Volume 15 / Number 3 / Fall 2011




Interpreting the Foreign Sovereign Immunities Act: Reading or Construing the Text?

Joseph W. Dellapenna

15 Lewis & Clark L. Rev. 555 (2011)

In 1976, Congress enacted the Foreign Sovereign Immunities Act in order to move decisions about the immunity of foreign states from the State Department into the courts. The statute was intended to create definite and certain rules to govern such decisions, in part to minimize litigation costs and potential embarrassment in the conduct of foreign relations. The Immunities Act is a very poorly drafted statute, however, characterized by confusion, ambiguities, and omissions. As a result, it continues to generate a great deal of litigation and controversy, the very opposite of what was hoped for the statute. Ultimately, the Supreme Court has stepped in to attempt to provide some coherence to the resulting case law, but the insistence of many on the Court on using a “textualist” approach to interpret the Immunities Act has resulted in greater confusion rather than clarification from the Court’s decisions. The process is epitomized by the case of Samantar v. Yousuf, the first time the Supreme Court considered whether the Immunities Act applies to natural persons as well as the foreign state proper, its governmental subdivisions, and government-owned (or operated) corporations, or the like. Simply reading the text of the Immunities Act does not advance one very far when the statute does not speak to the question before the Court and the general level of confusion around the law suggests that the text needs a practical construction if one is to make sense of it. While the majority did not rigidly insist on a “textualist” approach to the statute, the insistence of three concurrences on such an approach led the majority to drop anything other than a textualist analysis into a footnote and ignore any expansive attempt to provide guidance on how to treat officials or employees of foreign states. This will give comfort to those who insist on “textualism” as the only legitimate approach to interpreting and applying statutes. However, the result is likely to be continuing confusion in the lower courts about the correct response to claims of immunity by officials or employees of foreign states. Samantar also suggests that broad claims about “textualism” as the only appropriate approach to reading and applying statutes is seriously flawed. 

Samantar, Official Immunity and Federal Common Law

Peter B. Rutledge

15 Lewis & Clark L. Rev. 589 (2011)

The Supreme Court’s decision in Samantar is most easily understood as holding that the Foreign Sovereign Immunities Act does not cover claims against individual foreign government officers. Instead of stopping at that rather unassailable conclusion, the Court took the more controversial step of holding that individual officers still could be entitled to immunity as a matter of federal common law. This Symposium Essay, part of a larger set of papers addressing Samantar, criticizes that conclusion. It criticizes the Court for failing to justify this exceptional exercise of its common-law-making power and identifies the pitfalls of this under-theorized conception of federal common law. Instead, this Essay argues, the Court should have refrained from exercising its power here. Such an approach would have had the salutary effect of forcing Congress to fill an obvious gap and, thereby, perhaps bring United States law more into harmony with the prevailing international norms on the subject. Finally, the Essay anticipates potential criticisms to this approach and explains how other doctrines can address those criticisms.

Annotated Brief of Professors of Public International Law and Comparative Law as Amici Curiae in Support of Respondents in Samantar v. Yousuf

Chimène I. Keitner

15 Lewis & Clark L. Rev. 609 (2011)

This annotated amicus brief from Samantar v. Yousuf presents the argument, which was advanced by amici Professors of Public International Law and Comparative Law, that non-FSIA sources of foreign official immunity do not provide a blanket shield from personal liability for universally recognized international law violations, even if such violations were committed by individuals who held government positions. Because non-FSIA immunities derive from a variety of legal sources, it is not possible to reduce them to a single category. Sources of immunity outside the FSIA include international treaties providing certain immunities for accredited diplomats and consuls. They also include customary international law, which may be incorporated as federal common law, providing limited immunities such as that afforded sitting heads of state.

Additionally, some courts have recognized certain immunities for foreign officials who were not diplomats, consuls, or sitting heads of state, but they have done so inconsistently, usually in the contexts of suits in which the state is either the real party in interest or a necessary party. As amici Professors had counseled, the Supreme Court did not need to address these authorities in order to find that the FSIA does not apply to cases such as the one against Samantar. The research contained in this brief will remain relevant in determining the scope of common-law immunity on remand in the Samantar case, and in other cases.

