Samantar, Official Immunity and Federal Common Law
Peter B. Rutledge
University of Georgia Law School
February 14, 2011
Lewis & Clark Law Review, Forthcoming
UGA Legal Studies Research Paper No. 11-04
This essay examines the theoretical underpinnings of the immunity of foreign government officials following the Supreme Court's recent decision in Samantar. Part of a forthcoming symposium with the Lewis and Clark Law Review, the paper tackles the federal common law in the Court's decision and, more broadly, international civil litigation. It criticizes the Court's unexamined assumption that its federal common law power extended to create an immunity that, at best, coexists only uncomfortably alongside the legislative framework of the FSIA. It explains the problematic implications of this assertion of federal common law, both for suits against foreign officials and for international civil litigation more generally. Drawing on a longstanding stream of statutory interpretation literature, the paper concludes that the Court should have declined to exercise its gap-filling authority in this context and, instead, employed an information-forcing default rule that would have induced congressional action in the field.
Number of Pages in PDF File: 16
Keywords: Samantar, International Civil Litigation, Federal Comon Law, FSIA, Foreign Sovereign Immunities Act
JEL Classification: k41Accepted Paper Series
Date posted: February 18, 2011
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