How To Sign Mississippi Banking Contract

How to industry sign banking mississippi contract

the topic that I'm going to begin with is the topic of sovereign immunity so return with me to Europe back in the good old days of totalitarian monarchies justice emanates from the crown and you can't sue the king that would be nonsensical justice emanating from the king the king being the fountain of justice can't be susceptible to his own adverse decisions this doctrine which developed over centuries in Europe is called sovereign immunity the sovereign is immune from judicial process from judicial liability it's a doctrine that one would think would have been offensive to the founders of the Republic and I'm sure it was too many of them yet it's a doctrine that on forming a new country here they chose to adopt so sovereign immunity crosses the Atlantic sovereignty is vested in a different authorities in the United States it's the people who are sovereign but the people can't be sued the United States is immune from suit and and that's just how it is unless it is willing to waive its immunity and allow itself to be sued now that's the the federal sovereign immunity rule it's not in the Constitution it's arguably grounded in the structure of the Constitution but maybe it's more properly located in federal common law there are two other sovereigns operating on the lands that the United States occupies the tribes the native tribes are sovereign and they also enjoy sovereign immunity as a consequence of horribly international law but maybe more expressly federal common law and then the States and it's the states that I want to focus on because the issue of state sovereign immunity is something that the founders actually talked about in the Constitution of the susceptibility of suits to federal judicial process is is arguably covered in article three and so so we have constitutional law on that topic we've got a fair amount of discussion and we've got some interesting history I want to share that history with you and then I want to let you know where we are where we are today so return with me now to 1777 we're at war with the British Georgia has an army but they don't have a whole lot in the way of supplies in the state of Georgia the newly independent state of Georgia contracts with a South Carolina merchant named Robert Farquhar to provide variety of goods that Georgia needs to prosecute the war effort the deal is a paper deal the the goods arrive and Georgia says yeah yeah well we'll pay you don't worry we're good for it and 1778 rolls around and nine and 1780 91-92 independence is one our into the eighteen 1780s new constitution new government robert Farquhar is georgia remember me yeah you owe me money for that stuff from the war oh yeah yeah well we'll get around to that and and and eventually Farquhar dies decades passed nothing comes from georgia and his executor a guy named alexander Chisholm decides that he's going to file suit against Georgia or do something to attempt to recover this debt so that it can be paid into his estate and distributed to his friend Robert Farr quartz airs now can he sue well nobody had ever really asked this question before this isn't the only unpaid Revolutionary War creditor mine but it's the first to ask the question well is is there some way I can use the new federal courts established by Congress pursuant to constitutional directive to get this money out of Georgian so we took a look at article 3 of the Constitution which establishes the federal judiciary and it says that the federal judicial power shall extend to here hey controversies it says between a state and foreign States citizens or subjects so okay so that sounds like the state of Georgia and and me right I'm Alexander Chisolm citizen of a different state South Carolina is a South Carolinian like Farquhar so we filed suit the Supreme Court gets this case and Georgia says what how you can't you can't sue us we have sovereign immunity and Chisolm says yeah but it says and so it wasn't this copy but it might have been right a little copy of the Constitution and so the courts as well I I don't know let's let's read the language and four of the five justices decide that Chisholm's right that in fact the federal judicial power does extend to suits brought by citizens of other states against Saints so they entertain the action and and Georgia's is very unhappy now it's not just Georgia that's unhappy about this other states that owe money are unhappy about the prospect that they're now going to be sued by all of these Revolutionary War creditors and so they rally and it's almost the first great interstate rally since the revolution itself and it's a rally in favor of the 11th amendment this is the first amendment since that first group of ten was pushed through by the first Congress in 1791 and the Eleventh Amendment says here's the deal I'm gonna paraphrase it then I'll read it to you here's the deal that business about the judicial power extending to suits between states and citizens of other states that wasn't meant to include suits where the states were the defendants it was only supposed to include suits where the states were the plaintiffs so Georgia can sue this guy Chisolm but Chisolm can't sue Georgia and here's how it's it's written the judicial power of the United States and its adopted right the Judas language reads the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state and they threw that in because there were a lot of European bondholders too right so individuals now from other states individuals from foreign countries can't sue States and everybody relaxes where everybody being the state's relax because now they're no longer going to be liable in federal court to to suit for payment of these debts on which many of them have defaulted that's Chisolm versus Georgia and its result 1793 is the decision eleventh amendments passed almost immediately afterwards and then time passes now the Civil War comes the Civil War ghosts were into the the Gilded Age and a fella named Hans in Louisiana has bought bonds from his own state from the state of Louisiana and Louisiana economic difficulty rewrites it come to its constitution in the 1870s 1880s and and apparently decides that it's not going to pay out on these bonds that Hans has purchased so Hahn says well I'm gonna sue them in federal court and presumably someone suggested well I don't know if you can do that because the Eleventh Amendment on says yeah but the Eleventh Amendment says you can't sue a state if you're a citizen of a different state or a foreign country doesn't say you can't see your own state in federal court so we filed suit that case Hans versus Louisiana gets decided by the Supreme Court in 1890 and the Supreme Court says wow you know technically Hans is kind of right on the money that is what it says but but in our view this is the majority opinion the reason that it that the the Eleventh Amendment didn't expressly prohibit suits by citizens of states against their own state is that everybody assumed that that would be the rule so even though it doesn't say it we're going to read that restriction into the eleventh amendments the 11th amendment now says judicial power shall not be construed to extend to suits prosecuted against when the states by citizens of other states citizens of foreign States or