Loyola of Los Angeles Law Review, Vol. 33, No. 4 (June 2000), pp. 1665-1686

Abstract

In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, decided during the Supreme Court's October 1998 Term, the specific point at issue was the scope of Congress's authority under Section 5 of the Fourteenth Amendment to impose liability for damages on state governments. In the Patent Remedy Act, Congress had abrogated the states' sovereign immunity from claims of patent infringement. College Savings Bank argued for the validity of the statute on the grounds that patents are property; that patent infringements are deprivations of property; and that the statute simply and appropriately provides a remedy for deprivations of property without due process of law. The Court agreed that patents are “a species of property,” and that patent infringement could be a deprivation of property. But it rejected the rest of the argument, ruling that “for Congress to invoke section 5, it must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.” In enacting the Patent Remedy Act, Congress failed to meet this standard.

My aim in this Article is not to mount a full-scale inquiry into the Court's reasoning in Florida Prepaid, but to examine just one of the arguments it advanced in support of its ruling. While Chief Justice Rehnquist's majority opinion does not clearly separate one factor from another, it contains three distinct strands of reasoning. The Chief Justice began by noting that Congress had “identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations.” He then pointed out that “Congress . . . barely considered the availability of state remedies for patent infringement and hence whether the States' conduct might have amounted to a constitutional violation under the Fourteenth Amendment.” Third, the Patent Remedy Act swept too broadly in that it covered negligent as well as intentional patent infringements; negligent deprivations are not Fourteenth Amendment violations.

I argue that, in awarding constitutional status to state remedies, Florida Prepaid seems to depart significantly from established law, for the rule has been that the Constitution is violated when the state official acts, no matter what state remedies may be available. Yet the opinion is ambiguous, and the Court does not seem to appreciate the implications of its holding. It will almost certainly have to find a way to cabin the principle it has unleashed. An even better solution would be to repudiate Florida Prepaid's version of the available state remedies argument.

Part I describes the usual role of adequate state remedies in federal courts law—to serve as the means by which statutory and common law rules cut off access to federal courts for litigation involving constitutional questions. State remedies ordinarily have no bearing on whether the plaintiff states a constitutional claim in the first place. A central principle of constitutional law, established in Home Telephone & Telegraph Co. v. City of Los Angeles, is that the constitutional violation is complete when officials act, even if their conduct is not authorized by state law. Part II shows that the ambiguous and confusing opinion in Florida Prepaid may be at odds with the Home Telephone principle in that the Florida Prepaid Court seems to treat the availability of state remedies as a ground for finding that the plaintiff has not even stated a constitutional claim. Assuming this to be so, Part III suggests ways in which the Florida Prepaid principle may be cabined, so as to minimize the extent of the conflict with Home Telephone. In Part IV I turn to the merits of arguing that even if the ruling can be confined to a narrow class of cases, the Court was wrong to treat the availability of state remedies as a ground for denying the existence of a constitutional claim.

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