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(Slip Opinion)
OCTOBER TERM, 2020
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FEDERAL REPUBLIC OF GERMANY ET AL. v. PHILIPP
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 19–351.
Argued December 7, 2020—Decided February 3, 2021
Respondents are the heirs of German Jewish art dealers who formed a
consortium during the waning years of the Weimar Republic to purchase a collection of medieval relics known as the Welfenschatz. The
heirs allege that when the Nazi government rose to power, it unlawfully coerced the consortium into selling the collection to Prussia for a
third of its value. The relics are currently maintained by the Stiftung
Preussischer Kulturbesitz (SPK), an instrumentality of the Federal
Republic of Germany, and displayed at a Berlin museum. After unsuccessfully seeking compensation in Germany, the heirs brought several
common law property claims in United States District Court against
Germany and SPK (collectively Germany). Germany moved to dismiss, arguing that it was immune from suit under the Foreign Sovereign Immunities Act. As relevant, Germany asserted that the heirs’
claims did not fall within the FSIA’s exception to sovereign immunity
for “property taken in violation of international law,” 28 U. S. C.
§1605(a)(3), because a sovereign’s taking of its own nationals’ property
is not unlawful under the international law of expropriation. The heirs
countered that the exception did apply because Germany’s purchase of
the Welfenschatz was an act of genocide, and the relics were therefore
taken in violation of international human rights law. The District
Court denied Germany’s motion to dismiss, and the D. C. Circuit affirmed.
Held: The phrase “rights in property taken in violation of international
law,” as used in the FSIA’s expropriation exception, refers to violations
of the international law of expropriation and thereby incorporates the
domestic takings rule. Pp. 4–16.
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FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Syllabus
(a) The heirs contend that their claims fall within the FSIA’s exception for cases involving “property taken in violation of international
law,” §1605(a)(3)—a provision known as the expropriation exception—
because the forced sale of the Welfenschatz constituted an act of genocide, and genocide is a violation of international human rights law.
Germany argues that the relevant international law is not the law of
genocide but the international law of expropriation, under which a foreign sovereign’s taking of its own nationals’ property remains a domestic affair. Pp. 4–13.
(1) The “domestic takings rule” invoked by Germany derives from
the premise that international law customarily concerns relations
among states, not between states and individuals. Historically, a sovereign’s taking of a foreign national’s property implicated international law because it constituted an injury to the state of the alien’s
nationality. A domestic taking, by contrast, did not interfere with relations among states. This domestic takings rule endured even as a
growing body of human rights law made states’ treatment of individual
human beings a matter of international concern. And those who criticized the treatment of property rights under international law did so
on the ground that all sovereign takings, not just domestic takings,
were outside the scope of that law. This dispute over the existence of
international law constraints on sovereign takings eventually reached
the Court in Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 436.
Hesitant to delve into this controversy, the Court instead invoked the
act of state doctrine. In response, Congress passed the Second Hickenlooper Amendment to the Foreign Assistance Act of 1964, which prohibits United States courts from applying the act of state doctrine
where a “right[ ] to property is asserted” based upon a “taking . . . by
an act of that state in violation of . . . international law.” 22 U. S. C.
§2370(e)(2). Courts and commentators understood the Amendment to
permit adjudication of claims Sabbatino had avoided deciding, i.e.,
claims against other countries for expropriation of American-owned
property. But nothing in the Amendment purported to alter any rule
of international law, including the domestic takings rule. Congress
used nearly identical language when it crafted the FSIA’s expropriation exception twelve years later. Based on this historical and legal
background, courts reached a “consensus” that the expropriation exception’s “reference to ‘violation of international law’ does not cover
expropriations of property belonging to a country’s own nationals.” Republic of Austria v. Altmann, 541 U. S. 677, 713 (BREYER, J., concurring). Pp. 5–8.