citizens of your own state that slipped in by the Hans versus Louisiana decision alright so time goes on and there is a first world war and in the course of the first world war a lot of federal money goes to support you warring European states including Great Britain and when the war is over it's time to pay this money back and a lot of these British bondholders are or British of the British government included but individuals in Britain too who were going to be indirectly through taxation liable to contribute to the repayment of this American War debt say you know what we are the Americans money for this for what they for the war but they owe us money too and and and and and what they had these things started appearing out of addicts were these old pre Civil War state bonds just like we're talking about but it's these are ones that had been sitting in European attics for for four generations and and they they had been issued by lots of states including the southern states in the years before the Civil War and then the states had repudiated them now Mississippi was especially notorious for this and this is a case that's going to give rise to our final Supreme Court decision in this line Mississippi in the 1830s as a lot of states had gotten really enthusiastic about economic development about about banking and they had chartered two banks the planter Mississippi planters bank and Mississippi Union Bank and then they issued state bonds to raise money to capitalize these these these banks they sold seven million dollars worth of bonds which was a lot of money and most of them were bought by Europeans many buy by British speculators you know hoping that the Mississippi banking industry would really take off well it didn't 1837 there's a financial crisis and practically all these things went bankrupt including these two Mississippi banks and then the Civil War came these bonds weren't payable until some 1861-1865 issued in 1830 lot happened turns out between 1830 and 1865 in Mississippi and so when the war was finished the state of Mississippi expressly repudiated these things we're never going to pay on these bonds and and European bondholders Feldstein heed and frustrated the 11th amendment prohibited them as individuals or rather from bringing suit individuals in the state couldn't sue because of Hans versus Louisiana individuals in other states who held these bonds couldn't sue so so what's a bond holder to do well this repayment obligation for the first world war debt combined with the Great Depression inspired some real creative lawyering and what a group of bondholders finally decided was okay well here are the restrictions with the citizens of States can sue citizens of foreign States can sue citizens of foreign countries can sue but there's nothing in there prohibiting foreign countries from suing so they collected a bunch of these bonds worth in the tens of thousands of dollars old Mississippi planners and Union Bank bonds and they carried them to the American Legation in Paris 1934 it's at end of September 1934 and they handed them over to the government of Monaco of the Principality of Monaco and they said we give these to you outright no conditions do what you will with them they're all yours so the Principality of Monaco took these things and immediately filed suit against the state of Mississippi in a federal court and the thinking was this would get around the problems the Eleventh Amendment limitations in the Haun's versus Louisiana limitation now it's a foreign country suing a state on these bonds and surely that will be effective mine this would have provided a platform for other countries to do everybody could have handed their bonds to Monaco and said now do ours right and eventually Mississippi might have been forced to repay on all of these things the Supreme Court got this case in in 1934 Monaco versus Mississippi and decided you know this doesn't seem right either so Hans versus Louisiana we inserted citizens of foreign countries Monaco versus Mississippi we're gonna go ahead and insert and foreign countries can't sue States in federal courts either so we've had a judicially greatly expanded Eleventh Amendment scope of scope of immunity now effectively it reads that suits federal judicial power doesn't extend to suits brought by citizens of your own state other states foreign States or by foreign countries any suit and law and equity now that doesn't leave much right that doesn't leave much how in the world do you sue a suit if you think it's done wrong and not just in not paying bonds how do you sue a state or how do you get a state to abide by the Federal Constitution if you think your constitutional rights have been violated because this is this is the federal judicial power federal courts ordinarily have jurisdiction to police the Constitution but we can't bring suits because of the Eleventh Amendment well there are three ways there are three things that can happen that get us around this expanded Eleventh Amendment problem the first is that the United States can sue Eleventh Amendment doesn't bar suits by the United States against against States if they've violated constitutional requirements the second is that states can waive their immunity and that actually happens more than you more than you might think the federal government does too the two big statutes the federal level and their state mirrors ones the Tucker Act which is a statute that waives federal sovereign immunity for government contract lawsuits so you agree you contract to sell pencils the federal government they don't pay you you can sue them right under the Tucker Act and then the Federal Tort Claims Act that's if you get run over by a mail carrier you can sue if there's a tort that's been committed in most states probably all states have things like that but that doesn't necessarily help you on constitutional claims so the last answer and this is probably the most important for certainly for constitutional law purposes is a 1908 Supreme Court decision created exception called ex parte young Edward Young was the Attorney General of state of Minnesota charged with enforcing allegedly unconstitutional railroad state railroad regulations and and they couldn't the railroads couldn't sue the state because of the Eleventh Amendment but they thought maybe we can sue young and so they did is they filed suit against young seeking an injunction a court order federal court order to him to stop enforcing these unconstitutional state laws and the Supreme Court took that and thought you know we really haven't left folks many ways any ways of challenging unconstitutional action by states so so let's let's go with this and the ex parte young rule since 1908 has been the principal mechanism for filing constitutional claims against state governments that you believe have violated your constitutional rights you can't sue the state you can't sue for money but you can sue a state official for an injunction to get him or her to stop enforcing what you to believe believe to be an unconstitutional an unconstitutional state act thank you freedom 101 is made possible by generous support from the University of Oklahoma Alumni Association freedom 101 is a program of the Institute for the American constitutional heritage at the University of Oklahoma for more videos and podcasts visit freedom.ou.edu