Since we are in a court of law, let us speak of law, natural law and lawful things rather than rules, codes and legal or allowable things

1.1. Texas Jurisprudence:

“A constitution is adopted with reference to existing laws that are not changed unless they are inconsistent with constitutional provisions.”[1]

2. CASE LAW OR COMMON LAW:

2.1. STONE V. ARIZONA 1963:

2.1.1. Sovereign Immunity Discarded by Court:

“We are of the opinion that when the reason for a certain rule no longer exists, the rule itself should be abandoned. After a thorough re-examination of the rule of governmental immunity from tort liability, we now hold that it must be discarded as a rule of law in Arizona and all prior decisions to the contrary are hereby overruled.”[2]

2.1.2. Sovereign Immunity on Rotten Foundation:

“In 75 A.L.R. 1196, a classic observation as to the sociological aspects of sovereign immunity appears which has since been quoted with approval in several jurisdictions: “* * * The whole doctrine of governmental immunity from liability for tort rests upon a rotten foundation. It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, ‘the King can do no wrong,’ should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs.”[3]

2.1.3. Injured Individual Suffers:

“It requires but a slight appreciation of the facts to realize that if the individual citizen is left to bear almost all the risk of a defective, negligent, perverse or erroneous administration of the state’s functions, an unjust burden will become graver and more frequent as the government’s activities are expanded and become more diversified.”[4]

2.1.4. Mystery of Immunity After American Revolution:

“Sovereign or governmental immunity began with the personal prerogatives of the King of England upon the theory that “the King can do no wrong,” and even though at a very early date in American history we overthrew the reign of the English King the doctrine somehow became entrenched in our judicial code. Professor Borchard has termed this phenomenon as “one of the mysteries of legal evolution.”[5]

2.1.5. Immunity exists by Inertia rather than Law & Reason:

“Its survival (sovereign or governmental immunity) for such a great period of time in this country, where the royal prerogative is unknown, has perhaps been even more remarkable, considering it has been universally criticized as an anachronism with out rational basis. Most writers and cases considering this fact have claimed that its only basis of survival has been on grounds of antiquity and inertia.”[6] (Parenthesis added)

2.1.6. Stare Decisis void of Law & Reason:

“The first case in Arizona which held that the sovereign was immune from tort liability occasioned by the negligence of its agents was State v. Sharp, supra. Without examining any real basis or reason for sustaining this court stated: “As to this question it is well settled by the great weight of authority that the state, in consequence of its sovereignty, is immune from prosecution in the courts and from liability to respond in damages for negligence, except in those cases where it has expressly waived immunity or assumed liability by constitutional or legislative enactment.”[7] This case set a precedent and other Arizona cases have since followed the rule without arriving at any basis other than that of stare decisis.[8]

2.1.7. Sovereign & Governmental Immunity Mythology in Colorado:

“In a 1957 case, The Colorado court stated: In Colorado ‘sovereign immunity’ may be a proper subject for discussion by students of mythology but finds no haven or refuge in this court.”[9] However, this feeling was short-lived for three years later the same court invoked the immunity theory as to the governmental functions of a county.”[10]

2.1.8. Revolutionary War Abrogated Sovereign Immunity:

“The Florida court emulated Colorado, abolishing immunity as to governmental functions of municipalities on the ground that the Revolutionary War abrogated the doctrine that “the King can do no wrong,[11]” and thereafter retreating to say that this did not apply to the state, its counties, or its county school boards.[12]”[13]

2.1.9. All Sovereign Immunity should be Abrogated:

“The city of Milwaukee case stated that even though the principal case only related specifically to a city, the abrogation of the doctrine should be considered as total: “to all public bodies within the state: the state, counties, cities, villages, towns, school districts, sewer districts, drainage districts, and any other political subdivisions of the state-whether they be incorporated or not.[14]”[15]

2.1.10. All Governmental Immunity Abolished in Arizona:

“After considering all the facets of the problem, we feel that the reasoning used by the California court in Muskopf v. Corning Hospital District, supra, has more validity and therefore we adopt it. The substantive defense of governmental immunity is now abolished not only for the instant case, but for all other pending cases, those not yet filed which are not barred by the statute of limitations and all future causes of action. All previous decisions to the contrary are specifically overruled.”[16]