Samantar and the Future of Foreign Official Immunity

David P. Stewart

15 Lewis & Clark L. Rev. 633 (2011)

The U.S. Supreme Court’s recent decision in Samantar v. Yousuf resolved a long-standing issue of U.S. law by determining that the Foreign Sovereign Immunities Act does not apply to claims brought against individual foreign government officials, as opposed to the foreign government itself. The Court also said, however, that individual officials might instead be entitled to immunity under common law principles of foreign sovereign immunity. In remanding the case for a determination of that question, the Court effectively required the executive branch to clarify the circumstances in which such immunity might apply to visiting officials of foreign government for actions taken by them on behalf of their governments.

This Article examines the background and reasoning of the Samantar decision as well as the subsequent determination of the U.S. government to deny immunity in the circumstances of that case. It contrasts that determination with a submission by the executive branch in a separate case recommending that limited testimonial immunity for a former President of Columbia. In this developing area of the law, these two submissions presumably reflect the executive branch’s considered view of how relevant legal principles of customary international law should be applied in future cases as well. The Article raises a number of questions about the practical as well as theoretical implications of the government’s position.



Facilitating Crimes: An Inquiry Into the Selective Invocation
of Offenses Within the Continuum of Criminal Procedures

Kyle Graham

15 Lewis & Clark L. Rev. 665 (2011)

Conventional wisdom holds that all crimes run a gauntlet of procedures that begins with an investigation and arrest, leads to charging and arraignment, and culminates (at least in successful prosecutions) with a conviction and the application of punishment. The reality is more complicated; in fact, there exist “detention crimes,” “charging crimes,” and “pleading crimes,” three types of offenses that, as applied, tend to implicate only portions of this sequence. This Article examines the three categories of “facilitating crimes” and the benefits and drawbacks associated with their use. On the one hand, these offenses may permit more nuanced treatment of specific types of misconduct; on the other, the legitimacy of these offenses may be compromised by their failure to engage the entire “traditional” procedural continuum. This Article concludes that while facilitating crimes and the practices that produce them raise significant concerns, “opt-in” and “opt-out” offenses—two species of crimes that would give defendants a greater role in avoiding portions of the continuum—might be considered as replacements for some conventional crimes. 

Making Sense of Fair Use

Neil Weinstock Netanel

15 Lewis & Clark L. Rev. 715 (2011)

Many criticize fair use doctrine as hopelessly unpredictable and indeterminate. Yet in several recent empirical studies, leading scholars have found some order in fair use case law where others have seen only chaos. Building upon these studies and new empirical research, this Article examines fair use case law through the lens of the doctrine’s chronological development and concludes that in fundamental ways fair use is a different doctrine today than it was ten or twenty years ago. Specifically, the Article traces the rise to prominence of the transformative use paradigm, as adopted by the Supreme Court in Campbell v. Acuff-Rose, over the market-centered paradigm of Harper & Row v. The Nation and its progeny. The Article presents data showing that since 2005 the transformative use paradigm has come overwhelmingly to dominate fair use doctrine, bringing to fruition a shift towards the transformative use doctrine that began a decade earlier. The Article also finds a dramatic increase in defendant win rates on fair use that correlates with the courts’ embrace of the transformative use doctrine. In light of these developments, adding an historical dimension to a study of fair use case law helps to make sense of what might otherwise appear to be a disconnected series of ad hoc, case-by-case judgments and explains why current rulings might seem to contradict those regarding like cases issued when the market-centered paradigm still reigned supreme.



“There’s No Place Like Home”: Super-Sizing the State Constitution’s Bill of Rights

Steven H. Levinson

15 Lewis & Clark L. Rev. 773 (2011)

Though the subject matter of Constitutional Law with respect to civil liberties once consisted almost exclusively of a study of the Untied States Supreme Court’s jurisprudence regarding the first, fourth, fifth, sixth, and fourteenth amendments to the United States Constitution, the last few decades have seen a significant expansion in the use of State Constitutionalism in this area. By interpreting state constitutional provisions independently and differently from counterpart provisions in the federal bill of rights, states have assumed a primary role in expanding civil liberties and limiting unwarranted governmental intrusion into personal affairs. This Article examines two of Hawaii’s successes in using State Constitutionalism to define and enforce civil rights: the application of Hawaii’s equal protection law to the claimed right of same-sex couples to marry and the intersection of Hawaii search-and-seizure law and the police practice known as “walk and talk.”