(2) The heirs concede that the international law of expropriation
retained the domestic takings rule at the time of the FSIA’s enactment,
but they read “rights in property taken in violation of international
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Syllabus
law” to incorporate any international norm, including international
human rights law, rather than merely the international law of expropriation. The text of the FSIA’s expropriation exception, however, supports Germany’s reading. The exception places repeated emphasis on
property and property-related rights, while injuries and acts associated with violations of human rights law, such as genocide, are notably
lacking—a remarkable omission if the provision was intended to provide relief for atrocities such as the Holocaust. A statutory phrase concerning property rights most sensibly references the international law
governing property rights, rather than the law of genocide. The heirs’
position would arguably force courts themselves to violate international law not only by ignoring the domestic takings rule, but also by
derogating international law’s preservation of sovereign immunity for
violations of human rights law. Germany’s interpretation of the exception is also more consistent with the FSIA’s express goal of codifying the restrictive theory of sovereign immunity, 28 U. S. C. §1602, under which immunity extends to a sovereign’s public, but not private,
acts. It would destroy the Act’s distinction between private and public
acts were the Court to subject all manner of sovereign public acts to
judicial scrutiny under the FSIA by transforming the expropriation exception into an all-purpose jurisdictional hook for adjudicating human
rights violations. Pp. 8–12.
(3) Other FSIA provisions confirm Germany’s position. The heirs’
approach would circumvent the reticulated boundaries Congress
placed in the FSIA with regard to bringing claims asserting human
rights violations. One FSIA exception, for example, provides jurisdiction over claims “in which money damages are sought against a foreign
state for personal injury or death, or damage to or loss of property,”
but only where the relevant conduct “occurr[ed] in the United States.”
§1605(a)(5). And the FSIA’s terrorism exception eliminates sovereign
immunity for state sponsors of terrorism, but only for certain human
rights claims, brought by certain victims, against certain defendants.
§§1605A(a),(h). Such restrictions would be of little consequence if human rights abuses could be packaged as violations of property rights
and thereby brought within the expropriation exception. Pp. 12–13.
(b) The heirs’ counterarguments cannot overcome the text, context,
and history of the expropriation exception. They claim that the 2016
Foreign Cultural Exchange Jurisdictional Immunity Clarification
Act—which amends the FSIA to explain that participation in specified
“art exhibition activities” does not qualify as “commercial activity” under the expropriation exception, §1605(h)—demonstrates that Congress anticipated that Nazi-era claims could be adjudicated under the
exception. Congress’s effort to preserve sovereign immunity in a nar-
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FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Syllabus
row, particularized context, however, does not support the broad elimination of sovereign immunity across all areas of law. Other statutes
aimed at promoting restitution to Holocaust victims, on which the
heirs rely, generally encourage redressing those injuries outside of
public court systems and do not speak to sovereign immunity. See,
e.g., Holocaust Expropriated Art Recovery Act of 2016, 130 Stat. 1524.
Pp. 14–15.
(c) This Court does not address Germany’s argument that the District Court was obligated to abstain from deciding the case on international comity grounds or the heirs’ alternative argument that the sale
of the Welfenschatz is not subject to the domestic takings rule because
the consortium members were not German nationals at the time of the
transaction. Pp. 15–16.
894 F. 3d. 406, vacated and remanded.
ROBERTS, C. J., delivered the opinion for a unanimous Court.
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–351
_________________
FEDERAL REPUBLIC OF GERMANY, ET AL.,
PETITIONERS v. ALAN PHILIPP, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[February 3, 2021]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The Foreign Sovereign Immunities Act provides that foreign nations are presumptively immune from the jurisdiction of United States courts. The statute, however, sets
forth several specific exceptions. One such exception provides that a sovereign does not enjoy immunity in any case
“in which rights in property taken in violation of international law are in issue.” 28 U. S. C. §1605(a)(3). The question presented is whether a country’s alleged taking of property from its own nationals falls within this exception.
I
This case concerns several dozen medieval relics and devotional objects known as the Welfenschatz. The treasure
(“schatz”) of the German Welf dynasty, the pieces date back
to the early days of the Holy Roman Empire and occupy a
unique position in German history and culture. The collection was assembled within Germany’s Brunswick Cathedral over the course of several centuries, before being
moved to a Hanoverian chapel in 1671 and later to Switzerland for safekeeping in the wake of World War I.
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FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
During the waning years of the Weimar Republic, a consortium of three art firms owned by Jewish residents of
Frankfurt purchased the Welfenschatz from the Duke of
Brunswick. By 1931, the consortium had sold about half of
the collection’s pieces to museums and individuals in Europe and the United States, including many to the Cleveland Museum of Art, where they reside today.