2.1.11. Immunity is Court Enunciated and Court Abrogated:

“It has been urged by the adherents of the sovereign immunity rule that the principle has become so firmly fixed that any change must come from the legislature. In previous decisions (the latest being Lee v. Kunklee, supra)[17] this court concurred in this reasoning. Upon reconsideration we realize that the doctrine of sovereign immunity was originally judicially created. We are now convinced that a court-made rule, when unjust or outmoded, does not necessarily become with age invulnerable to judicial attack. This doctrine having been engrafted upon Arizona law by judicial enunciation may properly be changed or abrogated by the same process.”[18]

2.1.12. State is Liable with Employees:

“Under the theory of respondeat superior, the State itself as employer would also be liable.”[19]

2.2. MUSKOPF V. CORNING Cal. Sup. Crt. 1961:

2.2.1. Governmental Immunity Mistaken and Unjust:

“After a re-evaluation of the rule of governmental immunity from tort liability we have concluded that it must be discarded as mistaken and unjust.”[20]

2.2.2. Initial Adoption of Sovereign Immunity:

“The rule of county or local district immunity did not originate with the concept of sovereign immunity. The first case to hold that local government units were not liable for tort was Russell v. men of Devon, 100 Eng.Rep. 359. The case involved an action in tort against an unincorporated county. The action was disallowed on two grounds: since the group was unincorporated there was no fund out of which the judgment could be paid; and “it is better that an individual should sustain an injury than that the public should suffer an inconvenience.”[21]

“The rule of the Russell case was first brought into this country by Mower v. Inhabitants of Leicester, 9 Mass. 247, 249. There the county was incorporated, could sue and be sued, and there was a corporate fund out of which a judgment could be satisfied. Ignoring these differences, the Massachusetts court adopted the rule of the Russell case, which became the general American rule.”[22]

2.2.3. No Reason for Immunity can withstand Analysis:

“None of the reasons for its continuance can withstand analysis. No one defends total governmental immunity. In fact, it does not exist. It has become riddled with exceptions, both legislative and judicial, and the exceptions operate so illogically as to cause serious inequality.”[23]

2.2.4. Stare Decisis & Legislative Domain Fail:

“It is strenuously urged, however, that it is for the Legislature and not the courts to remove the existing governmental immunities. Two basic arguments are made to deny the court’s power: first, that by enacting various statutes affecting immunity the Legislature has determined that no further change is to be made by the court; and second, that by the force of stare decisis the rule has become so firmly entrenched that only the Legislature can change it. Neither argument is persuasive.”[24]

2.2.5. Immunity is Court Made:

“The doctrine of governmental immunity was originally court made.”[25]

2.2.6. Government not liable for indirect harm:

“Abrogation of governmental immunity does not mean that the state is liable for all harms that result from its activities. Both the state and individuals are free to engage in many activities that result in harm to others so long as such activities are not tortuous. Thus the harm resulting from free competition among individuals is not actionable, nor is the harm resulting from the diversion of business by the state’s relocation of a highway. People v. Symons, 54 Cal.2d 855, 9 Cal.Rptr. 363, 357 P.2d 451; Holloway v. Purcell, 35 Cal.2d 220, 230, 217 P.2d 665. It does not follow, however, that torts may not be committed in carrying on such activities. A competitor may be liable for the harm resulting from his violation of traffic laws in getting his product to market, just as the state may be liable for the harm caused by its agents’ violations of such laws. Although it “is not a tort for government to govern.” (Jackson, J., dissenting in Dalchite v. United States, 346 U.S. 15, 57, 73 S.Ct. 956, 979, 97 L.Ed. 1427), and basic policy decisions of government within constitutional limitations are therefore necessarily nontortious, it does not follow that the state is immune from liability for the torts of its agents. These considerations are relevant to the question whether in any given case the state through its agents has committed a tort (see 3 Davis, Administrative Law (1958), § 25.11, p. 482, § 25.13, p. 489), but once it is determined that it has it must meet its obligations therefor.”[26]

2.2.7. No Immunity for Tortuous Acts of Government Agents, final step in just trend:

“Thus in holding that the doctrine of governmental immunity for torts for which its agents are liable has no place in our law we make no startling break with the past but merely take the final step that carries to its conclusion an established legislative and judicial trend.”[27]

2.3. MOLITOR V. KANELAND Comm. Unit. Dist. Ill. 1959:

They were unwilling to distinguish between how a school district was formed as to its immunity and called all quasi-municipal corporations[28] “highly technical distinctions.” In Illinois the court created sovereign immunity just as they did in Texas and the court can abolish it as well.

