Foreign sovereign immunity and comparative institutional competence.

AuthorChilton, Adam S.
PositionIntroduction into III. Evaluating the Claims: Findings A. Before the FSIA: Factors Influencing the State, p. 411-448

ABSTRACT

Policymakers and legal scholars routinely make "comparative institutional competence" claims--claims that one branch of government is better at performing a specified function than another, and that the more competent branch should be in charge of that function. Such claims pervade American law and policy, but they are rarely evaluated with rigor.

We take advantage of an unusual legislative experiment to conduct what we believe to be the first systematic empirical analysis of the comparative institutional competence of the executive and judicial branches in a critical field of American law and policy: U.S. foreign relations. From 1952 to 1976, the U.S. State Department decided whether foreign nations would receive sovereign immunity from suits in U.S. courts. Based on the perception that the State Department's sovereign immunity decisions were overly influenced by political considerations, Congress passed the Foreign Sovereign Immunities Act of 1976 (FSIA), which transferred immunity decisionmaking authority to the judiciary. This transfer was based on an explicit comparative institutional competence claim: that courts are better equipped than the State Department to make immunity decisions based on law rather than politics.

To rigorously evaluate this fundamental claim, we created and analyzed an extensive dataset of foreign sovereign immunity decisions made by the State Department and the U.S. district courts over the last fifty years. Our principal findings are threefold. First, we find little evidence that political factors systematically influenced the State Department's immunity decisions. Second, there is strong evidence that political factors have systematically influenced the courts' decisions. Third, the transfer of immunity decisionmaking authority to the courts did not significantly affect the likelihood of immunity.

All three findings challenge both the underlying comparative institutional competence claims that supported the FSIA's passage and more general conventional understandings about the proper allocation of authority between the executive and judicial branches. To be sure, there may be valid reasons for the judiciary to play a leading role in immunity decisionmaking, and possibly other areas of U.S. foreign relations as well. But our analysis casts doubt on the widely made comparative institutional competence claim that the judicial branch is necessarily better equipped than the executive branch to make foreign relations law decisions free from systematic political influence.

ABSTRACT INTRODUCTION I. THE FSIA'S COMPARATIVE INSTITUTIONAL COMPETENCE CLAIMS A. Foreign Sovereign Immunity and Institutional Choice B. Foreign Sovereign Immunity and the State Department C. Foreign Sovereign Immunity and the Courts II. EVALUATING THE CLAIMS: AN EMPIRICAL STRATEGY A. Building the Foreign Sovereign Immunity Dataset 1. State Department Decisions 2. U.S. District Court Decisions B. Coding Decisions and Measuring Legal and Political Influences 1. Decision 2. Potential Legal Influences on Immunity Decisions 3. Potential Political Influences on Immunity Decisions III. EVALUATING THE CLAIMS: FINDINGS A. Before the FSIA: Factors Influencing the State Department's Foreign Sovereign Immunity Decisions 1. Bivariate Analysis: The Influence of Individual Legal and Political Factors 2. Multivariate Analysis: The Combined Influence of Multiple Legal and Political Factors B. After the FSIA: Factors Influencing the Courts' Foreign Sovereign Immunity Decisions 1. Bivariate Analysis: The Influence of Individual Legal and Political Factors 2. Multivariate Analysis: The Combined Influence of Multiple Legal and Political Factors 3. Legal and Political Influences on the U.S. District Courts' Immunity Decisions: Interpreting the Evidence C. The FSIA and the Likelihood of Immunity 1. Comparison of Immunity Rates Before and After the FSIA 2. Multivariate Analysis: Controlling for Other Potential Influences on the Likelihood of Immunity D. Assessing the Strength of Our Findings IV. BROADER IMPLICATIONS A. Foreign Official Immunity B. Comparative Institutional Competence and Foreign Relations Law C. Doctrinal Clarity and Impartiality D. Empirical Research on Comparative Institutional Competence CONCLUSION APPENDIX A: SUMMARY STATISTICS APPENDIX B: TRADITIONAL REGRESSION TABLES INTRODUCTION