Conditions facing the consortium changed dramatically
after the collapse of the German economy and the rise of the
Nazi government. After ascending to power, Hermann Goering—Adolf Hitler’s deputy and the Prime Minister of Prussia—became interested in the remainder of the Welfenschatz.
The complaint alleges that he employed a
combination of political persecution and physical threats to
coerce the consortium into selling the remaining pieces to
Prussia in 1935 for approximately one-third of their value.
Two of the consortium members fled the country following
the sale, and the third died in Germany shortly thereafter.
The United States took possession of the Welfenschatz in
the course of the occupation of Nazi Germany at the end of
the war, eventually turning the collection over to the
Federal Republic of Germany. For nearly 60 years, the
treasure has been maintained by Stiftung Preussischer
Kulturbesitz (SPK)—the Prussian Cultural Heritage Foundation—and it is now displayed at a museum in Berlin.
SPK is an instrumentality of the Federal Republic.
Respondents are two United States citizens and a citizen
of the United Kingdom who trace their lineages back to the
three members of the consortium. The heirs first approached SPK claiming that the sale of the Welfenschatz to
the Prussian Government was unlawful. SPK conducted its
own investigation of the sale and determined that the
transaction occurred at a fair market price without coercion.
In 2014, the parties agreed to submit the claim to the
German Advisory Commission for the Return of Cultural
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Opinion of the Court
Property Seized as a Result of Nazi Persecution, Especially
Jewish Property. Germany established the Advisory Commission under the Washington Conference Principles on
Nazi-Confiscated Art, an initiative spearheaded by the
United States to encourage the development of new mechanisms for resolving Nazi-era claims. See Brief for United
States as Amicus Curiae 4. After hearing from expert witnesses and reviewing documentary evidence, the Commission likewise concluded that the sale had occurred at a fair
price without duress.
Disappointed by the proceedings in Germany, the heirs
filed suit in Federal District Court in Washington, D. C.
They brought several common law property claims against
Germany and SPK, seeking $250 million in compensation.
Petitioners SPK and the Federal Republic of Germany—collectively Germany—moved to dismiss the case. Relevant
here, Germany argued that it was immune from suit because the heirs’ claims did not fall within the FSIA’s exception to immunity for “property taken in violation of international law.” See 28 U. S. C. §1605(a)(3); see also §1603(a)
(defining “foreign state” to include “an agency or instrumentality of a foreign state”). In doing so, Germany reasoned
that the purchase of the Welfenschatz could not have violated international law because a sovereign’s taking of its
own nationals’ property is not unlawful under the international law of expropriation. The heirs responded that the
exception did apply because Germany’s purchase of the
Welfenschatz was an act of genocide and the taking therefore violated the international law of genocide.
The District Court denied Germany’s motion, 248
F. Supp. 3d 59, 70–74 (DC 2017), and a panel of the D. C.
Circuit affirmed, 894 F. 3d 406 (2018). The panel agreed
with the heirs that the exception for property taken in violation of international law was satisfied because “genocide
perpetrated by a state even against its own nationals is a
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FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
violation of international law.” Id., at 410–411 (quoting Simon v. Republic of Hungary, 812 F. 3d 127, 145 (CADC
2016); alterations omitted). The D. C. Circuit declined Germany’s request for en banc review. 925 F. 3d 1349 (2019)
(per curiam).
Judge Katsas dissented from the denial of rehearing en
banc. In his view, the majority’s analysis erroneously
“ma[de] the district court sit as a war crimes tribunal to adjudicate claims of genocide,” while “clear[ing] the way for a
wide range of litigation against foreign sovereigns for public
acts committed within their own territories.” Id., at 1350.
We granted certiorari. 591 U. S. ___ (2020).