2.3.1. Almost Unanimous Condemnation of Immunity:

“It appears that while adhering to the old immunity rule, this court has not reconsidered and re-evaluated the doctrine of immunity of school districts for over fifty years. During these years, however, this subject has received exhaustive consideration by legal writers and scholars in articles and texts, almost unanimously condemning the immunity doctrine. See, Borchard, Governmental Liability in Tort.”[29]

“Historically we find that the doctrine of the sovereign immunity of the state, the theory that “the King can do no wrong,” was first extended to a subdivision of the state in 1788 in Russell v. Men of Devon, 2 term rep. 671, 100 Eng.Rep. 359. * * * the decision that the county was immune was based chiefly on the fact that there were no corporate funds in Devonshire out of which satisfaction could be obtained, plus a fear of multiplicity of suits and resulting inconvenience to the public.”[30]

2.3.2. Even England Overruled Immunity:

“It should be noted that the Russell case was overruled by the English courts, and that in 1890 it was definitely established that in England a school board or school district is subject to suit in tort for personal injuries on the same basis as a private individual or corporation. (Crisp v. Thomas, 63 L.T.N.S. 756 (1890).) Non immunity has continued to be the law of England to the present day. See Annotation, 160 A.L.R. 7, 84.”[31]

2.3.3. Additional Justification for Immunity Fails:

“Later decisions following the Kinnare doctrine have sought to advance additional explanations such as the protection of public funds and public property, and to prevent the diversion of tax moneys to the payment of damage claims.”[32]

“Rather we interpret that section as expressing dissatisfaction with the court created doctrine of governmental immunity and an attempt to cut down that immunity where insurance is involved.”[33]

2.3.4. Immunity Contrary to law of torts:

“It is a basic concept underlying the whole law of torts today that liability follows negligence, and that individuals and corporations are responsible for the negligence of their employees acting in the course of their employment. The doctrine of governmental immunity runs directly counter to that basic concept. What reasons, then, are so impelling as to allow a school district, as a quasi-municipal corporation, to commit wrongdoing without any responsibility to its victims, while any individual or private corporation would be called to task in court for such tortuous conduct?”[34]

2.3.5. The King lives where Immunity lives:

“The original basis of the immunity rule has been called a “survival of the medieval idea that the sovereign can do no wrong. (38 Am. Jur., Mun.Corp., sec 573, p. 266.)”[35]

2.3.6. Courts haven’t heard about American Revolution:

“Likewise, we agree with the Supreme Court of Florida that in preserving the sovereign immunity theory, courts have overlooked the fact that the Revolutionary War was fought to abolish that “devine right of kings” on which the theory is based.”[36]

2.3.7. Circular Argument or false tautology:

“In the first place, analysis of the theory shows that it is based on the idea that payment of damage claims is a diversion of educational funds to an improper purpose. As many writers have pointed out, the fallacy in this argument is that it assumes the very point which is sought to be proved, i.e., that payment of damage claims is not a proper purpose. Logically, the ‘No fund’ or ‘trust fund’ theory is without merit because it is of value only after a determination of what is a proper school expenditure. To predicate immunity upon the theory of a trust fund is merely to argue in a circle, since it assumes an answer to the very question at issue, to wit, what is an educational purpose?”[37]

2.3.8. Government to protect property or tax money?

“We are in accord with Dean Green when he disposed of this problem as follows: “There is considerable talk in the opinions about the tremendous financial burdens tort liability would cast upon the taxpayer. In some opinions it is stated that this factor is sufficient to warrant the courts in protecting the taxpayer through the immunity which they have thrown around municipal corporations. While this factor may have had compulsion on some of the earlier courts, I seriously doubt that it has any great weight with the courts in recent years. In the first place, taxation is not the subject matter of judicial concern where justice to the individual citizen is involved. It is the business of other departments of government to provide the funds required to pay the damages assessed against them by the courts. Moreover, the same policy that, would protect governmental corporations from the payment of damages for the injuries they bring upon others would be equally pertinent to a like immunity to protect private corporations, for conceivably many essential private concerns could also be put out of business by the damages they could incur under tort liability. But as a matter of fact, this argument has no practical basis. Private concerns have rarely been greatly embarrassed, and in no instance, even where immunity is not recognized, has a municipality been seriously handicapped by tort liability. This argument is like so many of the horribles paraded in the early tort cases when courts were fashioning the boundaries of tort law. It has been thrown in simply because there was nothing better at hand. The public’s willingness to stand up and pay the cost of its enterprises carried out through municipal corporations is no less than its insistence that individuals and groups pay the costs of their enterprises. Tort liability is in fact a very small item in the budget of any well organized enterprise.” Green, Freedom of Litigation, 38 Ill.L.Rev. 355, 378.”[38]

“As Dean Harno said: “A municipal corporation today is an active and virile creature capable of inflicting much harm. Its civil responsibility should be co-extensive. The municipal corporation looms up definitely and emphatically in our law, and what is more, it can and does commit wrongs. This being so, it must assume the responsibility of the position it occupies in society.” (Harno, Tort Immunity of Municipal Corporations, 4 Ill.L.Q. 28, 42.)”[39]

“We conclude that the rule of school district immunity is unjust, unsupported by any valid reason, and has no rightful place in modern society.

