Research Matters: Adam Chilton on “Foreign Sovereign Immunity and Comparative Institutional Competence”

Adam Chilton, a Bigelow Fellow, will join the faculty on July 1. He wrote “Foreign Sovereign Immunity and Comparative Institutional Competence” for an upcoming issue of the University of Pennsylvania Law Review with co-author Christopher Whytock, a law and political science professor at the University of California at Irvine. The authors conducted what they believe to be the first systematic empirical analysis of the comparative institutional competence of the executive branch and the judiciary in a critical field of American law and policy: U.S. foreign relations.

Q. Why did you write this?

A. In foreign relations law, and a number of other areas of the law, there are constantly decisions that have to be made about which branch of government would be better at performing a particular function. This is something Eric Posner has written quite a bit on, and Daniel Abebe, and other people on this faculty. But it’s difficult to actually test the effectiveness of how well the different branches perform these functions.

However, this topic, foreign sovereign immunity decisions, presents one way to do exactly that. The idea behind foreign sovereign immunity is that when someone sues a foreign government in a United States court, the foreign government has immunity from suit if the litigation concerns a public act, but not if it concerns a private transaction. This means that someone has to decide whether the litigation concerns a public act or a private transaction, and consequently, whether the government being sued should be given immunity. 

The reason that this is a good way to test comparative institutional competence is that from 1952 to 1977, the State Department had complete discretion and authority to make foreign sovereign immunity decisions. Then, in 1976, Congress passed a statute, the Foreign Sovereign Immunities Act, and afterward the courts had the ability to make these decisions. So it’s one area of foreign relations law where we can test the decision-making of the executive branch and then of courts.

Q. What did you find?

A. One justification for moving the power away from the State Department to the courts was that the State Department was making too many political decisions. The claim was that the State Department was granting immunity to allies or politically important countries when they were sued. We didn’t find any systematic evidence of this. That isn’t to say there aren’t any individual cases where political decisions were made, but across the board, there was no relationship between a number of different variables we use to measure close allies and whether or not immunity was granted.

Then, during the period when the courts had the ability to make decisions, we actually did find a relationship between variables that measured the strategic importance of countries and whether or not they were granted immunity. There are a number of reasons why there is not enough evidence to say that courts are definitely making political decisions, but our results do suggest that there is not evidence that the courts were less political. The results at least questions the conventional wisdom that courts are less political in their decision making over foreign relations than the executive branch.

Q. What’s an example of the courts being political?

A. We found that countries that have formal treaty alliances with the United States – countries in NATO, or the U.N. Security Council – were consistently more likely to have decisions of immunity from courts. We found this to be true both when controlling for facts about the cases and also when trying to control for other facts about the country requesting immunity. There could be other things going on that affected those decisions, but it’s at least some evidence that suggests that courts might care about the political importance of a country when these cases come before them.

Q. So should it be done differently?

A. We don’t go so far to argue that the policy should necessarily change. But there are some implications. First, in a number of other issue areas, the State Department has requested more deference from the courts to make decisions, including in cases where a head of state is sued. Our findings indicate that perhaps we should be less concerned than people previously have been that the State Department will make overtly political decisions and ignore the law.

Another implication of our work relates to the part of the Foreign Sovereign Immunities Act that specifies immunity will not be granted in commercial activity cases. If you sue a foreign government when they’re engaging in a commercial activity, they are not immune from suit. In cases that were about the commercial activity exception, we did not find the same evidence of political factors influencing the likelihood of immunity. So one implication would be that in areas where the doctrine is precise or clear, the courts may follow the doctrine more closely. But in areas where there’s more discretion left to the courts, then there’s a chance that more discretion is used in a way that results in political decision-making. If the goal is to eliminate more political decision-making—which, of course, it may not be—more doctrinal precision would help with that.

Q. Why does this matter?

A. It’s relevant because there are constant debates over the amount of power that should be given to the president and the executive branch, and how much power should be left with other branches of government, with Congress, the courts, or with independent agencies. But it’s r