Using State Constitutions to Find and Enforce Civil Liberties

David Schuman

15 Lewis & Clark L. Rev. 783 (2011)

In many circumstances, a litigant challenging action by a state (or by a local subdivision of the state) can succeed by invoking the state’s constitution, even where a federal constitutional challenge would fail. That is so because the Federal Constitution establishes a minimum quantum of rights that state governments must confer on their citizens, but the state’s citizens can choose, in their state constitution, to give themselves more rights than this minimum. In some states, however, the citizens and their courts have chosen to adopt the federal guaranteed minimum, mostly as a matter of convenience and efficiency. Other states rely on federal rights by default and invoke the state constitution only if it amplifies the Federal Bill of Rights. Still other states have adopted a list of factors to consider in deciding whether to apply an independent interpretation of the state constitution. Oregon, however, always begins a rights-based challenge to state action with the state constitution, under the theory that, until the state’s law, fully implemented—including its constitutional law—can be said to have deprived a citizen of one of the rights in the Federal Constitution made applicable to the states by incorporation into the Fourteenth Amendment, the state has not violated that amendment and there simply is no federal issue.

Oregon free speech law provides a good example of a state’s independent, state-constitution-based interpretation of a right that is in both the State and Federal Constitution. Laws or state actions that implicate expression, allegedly contrary to Oregon’s free speech guarantee (article I, section 8 of the Oregon Constitution), are divided into three categories. Laws that focus on, and expressly prohibit or inhibit, expression per se—that is, laws that impose a sanction for expression regardless of whether the expression causes harm—are per se unconstitutional unless they fall within an exception to the free speech guarantees that was well settled at the time the constitution was adopted, such as perjury or solicitation. Laws that focus on harm, even harm that results from expression, are presumptively constitutional, unless they sweep so broadly as to encompass clearly privileged expression and cannot be judicially narrowed. Examples include laws that punish credible and imminent threats of unprivileged physical violence. Finally, laws that do not mention speech, but that, in a particular situation, are enforced so as to inhibit or punish speech (for example, enforcing a trespass law on public property so as to prohibit otherwise lawful picketing) can be challenged only on an as-applied basis, and are invalidly enforced only when the objective of the enforcement is to stifle speech and not to prevent some regulable harm.

Sleeping Beauty Wide Awake: State Constitutions as Important Independent Sources of Individual Rights
Stephen Kanter

15 Lewis & Clark L. Rev. 799 (2011)

In recent decades, state constitutions have experienced a reawakening as the Supreme Court adopted a less rights-friendly approach and as several advocates issued a call to arms for a revival of state constitutionalism. After reviewing the history and importance of state constitutions, this Essay explores the independent spirit of the constitutions of western states, particularly the Oregon Constitution as a rich state source of individual rights. As examples, this Essay examines three separate state constitutional provisions in relation to the death penalty in Oregon, Oregon’s constitutional free speech provision, and several helpful statutory provisions, which demonstrate the broader protections of individual freedoms available under state constitutions. This Essay contrasts such broad individual protections with Oregon’s unusual allowance of nonunanimous jury convictions in felony cases, showing the need for federal constitutional supervision over state constitutions, even those that are among the most progressive. By comparing the federal and Oregon constitutions, it becomes clear that both federal and state constitutions must be robust systems of constitutional protections, with states being
willing to experiment with progressive policies and add more individual protections than the minimum required by the U.S. Constitution.



Saved by the States? The Vienna Convention on Consular Relations, Federal Government Shortcomings, and Oregon’s Rescue
Nancy Alexander

15 Lewis & Clark L. Rev. 819 (2011)

After the Supreme Court case Medellín v. Texas, the federal government has little control over the fulfillment of U.S. consular notification obligations under the Vienna Convention on Consular Relations because the decision does not force states to carry out International Court of Justice orders that are contrary to state law. This leaves compliance with the Vienna Convention largely up to the individual states. This Comment reviews Oregon’s consular notification practices to assess whether this lack of federal control over the implementation of the Vienna Convention has left it toothless or if individual states may be giving it effect. This Comment suggests that through education and local police policy and procedure, Oregon has helped to implement the Vienna Convention.