Venezuela v. Helmerich: Will Formalism Win Over Substantive Law? Again?

9 Pages Posted: 7 Oct 2016 Last revised: 20 Oct 2016

See all articles by Simona Grossi

Simona Grossi

Loyola Law School Los Angeles; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: October 6, 2016

Abstract

The essay offers an analysis of Venezuela v. Helmerich & Payne International, a case to be argued before the Supreme Court on November 2. That case involves the interpretation and application of the Foreign Sovereign Immunities Act (FSIA). The question presented is whether, when pleading jurisdiction under the expropriation exception to the FSIA, a higher pleading standard should be employed, one under which it is necessary to show that there “actually is” a claim, essentially requiring the plaintiff to establish something more exacting than the plausibility standard. The Petitioners’ argument in Helmerich presents a classic example of arguing from a conception — sovereign immunity — to an abstract but controlling proposition of law. A more realistic approach, one that examines the facts, is put to the side in the interest of the conception. This essay resists that approach and promotes a jurisdictional and pleading analysis that is conducive to the evolution of substantive law and the enforcement of substantive rights.

Suggested Citation

Grossi, Simona, Venezuela v. Helmerich: Will Formalism Win Over Substantive Law? Again? (October 6, 2016). NYU Journal of Law & Liberty, Forthcoming, Loyola Law School, Los Angeles Legal Studies Research Paper No. 2016-26, Available at SSRN: https://ssrn.com/abstract=2849182 or http://dx.doi.org/10.2139/ssrn.2849182

Simona Grossi (Contact Author)

Loyola Law School Los Angeles ( email )

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Los Angeles, CA 90015-1211
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University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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