II
Enacted in 1976, the Foreign Sovereign Immunities Act
supplies the ground rules for “obtaining jurisdiction over a
foreign state in the courts of this country.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 443
(1989). The Act creates a baseline presumption of immunity from suit. §1604. “[U]nless a specified exception applies, a federal court lacks subject-matter jurisdiction over
a claim against a foreign state.” Saudi Arabia v. Nelson,
507 U. S. 349, 355 (1993).
The heirs contend that their claims fall within the exception for “property taken in violation of international law,”
§1605(a)(3), because the coerced sale of the Welfenschatz,
their property, constituted an act of genocide, and genocide
is a violation of international human rights law. Germany
argues that the exception is inapplicable because the relevant international law is the international law of property—not the law of genocide—and under the international
law of property a foreign sovereign’s taking of its own nationals’ property remains a domestic affair. This “domestic
takings rule” assumes that what a country does to property
belonging to its own citizens within its own borders is not
the subject of international law. See Bolivarian Republic of
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Opinion of the Court
Venezuela v. Helmerich & Payne Int’l Drilling Co., 581 U. S.
___, ___ (2017) (slip op., at 10) (citing Restatement (Third)
of Foreign Relations Law of the United States §712 (1986)
(Restatement (Third))).
A
Known at the founding as the “law of nations,” what we
now refer to as international law customarily concerns relations among sovereign states, not relations between
states and individuals. See Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 422 (1964) (“The traditional view of
international law is that it establishes substantive principles for determining whether one country has wronged another.”).
The domestic takings rule invoked by Germany derives
from this premise. Historically, a sovereign’s taking of a
foreigner’s property, like any injury of a foreign national,
implicated the international legal system because it “constituted an injury to the state of the alien’s nationality.”
Bradley & Goldsmith, Customary International Law as
Federal Common Law: A Critique of the Modern Position,
110 Harv. L. Rev. 815, 831, n. 106 (1997); see S. Friedman,
Expropriation in International Law 5, 139 (1953). Such
mistreatment was an affront to the sovereign, and “therefore the alien’s state alone, and not the individual, could invoke the remedies of international law.” Bradley, supra, at
831, n. 106. A domestic taking by contrast did not interfere
with relations among states. See E. de Vattel, 3 The Law
of Nations §81, p. 138 (C. Fenwick transl. 1916) (“Even the
property of individuals, taken as a whole, is to be regarded
as the property of the Nation with respect to other Nations.”); see also United States v. Belmont, 301 U. S. 324,
332 (1937) (“What another country has done in the way of
taking over property of its nationals . . . is not a matter for
judicial consideration here.”).
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FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
The domestic takings rule has deep roots not only in international law but also in United States foreign policy.
Secretary of State Cordell Hull most famously expressed
the principle in a 1938 letter to the Mexican Ambassador
following that country’s nationalization of American oil
fields. The Secretary conceded “the right of a foreign government to treat its own nationals in this fashion if it so
desires. This is a matter of domestic concern.” Letter from
C. Hull to C. Nájera (July 21, 1938), reprinted in 5 Foreign
Relations of the United States Diplomatic Papers 677
(1956). The United States, however, could not “accept the
idea” that “these plans can be carried forward at the expense of our citizens.” Ibid.
The domestic takings rule endured even as international
law increasingly came to be seen as constraining how states
interacted not just with other states but also with individuals, including their own citizens. The United Nations Universal Declaration of Human Rights and Convention on the
Prevention of Genocide became part of a growing body of
human rights law that made “how a state treats individual
human beings . . . a matter of international concern.” Bradley, supra, at 832 (quoting Restatement (Third), pt. VII, Introductory Note, at 144–145). These human rights documents were silent, however, on the subject of property
rights. See Friedman, supra, at 107. International tribunals therefore continued to maintain that international law
governed “confiscation of the property of foreigners,” but
“measures taken by a State with respect to the property of
its own nationals are not subject to these principles.” Gudmundsson v. Iceland, Appl. No. 511/59, 1960 Y. B. Eur.
Conv. on H. R. 394, 423–424 (decision of the European Commission on Human Rights).
Some criticized the treatment of property rights under international law, but they did so on the ground that all sovereign takings were outside the scope of international law,
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Opinion of the Court
not just domestic takings. In the 1950s and 1960s, a growing chorus of newly independent states, particularly in
Latin America, resisted any foreign restraint on their ability to nationalize property. See Young, The Story of Banco
Nacional de Cuba v. Sabbatino, in Federal Courts Stories
422–423 (V. Jackson & J. Resnik eds. 2010). Put differently, states and scholars disagreed over whether international law provided a remedy for a sovereign’s interference
with anyone’s property rights, not whether domestic takings were outside the purview of international law. That
principle was beyond debate.
