Keitner: Between Law and Diplomacy: The Conundrum of Common Law Immunity

Chimène Keitner (Univ. of California - Hastings College of the Law) has posted Between Law and Diplomacy: The Conundrum of Common Law Immunity (Georgia Law Review, forthcoming). Here's the abstract:

Drawing the line between disputes that can be adjudicated in domestic (U.S.) courts, and those that cannot, has perplexed judges and jurists since the Founding Era. Although Congress provided a statutory framework for the jurisdictional immunities of foreign states in 1976, important ambiguities remain. Notably, in 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) does not govern suits against foreign officials unless the foreign state is the “real party in interest.” This decision clarified, but did not fully resolve, conceptual and doctrinal questions surrounding the immunities of foreign officials whose conduct is challenged in U.S. courts, and who do not fall within existing statutes. To date, the contours of common-law immunity have only been addressed at the district and circuit court levels. The conundrum thus persists: how to define which claims are barred by immunity, who decides, and which claims are barred?

This Article offers an original historical account of strategies used by litigants, judges, legislators, and executive branch officials to navigate tensions between rules-based approaches to jurisdictional immunity administered by the judiciary and case-by-case approaches administered by the political branches. Part I excavates the practices and understandings of those involved in these cases, as the Executive Branch disclaimed the authority to instruct courts to dismiss claims on immunity grounds. Although past is not necessarily prologue, this early U.S. practice offers important insights into the interplay between legal and political considerations in immunity determinations that persist in the present day. Part II continues the historical narrative by exploring two pivotal twentieth-century cases involving foreign ships, in which the Executive Branch appears to have advanced — and courts ultimately accepted — a more robust political role in immunity determinations. Although cases against foreign officials appear to have been relatively few and far between during the twentieth century, the advent of modern human rights litigation inaugurated a new wave of cases against foreign officials for acts including torture and genocide. Today, privately initiated civil suits continue to be brought against current and former foreign officials in the United States for conduct ranging from torture, war crimes, and kidnapping, to domestic worker abuse. Part II elucidates some of the conceptual and procedural challenges to adjudicating these claims, which continue to defy straightforward resolution.