From: Kevin Smith <[log in to unmask]>
Date: Tue, 2 Sep 2014 23:51:23 +0000

Liane,

In my opinion you should walk away from this vendor.  I have a hard
time imagining what product they could be selling that would be worth
the trouble this could cause.

For one thing, even if we assume that such a waiver would be enforced,
you or your library might meet considerable anger from others up the
food chain if you agree to relinquish a Constitutional protection
enjoyed by the states since 1793.  It would be perfectly reasonable
for others to question your authority to do this, even if a court held
your action to be binding.

Also, this could create an unfortunate precedent, where more and more
private companies that do business with state entities would start
making this demand.  Again, this could undermine a long-standing
aspect of the federalism that defines our system of government.

Finally, it is not certain that such a waiver would be enforceable.
The federal courts have a confusing string of precedents regarding
waivers of sovereign immunity.  In a 2002 law review article about
such waivers, Professor Christine Bohannan specifically discusses
private contractual renunciations of sovereign immunity.  She
ultimately concludes that courts would enforce such waivers, but it is
clearly a debatable question. Agreeing to such a clause is an
invitation to protracted litigation.

Bohannan's article is at:

http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-77-2-Bohannan.pdf.

For all these reasons, I think a definitive "no" is the appropriate
answer to this vendor. At the very least, I don't think you should
agree to such a clause without an explicit OK from whoever in the
state's AG's office advises your system.

Kevin

Kevin L. Smith, J.D.
Director of Scholarly Communication
Duke University Libraries
Durham, NC 27708


> On Sep 2, 2014, at 19:01, "LIBLICENSE" <[log in to unmask]> wrote:
>
> From: "Taylor, Liane R" <[log in to unmask]>
> Date: Tue, 2 Sep 2014 20:17:31 +0000
>
> Greetings all – I’m working with a vendor who has requested we waive
> our sovereign immunity. I have never been asked to do this before.
> They have not yet been willing to strike this clause. I am wondering
> if anyone else has encountered this and if you have any negotiation
> tips/effective arguments, before I have to send this off to our legal
> counsel to try to manage? I am sending this to other listservs, sorry
> for the duplication.
>
> –Liane
>
> Liane Taylor
> Continuing Resources Librarian/
> Interim Head Acquisitions Librarian
> Texas State University
> [log in to unmask] • 512.245.3009