We confronted this dispute over the existence of international law constraints on sovereign takings in Sabbatino,
where we were asked to decide claims arising out of Cuba’s
nationalization of American sugar interests in 1960. 376
U. S., at 403. This Court observed that there were “few if
any issues in international law today on which opinion
seems to be so divided as the limitations on a state’s power
to expropriate the property of aliens.” Id., at 428 (emphasis
added). Hesitant to delve into this controversy, we instead
invoked the act of state doctrine, which prevents United
States courts from determining the validity of the public
acts of a foreign sovereign. Id., at 436.
Congress did not applaud the Court’s reticence. Within
months of Sabbatino, it passed the Second Hickenlooper
Amendment to the Foreign Assistance Act of 1964. The
Amendment prohibits United States courts from applying
the act of state doctrine where a “right[ ] to property is asserted” based upon a “taking . . . by an act of that state in
violation of the principles of international law.” 22 U. S. C.
§2370(e)(2). Courts and commentators understood the
Amendment to permit adjudication of claims the Sabbatino
decision had avoided—claims against foreign nations for expropriation of American-owned property. But nothing in
the Amendment purported to alter any rule of international
law, including the domestic takings rule. See F. Palicio y
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Opinion of the Court
Compania, S. A. v. Brush, 256 F. Supp. 481, 487 (SDNY
1966) (interpreting the Hickenlooper Amendment to displace Sabbatino but dismissing the suit on the ground that
“confiscations by a state of the property of its own nationals,
no matter how flagrant . . . , do not constitute violations of
international law”), summarily aff ’d, 375 F. 2d 1011 (CA2
1967); Banco Nacional de Cuba v. Farr, 383 F. 2d 166, 173–
176 (CA2 1967); Restatement (Second) of Foreign Relations
Law of the United States §185 (1965) (Restatement (Second)); Lillich, The Proper Role of Domestic Courts in the
International Legal Order, 11 Va. J. Int’l L. 9, 29, 34 (1970).
Congress used language nearly identical to that of the
Second Hickenlooper Amendment 12 years later in crafting
the FSIA’s expropriation exception. As noted, it provides
that United States courts may exercise jurisdiction over a
foreign sovereign in any case “in which rights in property
taken in violation of international law are in issue.” 28
U. S. C. §1605(a)(3).
Based on this historical and legal background, courts arrived at a “consensus” that the expropriation exception’s
“reference to ‘violation of international law’ does not cover
expropriations of property belonging to a country’s own nationals.” Republic of Austria v. Altmann, 541 U. S. 677, 713
(2004) (BREYER, J., concurring).
B
The heirs urge us to change course. They read “rights in
property taken in violation of international law” not as an
invocation of the international law governing property
rights, but as a broad incorporation of any international
norm. Focusing on human rights law, the heirs rely on the
United Nations Convention on Genocide, which defines
genocide as “deliberately inflicting on [a] group conditions
of life calculated to bring about its physical destruction in
whole or in part.” Convention on the Prevention and Punishment of the Crime of Genocide, Art. II, Dec. 9, 1948, 78
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Opinion of the Court
U. N. T. S. 277, 280. According to the heirs, the forced sale
of their ancestors’ art constituted an act of genocide because
the confiscation of property was one of the conditions the
Third Reich inflicted on the Jewish population to bring
about their destruction.
We need not decide whether the sale of the consortium’s
property was an act of genocide, because the expropriation
exception is best read as referencing the international law
of expropriation rather than of human rights. We do not
look to the law of genocide to determine if we have jurisdiction over the heirs’ common law property claims. We look
to the law of property.
And in 1976, the state of that body of law was clear: A
“taking of property” could be “wrongful under international
law” only where a state deprived “an alien” of property. Restatement (Second) §185; see also Permanent Mission of India to United Nations v. City of New York, 551 U. S. 193,
199–200 (2007) (noting our consistent practice of interpreting the FSIA in keeping with “international law at the time
of the FSIA’s enactment” and looking to the contemporary
Restatement for guidance). As explained above, this rule
survived the advent of modern human rights law, including
the United Nations Convention on Genocide. Congress
drafted the expropriation exception and its predecessor, the
Hickenlooper Amendment, against that legal and historical
backdrop. See Taggart v. Lorenzen, 587 U. S. ___, ___
(2019) (slip op., at 5).
