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Samantar, Official Immunity and Federal Common Law

16 Pages Posted: 18 Feb 2011  

Peter B. Rutledge

University of Georgia School of Law

Date Written: February 14, 2011

Abstract

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.

Keywords: Samantar, International Civil Litigation, Federal Comon Law, FSIA, Foreign Sovereign Immunities Act

JEL Classification: k41

Suggested Citation

Rutledge, Peter B., Samantar, Official Immunity and Federal Common Law (February 14, 2011). Lewis & Clark Law Review, Forthcoming; UGA Legal Studies Research Paper No. 11-04. Available at SSRN: https://ssrn.com/abstract=1761679

Peter B. Rutledge (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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