Chapman Law Review Article Spotlights Recent Supreme Court Missteps on Sovereign Immunity and Cultural Property, Calls for Congress to Act

I am proud to announce the publication in the Chapman Law Review of my article: “Turnabout is Foul Play: Sovereign Immunity and Cultural Property Claims”.

As the article explains, the Roberts Court has contorted beyond recognition the language of the Foreign Sovereign Immunities Act's expropriation exception in 28 U.S.C. § 1605(a)(3) with startling speed. In only three years, the Court went from acknowledging the longstanding principle that “the expropriation exception provides that the general principle of immunity” for so-called domestic takings “must sometimes give way,” to ruling that there are never such circumstances. In other words, the Court rejected that even the greatest international property crime in history could ever violate international law when applied to the Nazis’ first victims in Germany. This about-face is astonishing, and repudiates the express instructions of Congress, not to mention the proper interpretive approach to the FSIA that Justice Scalia articulated as recently as 2014. The fact that the Court has now repeatedly granted certiorari in cases about the Holocaust to reject the jurisdiction that Congress gave it in 1976—all to aid the very perpetrators of the Holocaust—speaks for itself.

Injecting policy preferences into the FSIA is the very opposite of what the law was enacted to do. As I told the Court in oral argument in 2020, to do so is the very opposite of the Chief Justice’s famous analogy of merely calling balls and strikes; it awards sovereigns first base without even having to face a single pitch even though Congress set the strike zone. The recent jurisprudence embodies “the sensitivities of nineteenth-century monarchs or the prerogatives of the twentieth-century state” that the State Department enthusiastically asked Congress to reject in enacting the FSIA. It is not the place of the judiciary to insert that policy now, whether it is the Executive or anyone else who requests it.

It is past time for Congress to course correct. I am therefore pleased at the timing of the publication, just last week the Senate introduced a bill that includes precisely many of the components for which I advocate in this article.