Publication Date

Winter 2021


University of Pittsburgh Law Review


The Supreme Court of the United States (“SCOTUS”) very recently punted and left wide a circuit split on a key question under the Foreign Sovereign Immunities Act (“FSIA”): Do plaintiff Holocaust victims need to return to the country that wronged them in order to proceed in a United States federal court that otherwise had jurisdiction over their claims? While sending down unresolved a conflict between the D.C. and Seventh Circuits, in a companion case also involving Holocaust victims, SCOTUS essentially ended an action against Germany by taking the strong suggestion of the Executive Branch through its Solicitor General that a nation’s takings of its own nationals’ property did not amount to a violation of international law, even when the taking involved the degraded and diminished Jews of the Third Reich Period. This Article challenges the continuing, if not rising, influence of Executive Branch voices against Holocaust-related lawsuits in Article III courts by briefly reviewing the FSIA’s 1976 enactment, where Congress textually and intentionally vested full authority in judges, not Executive Branch officials, to determine such cases. I then review the Seventh Circuit’s treatment of “exhaustion/comity”—the remedy supported by the Executive—and another case also litigated in the Seventh Circuit (Scalin), where the State Department explicitly indicated through a Letter of Interest to the district court that Holocaust victims first be sent to the wrongdoing country of origin (France) before being allowed to proceed. This Article points to four perverse ironies in the resurgence of Executive Branch influence over judges in the FSIA cases. The first irony is that the entire motivation behind enacting the FSIA was to codify principles about sovereign immunity so as to elevate and make definitive the decisions of judges. Second, that enhanced Article III role, in the course of litigation through the years, had earlier been used with good intention and purposes by the Executive Branch, which then used its good offices to help negotiate results favorable to plaintiffs—not to end lawsuits brought by, among other genocide victims, U.S. citizen Holocaust victims. Third, U.S. courts do not always fathom the depths of difficulty such victims will encounter—both personally and legally—when they are sent from the frying pan of FSIA litigation to the fire of European jurisdictions supposedly capable of resolving their claims. And finally, in Scalin, plaintiffs would be sent back to seek resolution by a French agency whose powers of restitution emerged from previously successful victim-plaintiff litigation in U.S. courts (in Bodner), but which has not historically taken jurisdiction over railroad-related claims.



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University of Pittsburgh, School of Law


Conflict of Laws | Entertainment, Arts, and Sports Law | International Law | Jurisdiction | Law | Legal Remedies | Legislation



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