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,” which you can link to here. The abstract of the article is below.
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.
My profound thanks to Taline Ratanjee, Greg Mikhanjian, Anna Ross, Amber Odell, and Sara Morandi for their help in bringing this publication to fruition, and more importantly for their incredible work in organizing the symposium in January, 2025 at which I presented it. These student editors and scholars showed skill and poise seldom seen in experienced attorneys. The profession is lucky to have them joining the ranks.
Abstract:
In 1976, Congress enacted the Foreign Sovereign Immunities Act, 28 U.S.C. § 1601, et seq., to establish the circumstances under which foreign states and their instrumentalities are subject to suit in United States courts. Under the FSIA, a foreign state is immune from suit unless an enumerated exception applies. Of these exceptions, the “expropriation exception” of section 1605(a)(3) was invoked for various claims to looted or dispossessed cultural property. Most frequent of all were claims arising out of Nazi-era transfers and thefts, a dispossession of art in particular that Congress (unanimously) in 2016 labeled the “greatest displacement of art in human history.” Claims were evaluated without regard to the nationality of the Nazis’ victims, consistent with a 2016 amendment to the FSIA that confirmed its applicability to “Nazi-era claims” defined as those dating from January 30, 1933 to May 8, 1945, as well as with the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.
In 2021 the Supreme Court abruptly changed course. The expropriation exception, the Court held, incorporates the so-called “domestic takings rule,” under which international law is indifferent to crimes by a government against its own nationals. By inserting this additional element into the expropriation exception at odds with the Genocide Convention and § 1605(h), the Court sent a clear message of hostility to cultural property claims that sovereign litigants and the lower courts have followed. What has ensued is a demeaning race to the bottom in which heirs of the Nazis’ victims are forced to explain why international law should protect those whom Germany cast out of the protection of its laws.
Ironically, the Court’s increasing reliance on an unrelated law that addressed the Act of State Doctrine provides the solution. After the Supreme Court declared Cuba’s expropriations non-justiciable under the Act of State Doctrine, Congress asserted its co-equal power to restore access to U.S. Courts with the Second Hickenlooper Amendment. Without irony, the Supreme Court has increasingly cited the Second Hickenlooper Amendment to interpret the FSIA more narrowly. Congress must take the cue, and act to remind the Court that Congress meant what it said, not the policy that the Court has inserted into the law.