Choice of Law in Terrorism Cases

Abstract

When an Iranian-backed terrorist group operating out of Lebanon detonates a bomb in Israel that kills a U.S. citizen domiciled in Texas, what law governs civil claims brought against Iran in the District of Columbia? Some version of this choice-of-law question has been presented to U.S. courts many times over the past two decades. Their answers have been frustratingly inconsistent. In some cases, courts have applied the law of the place of the attack. In others, they have applied the law of the plaintiff’s domicile. In still others, they have applied the law of the forum where the plaintiff brings the claim. The end result is a mishmash of inconsistent decisions.

These varying outcomes offer a unique opportunity to evaluate how U.S. courts think about choice-of-law rules in the twenty-first century. After undertaking a comprehensive survey of the relevant decisions, this Article advances four claims. First, it contends that the courts consistently seek to achieve systemwide “conflicts justice” at the expense of individual “material justice” in terrorism cases. Second, it argues that complex multi-factor balancing tests tend to ossify into simpler choice-of-law rules over time. Third, it suggests that applying the law of the District of Columbia to claims with no meaningful connection to the District raises serious due process issues. Finally, it questions whether courts should even undertake a choice-of-law inquiry in cases where state sponsors of terrorism fail altogether to enter an appearance.

Keywords: choice of law, terrorism, foreign sovereign immunities act, civil procedure, District of Columbia, D.C. Circuit