[Peter “Bo” Rutledge is Associate Professor of Law at the University of Georgia Law School and the author, with Gary Born, of International Civil Litigation in United States Courts]
I’ve been thinking a lot about Samantar since its release as I expect it’ll occupy an important place in the next edition of Gary’s and my International Civil Litigation (we’re working on it right now – should be in proof stage by Spring 2011, in book form for Fall 2011 classes). In addition to the several comment, I offer some thoughts on the profoundly unsatisfying decision in the case. To be clear, like Bill and Chimene, I don’t think that the Court necessarily reached the wrong result. Rather, like Roger and Beth, I believe the way it went about resolving the case leaves far too many unanswered questions that, I can attest from recent work on a difficult sovereign immunity case, desperately need some clarification:
1. What’s the scope of the common law immunity for foreign officials? The ultimate section of Samantar can be read to support the notion that this common law immunity survives the FSIA. But prior to Samantar a great deal of confusion persisted among the lower courts over how it operated with respect to such matters as scope of employment, the treatment of highl-level ministers close to the head of state, former employees, and conduct committed in violation of international law. Samantar supplies no guidance on these matters.
2. Whatever the scope, what’s the source of law? Federal common law one might naturally say. But not so fast. How do we square that with the scope of employment prong under the non-commercial tort exception? Some lower court case law suggests that state law, not federal law, informs the question. Other case law looks to the law of the sovereign itself. Consequently, we end up in a situation where different sources of law inform the same inquiry, an unfortunate result.
3. What’s the authority for the federal common law? Most of you are familiar with the very good Seventh Circuit cases arising out of the Enahoro litigation that discuss this question. After Erie and maybe Sosa too, one might reasonably wonder what’s the residual scope of a federal court’s common law making authority in the field. Clearly, there’s some. But just as Sosaleft a lot of people scratching their heads about how extensive it was, this case does too. Of course, one might distinguish between a federal common law to create a cause of action vs federal common law making power to generate an affirmative defense (like immunity). But the defensibility of that distinction depends critically on the value underpinning one’s view of federal common law power. If the underlying value is comity, then perhaps the distinction makes sense. But if the underlying value is separation of powers (or simply a more modest view of judicial lawmaking power), then the two are not so easily distinguished.
4. What do we do about forum shopping? However textually twisted it might have been, the FSIA-based approach to individual immunity at least had the functional value of keeping these cases in federal court. As a result of Verlinden, one could avoid the risk of inconsistent results in federal and state court through the FSIA’s removal provision. But after this case, the risk of forum shopping become rampant – to keep a case in state court, just file align the parties in a way to avoid 1332 removal and structure your causes of action to avoid federal claims. Wouldn’t that be a pretty airtight way of keeping a case out of federal court despite the potentially profound impact of the case on foreign relations (though I agree with Duncan this actually clears a barrier for folks who wish to go the ATS route)? The effect, I suggest, may be greater pressure to find substantive federal common law with preemptive effect in state court (much like we saw in a couple of post-Sabbatino act of state cases)
Unfortunately, the Court simply blew past much of this. Instead of confronting them either in the opinion, or at least some well written separate opinions, they regurgitated the tired old debates over legislative history which don’t meaningfully illuminate things.
Grateful in advance for any reactions (on- or off-line) to these comments as well as, more generally, suggestions in the sovereign immunity chapter in the book. Cheers!