2.3.9. Court With Power and Duty to Abolish Immunity:

“Defendant strongly urges that if said immunity is to be abolished, it should be done by the legislature, not by this court. With this contention we must disagree. The doctrine of school district immunity was created by this court alone. Having found that doctrine to be unsound and unjust under present conditions, we consider that we have not only the power, but the duty, to abolish that immunity. “We closed our courtroom doors without legislative help, and we can likewise open them.” Pierce v. Yakima Valley Memorial Hospital Ass’n. 43 Wash.2d 162, 260 P.2d 765, 774.[40]

“First, if we were to merely announce the new rule without applying it here, such announcement would amount to mere dictum. Second, and more important, to refuse to apply the new rule here would deprive appellant of any benefit from his effort and expense in challenging the old rule which we now declare erroneous. Thus there would be no incentive to appeal the upholding of precedent since appellant could not in any event benefit from a reversal invalidating it.”[41]

2.4. DICKSON V. STRICKLAND (Tex. Sup. Crt. 1924):

“Ruling Case Law says: Where the Constitution declares the qualifications for office, it is not within the power of the Legislature to change or add to these unless the Constitution gives that power.” 9 R.C.L. 1124.”[42]

“In our judgment, when the Constitution undertakes to prescribe qualifications for office, its declaration is conclusive of the whole matter, whether in affirmative or in negative form.”[43]

“It is the declared law, by both the Court of Criminal Appeals and the Supreme Court of this State, that it is beyond the power of the Legislature to add an additional qualification for an elector to those prescribed by the Constitution.”[44]

“So, it was utterly beyond the power of the Legislature to authorize the courts to keep the name of a candidate for Governor off any election ballot, when possessed of every constitutional qualification, regardless of whether he possessed the additional qualifications specified in article 3082.”[45]

2.4.1. The People are Sovereign in Texas:

“When the competency of women to hold office in Texas is challenged, the fundamental inquiry is as to the extent of restrictions on the people in their sovereign capacity with respect to freedom of choice of their public servants.”[46]

2.4.2. First Words of Constitution declare People Sovereign:

“To approach the subject from any other viewpoint would not accord with the constitutional history of Texas. Among the first words of the state’s declaration of independence, adopted March 2, 1836, is the declaration that government derives all its legitimate powers from the people. In the Constitution of the Republic is a statement of rights never to be violated on any pretense whatever. There we find it recorded that “all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.” The declaration is carried into every Constitution, appearing as section 2 of article 1 of the Constitution of 1876.

2.4.3. Citizen of Texas Sovereign and Fundamental Law:

“With the ultimate political sovereignty of the people so forcefully declared throughout our history, the court would be unmindful of its high responsibility were it not careful in examining any claim of restriction on the liberty and authority of those who establish governments, and can change them in the mode prescribed by the fundamental law.”[47]

2.4.4. No Presumption of Immunity in the State to harm Individual:

“It would be in the power of such convention to take away or destroy individual rights, but such an intention would never be presumed; and to give effect to a design so unjust and unreasonable would require the support of the most direct, explicit affirmative declaration of such intent.”[48]

2.4.5. Statutes, Codes, Cases Inferior to Constitution:

“The Constitution is the supreme law of the state. It is elementary that a statute or principle of the common law in conflict with the Constitution is void. So, if there be any conflict between the common law, declaring Mrs. Ferguson ineligible, and the Constitution, declaring her eligible, it is our duty to give effect to the Constitution.”[49]

2.4.6. Immunity like Male Dominance never in force to adopt:

“The truth is that the old common law principles invoked against Mrs. Ferguson have never been in force in Texas, and certainly are not in force at the present time.

