Document Type

Article

Publication Date

Spring 2022

Abstract

Antagonized by half a century of insouciance toward federalism boundaries, the "New Federalism" revival began under Chief Justice Rehnquist. As part of this revival, the Rehnquist Court substantially restrained Congress's authority to regulate commerce, abrogate sovereign immunity, fashion remedies pursuant to Section 5 of the Fourteenth Amendment, and "commandeer" state officials. The New Federalism has continued in the Roberts Court Era, most recently in a case weighing congressionally enacted copyright policy against the sovereignty of individual states to disregard copyright. In Allen v. Cooper, a unanimous Supreme Court held that Congress's express power under Article I is not a sufficient warrant to overcome a State's sovereign immunity.

In this article, we argue that Allen is wrongly decided. In particular, the Allen Court made three key errors. We arrive at this debate primarily as intellectual property law scholars surprised by the dismissive approach that the Supreme Court took in Allen. The outcome leaves copyright holders without a cause of action for remedy even in cases of clear and deliberate infringement by States.

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