Judges, legislators, and legal scholars often make "comparative institutional competence" claims--claims that one branch of government is better at performing a specified function than another. Based on such claims, they argue for legal rules delegating a function to a particular branch of government, or requiring one branch to defer to another when performing that function. (1)

Comparative institutional competence claims pervade American law and policy. (2) For example, one of the Supreme Court's rationales for its Chevron doctrine of judicial deference to agency interpretation of statutes is that the agencies charged with administering those statutes are better suited than courts to interpret them. (3) Whether a federal court will dismiss a suit based on the political question doctrine in deference to a political branch of government depends on whether there are "judicially discoverable and manageable standards for resolving [the question]" and whether it is possible to decide the question "without an initial policy determination of a kind clearly for nonjudicial discretion." (4) Comparative institutional competence claims are also at the center of debates over the appropriate role of the judicial and executive branches in numerous other fields, such as counterterrorism, (5) government mining of personal data, (6) extradition, (7) and human rights. (8)

As these examples suggest, comparative institutional competence claims are important. (9) Lawmaking and policymaking depend not only on setting social goals, but also on deciding who has the authority to determine how to pursue those goals. (10) Because one institution may be better able to implement those goals than another, the impact of a legal rule or policy depends on which institution has that authority. (11) As Neil Komesar concludes in his landmark book on the subject, "institutional choice is an essential part of law and public policy choice, and, therefore, comparative institutional analysis is an essential part of any analysis of law and public policy." (12) "[D]eciding who decides" matters. (13) But that crucial institutional choice can only be as sound as the comparative institutional competence claims upon which it is based.

Unfortunately, comparative institutional competence claims are rarely evaluated rigorously. (14) As Komesar laments, too often competence claims in favor of particular institutions are simply treated as "intuitively obvious," dealt with "as an afterthought," or defended with a recitation of "a long parade of horribles" that would result from an allocation of authority to a rival institution. (15) Contributing to this problem is a lack of systematic empirical analysis of comparative institutional competence claims. (16) As William Eskridge notes,

most of the generalizations needed to advance a comparative institutional analysis rest upon factual beliefs that are not supported by empirical data or even a representative array of case studies.... [P]recious little empirical work [has] even been attempted.... [I]t is disturbing that comparative institutional analysis of public law often rests upon confident, even dogmatic, factual assertions that are completely unsupported. (17) Foreign relations law is one area where comparative institutional competence claims are frequently made with little empirical evidence. At the most general level, scholars and policymakers are debating whether the executive branch is better equipped to make foreign relations law decisions because of its superior ability to weigh political considerations, or whether these determinations should be left to the courts because they are insulated from political pressures. In these debates, arguments for judicial deference to the executive branch in foreign relations are both defended (18) and criticized (19) based on claims about the competence of the courts and the executive branch. But these debates have unfolded based almost exclusively on anecdotes and untested assumptions. (20)

The debate over comparative institutional competence in foreign relations law has not been confined to academia, but frequently plays out in the courts as well. For example, when the Supreme Court established the act of state doctrine--which bars courts from questioning the validity of public acts of foreign sovereigns within their borders--in the landmark case Banco Nacional de Cuba v. Sabbatino, the decision directly hinged on the "competency of dissimilar institutions [i.e., the executive and the judiciary] to make and implement particular kinds of decisions in the area of international relations." (21) More recently, since the Supreme Court's 2010 decision in Samantar v. Yousuf, (22) the lower courts have been grappling with whether the executive or judicial branch should determine whether individuals should be given immunity from suit because they were acting as foreign government officials. The U.S. government argues that the courts should give it absolute deference on foreign official immunity matters, (23) while others argue that the courts should decide these matters. (24) Both the academic debate and judicial decisions have been hampered, however, by the lack of rigorous, empirical evidence about whether there are systematic differences in the way that the executive and judicial branches make decisions about foreign relations law.

In this Article, we begin tackling this problem. We take advantage of an unusual historical occurrence--a legislative experiment, whereby a specific governmental function was transferred from one branch of government to another--to undertake a...

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