The Political Economy of Foreign Sovereign Immunity

Abstract

Increasingly, legal scholars are examining the ways law is shaped by and influences the political and economic systems central to capitalist societies. By and large, this critical scholarship has focused either on legal domains typically associated with capitalism, such as corporate and trust law, or legal systems that shape the political and social structures upon which capitalism is based, like constitutional law. This Article expands upon this scholarship by exploring the political economy of a legal regime that is not commonly understood to fit into either category: the law of foreign sovereign immunity as reflected in the Foreign Sovereign Immunities Act (“FSIA”). As this Article demonstrates, appreciating the political economy of the FSIA—which prohibits civil litigation against foreign sovereigns unless one of several enumerated exceptions apply—is critical to understanding the legal landscape for suing foreign states in the United States. As this story reveals, the statutory framework for private litigation against foreign sovereigns has long been a creature of capitalist interests and prerogatives—as evidenced by the historical forces that led to the FSIA’s passage; the central role of the commercial activity exception in the FSIA; and the ways courts have interpreted that exception to privilege particular capitalist interests and corporate plaintiffs over other types of claims and claimants. While capitalism’s influence on the FSIA is a story that has yet to be fully told, its telling benefits and enriches the growing scholarship on law and political economy, as well as legal analysis and understanding of the FSIA itself.