Sam is correct: Here is the very fine intervention brief written by his former colleagues Jessica Silver and Sarah Harrington: http://www.ca7.uscourts.gov/briefs.htm.
(The oral argument also can be downloaded from the Seventh Circuit's terrific website: http://www.ca7.uscourts.gov/farg/arg.fwx?caseno=02-1247&submit=showdkt&yr=02 &num=1247) Marty Lederman (disclosure: I provided comments on the brief while at DOJ) ----- Original Message ----- From: "Samuel Bagenstos" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Monday, June 30, 2003 9:08 PM Subject: Re: State sovereign immunity bars damages for violation of Title VII duty of religious accommodation > I assume the US intervened, as it typically does in these cases, just to > defend the constitutionality of the statute, and that it did not assert any > claim of its own against the state. Anyway, even if the US could get > damages from the state based on a claim that the US brought, that wouldn't > give the private plaintiff the power to pursue his/her own damages claim. > > At 05:58 PM 6/30/2003 -0700, Volokh, Eugene wrote: > > State sovereign immunity bars damages for violation of Title VII > >duty of religious accommodation. Endres v. Indiana State Police, 2003 WL > >21480361 (7th Cir. June 27) (Easterbrook, J., joined by Posner & Bauer, > >JJ.). The Court distinguishes Hibbs on the grounds that there's no evidence > >that the religious accommodation provision was an attempt to enforce the > >constitutional mandate of nondiscrimination. > > > > Here's a question that might reveal my lack of knowledge about state > >sovereign immunity: The U.S. intervened as plaintiff; why wouldn't this > >eliminate the sovereign immunity problem, given that the U.S. is now a > >party? The opinion seems to have no discussion of the matter. > > > > (Note: I'm posting this to CONLAWPROF rather than RELIGIONLAW > >because it seems to be more closely tied to state sovereign immunity, which > >has often been discussed on this list, rather than to substantive Free > >Exercise / Establishment Clause / Title VII religious accommodation law. I > >therefore thought that CONLAWPROF subscribers would be more interested in it > >than RELIGIONLAW subscribers.) > > > > Eugene >