2.4.7. Art. 16 Sec. 48 Iniquity Filter for Texans:

England, as she advanced in Christian civilization, was fast to find means to rid herself of the iniquities which must have resulted, had some of the strict common-law rules governing marital rights and duties been rigidly applied.”[50]

2.4.8. Violation of Trust & Definition of State Employees:

“An office is essentially a trust or agency for the benefit of the public. The supreme qualification is unselfish fidelity to duty.”[51]

2.5. HOSNER V. DeYOUNG, 1 Tex. 764 (1847):

2.5.1. Foundation of Immunity without precedent, Constitution, or Statute:

“A mandamus is not a process that can be resorted to against the state without its consent.”

“A state can be sued in its own courts only in the manner indicated by its consent.”

“A state cannot be sued in its own courts without its consent.”[52]

2.5.2. Southwestern Law Journal confirms no Precedent:

2.5.3. See whole case copied at end of this Appendix:

3. LEGAL PERIODICALS:

3.1. SOUTHWESTERN LAW JOURNAL:

3.1.1. State Sovereignty claims to be above the Court:

“Governmental immunity is one of the more ancient of the common law rules. The doctrine deprives the judiciary of power to adjudicate disputes against the government, the theory being that the sovereign is above the courts and thus not susceptible of being sued in its own courts.

3.1.2. Philosophical basis of Immunity defeated in U.S.:

Sovereign immunity, as it developed in England, was a logical extension to the concept of the devine right of kings, but the transplantation to America is a philosophical paradox. Being common law doctrine, governmental immunity was first introduced in the United States in Mower v. Inhabitants of Leicester.[53] This was a quarter of a century after the American Constitution had set out a government of limited powers. Thus, the philosophical underpinnings of sovereign immunity did not apply to the United States when it was introduced to this country.

3.1.3. Immunity Adopted in Texas Courts without citation:

Nevertheless, the doctrine won rapid and widespread acceptance in the United States, primarily through court decision. The first reported Texas case on point adopted governmental immunity without citation of authority.[54] The court apparently believed that the immunity of the government was so commonly accepted that citation of authority was superfluous.”[55]

3.1.4. Trend in the U.S. is toward Abrogation:

“The trend throughout the United States definitely is toward abrogation of the doctrine of governmental immunity, either in whole or in part. Perhaps this is because the arguments in favor of preserving it have lost their vitality. The proposition that the doctrine protects the state from nuisance suits is unproven at best.

3.1.5. Contrary to all Tort Law & Texas Constitution:

“Those states which have abolished the doctrine have experienced no greater raid on the public treasury. Furthermore, the doctrine is in derogation of the basic principle underlying all tort law; for every wrong there should be a remedy. In fact, the Texas Constitution provides that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.[56] Thus, in future legislation, Texas should re-evaluate its position and should assume fully the constitutionally prescribed posture which its courts have so long emasculated.”[57]

3.1.6. Immunity can only be declared void:

“Scope of Constitutional Inquiry. First, the scope of the constitutional problems relating to legislative abrogation of governmental immunity in Texas must be defined. In some jurisdictions the immunity of the state is established by the constitution itself, usually in the form of a directive that the state shall not be made a defendant in any action in the courts of the state.[58] Such is not the case in Texas, however, for immunity is derived from the common law.[59] As a common law doctrine, governmental immunity can be changed by the legislature or by the courts; thus, the constitutional prohibitions, if any, are indirect.”[60]

The last part of the foregoing would be true if it were not for the fact that sovereign and governmental immunity are repugnant to the Texas Constitution and cannot be manipulated in any way by the Legislature other than to declare them void from inception as unlawful, while it is left to the judiciary to find them repugnant under their common law jurisdiction (Texas Constitution Art. 16 Sec. 48) when brought before them in a suit for damages and used by the state to avoid liability.

3.2. VILLANOVA LAW REVIEW:

3.2.1. Sovereign Immunity Consistent with Foreigners:

“Over the span of a century and a half many legal rules and concepts evolve and unfold in response to variant social conditions and as a means of restructuring social activity. Frequently a legal doctrine as presently understood and applied bears little relation, and may even be inapposite, to its germinal case.[61] The original contours of a legal concept may, therefore, often be of small practical import in its current application. This general thesis is not applicable, however, to the doctrine of sovereign immunity – that principle which provides that a recognized foreign sovereign is not susceptible, without its consent, to the judicial process of the courts in any other state. Although more than one hundred and fifty years old, the case vivifying this legal concept, The Schooner Exchange v. McFadden,[62] is still repeatedly referred to in judicial opinions.[63]”[64]

