests of both states i mean it is always true you could have an outlier state but but just to let me take the example below of california and nevada because again if we're looking at a quality here which is supposedly what the equal treatment principle is all about and i put equal treatment principle in quotes if we're looking at that another possible way of looking at things which states and nations have done for years is reciprocity now if you look at this case from the standpoint of that's exactly the same thing that happened here california was subjected to all the unlimited compensatory and applying it had in the middle damages for its own people but that's correct just as cancer but if you're looking at the relationships between the two states which is what we're looking at here the question of how states treat each other reciprocity actually is more important it's no solace to nevada to say well you had to pay on limited damages in california but they only have to pay fifty thousand dollars to your citizens because they have a different rule that doesn't help nevada is being treated unequally whether whether the california rule was deferred or not even if milan it didn't want to  about this idea that there could be something that this court could impose on the states there are things for example that could be drawn from international law that might in fact provide some sort of check if there were truly universal values equal treatment is not a universal value for example the united states is an example in its own courts for torts based on battery  assault and false arrest foreign sovereigns are not under the foreign sovereign immunity as act the foreign sovereign to do not have immunity for those same torts so if there's an equal treatment principle at large in the world and it's universal then that seems to me to be something that the united states cannot do but nobody suggests that that's inappropriate because these are all comedy based ultimately sovereigns can serve their own interests if they're willing to accept the possibility that words will do that as well so when i go back to this idea is there something out there i don't think one can ever completely rule that out when you're talking about arrangements among states in a boeing sovereigns because they obviously have dignity they are sovereigns and that's one of the reasons that they are treated so much with so much comedy but the reason that they don't have the exact same immunity is the historical basis is different the indians and their particular relationship with the federal government or is an explanation for why they essentially partake of the same kinds of of immunity that the federal government does thank you counsel thank you for minutes thank you mr chief justice in least the court three basic points in rebuttal first of all my friend on the other side quite rightly points out that the state's burden with their war debts were very very concerned that they would be hailed in front of the new federal courts so they sought an assurance and the clearest place to see the assurance that they got its federalist number eighty one where alexander hamilton makes clear that there's nothing to worry about here because they have sovereign immunity and they have sovereign immunity as an inherent aspect of their sovereignty and that assurance then becomes the postulate that this court applies in hans against louisiana and applies in monaco against mississippi and all of these other cases where the immunity that's provided by the constitution is actually greater than the text of the eleventh amendment the assurance and the postulate are one in the same now it may be that in the world of international relations we've wandered away from the hamilton federalist number eighty one understanding but i don't think that matters if it's constitutionalized as it is in every other context then the understanding in seven hundred eighty nine is what controls now as to the all important point of this balance that you referred to justice kagan i do want to be as emphatic as i can that the states were not giving anything they thought they possessed and i came upon a quote from edmund pendleton explained talking about sovereignty and he said the following seven hundred ninety two if you want to find this is volume of the documentary history of the supreme court he said i have been taught by all writers on the subject that there is no one earthly tribunals book for whom sovereign independent nations can be called and compelled to do just now i think that's pretty emphatic and i think a pretty emphatic we suggest that on the one hand they weren't giving up anything that they could really exercise on the other hand they were desperately afraid of these war debts and they were desperately wanted to ensure that they would immunity i don't think the balance is even close and what i think so problematic about respondants position is that he seems to say that at the precise moment that that states were going to give up all of the tools that nations used to make comedy a reality that the unilaterally disarmed they give up all those tools and all they got was sovereign immunity as a comedy which my friends position makes clear is as voluntary as can be and it's just a matter of grace there's nothing that supports  to so i just want to finish with with some anomalies here because we've talked about a couple of them we've talked about this idea that the privileges and immunities clause would prevent nevada from doing this to a citizen here's another anomaly now my friend suggested briefly as a parent that a call that there's nothing that's these these these poor nevada citizens are going to be able to do one thing they can do is go to california and sue consistent with california's waiver of sovereign immunity as we point out in the reply brief there are some remedies there but the other thing they can do as justice kennedy pointed out for the court albany is there still the possibility of an individual capacity suit against one of the california officers and here's something anomalous if you sued the california officer who is presumably a california resident they would have the protection of removal to federal court so they did least be given a neutral federal forum when my client tried to remove here they were confronted with mr hyatt's quite correct objection that the eleventh amendment prevented removal to federal court but my goodness you have now converted the eleventh amendment clearly designed to enhance the sovereignty into the states of the states into what chief justice rehnquist called in a hall an albatross around their neck that they are the one party that is least favored even compared to an ordinary lit that can't be right and of course the granddaddy of all of the anomalies here is the idea that chisholm could have sued georgia in south carolina state court this court doesn't lightly overrule its precedents but when it's faced with an anomaly that dramatic and that inconsistent with the founders understanding it's time to overrule him and i just ask you to enter on that last point i think this is a very hard case straight up but it's not straight up right you need a special justification on your side so what justification by special justification is workability consistency with precedent those are all of the same and lack of reliance interest i mean the special justification is there but then this court elaborates a variety of principles that govern when it over precedents and i think all of them point in our favor thank you your i thank you counsel the cases submitted