The Illegitimacy of Protective Jurisdiction over Foreign Affairs

Abstract

Lawsuits filed in U.S. courts frequently antagonize foreign nations. For example, a sizeable mass tort suit filed against a corporation that is vital to a foreign state's economy is likely to capture the government's attention; in some instances, the lawsuit might compel the foreign government to raise the issue directly with the United States through diplomatic channels. As a result, the suit has potential ramifications for the United States' relations with that nation. Some courts have held that these speculative U.S. foreign relations interests are sufficient to support federal question jurisdiction over cases that are otherwise based on state law.2 In this Comment, I explore whether jurisdiction in such cases can be squared with the statutory and constitutional limits of federal question jurisdiction. The courts that have allowed federal question jurisdiction based on a case's possible impact on U.S. foreign affairs have rested their holdings on the federal common law of foreign relations. In Banco Nacional de Cuba v Sabbatino,3 the Supreme Court recognized that some aspects of the United States' foreign affairs are governed exclu4 sively by federal law. While Sabbatino left many unanswered ques-