3.2.2. Essence of Sovereign Immunity is Foreignness:

“Under the absolute theory the sole inquiry is whether or not the entity being sued is a foreign sovereign. If so the court will dismiss the action.[65]”[66]

“The premise requires that all exemptions from the sovereign’s absolute power must come from within, from the consent of the sovereign state itself.[67]”[68]

“Thus, the Court concluded that if the port is open to ships of all nations, an armed public vessel may enter and obtain the protection of the local sovereign, and the immunity from jurisdiction, although no specific license to enter is granted.[69]

3.2.3. Foundation is Equal Status:

The foundation of these concessions is the common consent of the nation states and their coequal dignity. “One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.[70]”[71]

3.2.4. Sovereign Immunity is Consistent in Admiralty Suits:

“For more than a hundred years following The Schooner Exchange the vast majority of the cases involving a possible plea of sovereign immunity were suits in admiralty. Ships of foreign nations were libeled in American ports, and jurisdiction in rem and quasi in rem was thereby established. The opinions in these cases are weighted with references to The Schooner Exchange. Immunity was generally granted to those ships in the actual possession of a foreign government and employed for a public purpose. Mere governmental ownership of the vessel, without allegation of public use and possession, was, however, held to be insufficient.”[72]

Herein, is the real nature of Sovereign Immunity from jurisdiction. It was not for the agent of the sovereign citizen to harm the citizen with impunity but to avoid prosecution of the agent of the sovereign by a foreigner, which was to be resolved between jurisdictions. This was so that the agents of all nations would be respected in each others territory. The violation of the rights of citizens of other nations if not settled between the nations brought on wars. But the state of Texas should not be in a state of war with Texans. The state of Texas is not sovereign over Texans but merely their agent. And when an agent violates the contract creating the agency, the agent is subject to suit in the court of the sovereign citizen.

3.2.5. A Foreign Individual will be Treated Fairly:

“Throughout this rather abstract discussion of the absolute and restrictive theory of sovereign immunity, the pragmatic interests of the private party plaintiff has been given only passing consideration. Since the absolute theory of sovereign immunity subsumes the restrictive and grants to a foreign nation even greater measure of protection, there can be little diplomatic or political embarrassment to our government consequent to its application by our courts. Thus, any determination to recast the doctrine of sovereign immunity will probably be based on considerations of fairness and justice to the private plaintiff.[73] Those same pressures which impelled enactment of the Federal Tort Claims Act and the Tucker Act may force a more definitive articulation of a plaintiff’s rights. Two possible procedures might be utilized. Treaties may be entered into which more precisely detail the rights of citizens of one contracting party to sue the other nation state.[74] Alternatively, a congressional enactment such as the Hickenlooper Amendment[75] might be employed to delineate the precise scope of the sovereign immunity doctrine in American courts.”[76]

3.3. DUKE LAW REVIEW:

3.3.1. Unpredictable Inequitable Immunity lamented:

“The abolition of the governmental immunity doctrine has been urged since before the turn of the century. Until recently, however, courts have refused to give tort relief in the absence of legislation or facts on which the immunity doctrine could be circumvented. Since governmental enterprises continue to expand in scope at an ever increasing rate, their contact with and influence on the individual becomes more significant. Therefore, the unpredictable and often inequitable consequences resulting from the “governmental-proprietary” dichotomy, “discretionary-ministerial” distinction and other judicial attempts to designate areas of governmental tort liability and immunity have been increasingly lamented from the bench as well as the bar. Reinforced by growing acceptance of a “spread-the-loss” philosophy, commentators have urged that public entities should be held responsible for torts committed by their employees within the scope of their employment.

3.3.2. Legislatures once given Power will not Relinquish:

Despite appeals for reform from the courts and commentators, most state legislatures have failed to provide a satisfactory solution. Within the last seven years, however, several courts have abolished the governmental immunity doctrine by judicial fiat,[77] and it seems likely that other courts will soon follow that path.”[78]

3.4. YALE LAW JOURNAL:

3.4.1. English Law is Protection of Individual:

“The common law and the political theory underlying both British and American constitutional law have been regarded as a bulwark of protection to the individual in his relations with the government. The “rule of law” which Dicey and others extol is designed by judicial control to restrict within the bounds of legality the operation of the governmental machine in its contact with the citizen. Yet it requires but a slight appreciation of the facts to realize that in Anglo-American law the individual citizen is left to bear almost all the risks of a defective, negligent, perverse or erroneous administration of the State’s functions, an unjust burden which is becoming graver and more frequent as the Government’s activities become more diversified and as we le