The heirs concede that at the time of the FSIA’s enactment the international law of expropriation retained the domestic takings rule. See Restatement (Second) §192. But
they argue that Congress captured all of international law
in the exception—not just the international law of expropriation—and that other areas of international law do not
shield a sovereign’s actions against its own nationals. In
support of that assertion, they note that the exception concerns “property taken in violation of international law”—
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FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
not “property takings in violation of international law.” Tr.
of Oral Arg. 70. This distinction between “takings” and
“taken,” they say, is the difference between incorporating
the specific international law governing takings of property
and incorporating international law writ large. Ibid.
We would not place so much weight on a gerund. The text
of the expropriation exception as a whole supports Germany’s reading. In its entirety the clause provides that
United States courts may exercise jurisdiction over a foreign sovereign in any case
“in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the
United States in connection with a commercial activity
carried on in the United States by the foreign state; or
that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the
United States.” 28 U. S. C. §1605(a)(3).
The exception places repeated emphasis on property and
property-related rights, while injuries and acts we might
associate with genocide are notably lacking. That would be
remarkable if the provision were intended to provide relief
for atrocities such as the Holocaust. A statutory phrase
concerning property rights most sensibly references the international law governing property rights, rather than the
law of genocide.
What is more, the heirs’ interpretation of the phrase
“taken in violation of international law” is not limited to violations of the law of genocide but extends to any human
rights abuse. Their construction would arguably force
courts themselves to violate international law, not only ignoring the domestic takings rule but also derogating inter-
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Opinion of the Court
national law’s preservation of sovereign immunity for violations of human rights law. As the International Court of
Justice recently ruled when considering claims brought by
descendants of citizens of Nazi-occupied countries, “a State
is not deprived of immunity by reason of the fact that it is
accused of serious violations of international human rights
law.” Jurisdictional Immunities of the State (Germany v.
Italy), 2012 I. C. J. 99, 139 (Judgt. of Feb. 3); see also Bradley & Goldsmith, Foreign Sovereign Immunity, Individual
Officials, and Human Rights Litigation, 13 Green Bag 2d 9,
21 (2009). Respondents would overturn that rule whenever
a violation of international human rights law is accompanied by a taking of property.
Germany’s interpretation of the exception is also more
consistent with the FSIA’s express goal of codifying the restrictive theory of sovereign immunity. §1602. Under the
absolute or classical theory of sovereign immunity, foreign
sovereigns are categorically immune from suit. Altmann,
541 U. S., at 690. Under the restrictive view, by contrast,
immunity extends to a sovereign’s public but not its private
acts. Ibid. Most of the FSIA’s exceptions, such as the exception for “commercial activity carried on in the United
States,” comport with the overarching framework of the restrictive theory. §1605(a)(2).
It is true that the expropriation exception, because it permits the exercise of jurisdiction over some public acts of expropriation, goes beyond even the restrictive view. In this
way, the exception is unique; no other country has adopted
a comparable limitation on sovereign immunity. Restatement (Fourth) of Foreign Relations Law of the United
States §455, Reporters’ Note 15 (2017).
History and context explain this nonconformity. As
events such as Secretary Hull’s letter and the Second Hickenlooper Amendment demonstrate, the United States has
long sought to protect the property of its citizens abroad as
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Opinion of the Court
part of a defense of America’s free enterprise system. Sabbatino, 376 U. S., at 430.
Given that the FSIA “largely codifies” the restrictive theory, however, we take seriously the Act’s general effort to
preserve a dichotomy between private and public acts. Nelson, 507 U. S., at 359 (internal quotation marks omitted).
It would destroy that distinction were we to subject all manner of sovereign public acts to judicial scrutiny under the
FSIA by transforming the expropriation exception into an
all-purpose jurisdictional hook for adjudicating human
rights violations. See Helmerich, 581 U. S., at ___ (slip op.,
at 9) (rejecting the suggestion that Congress intended the
expropriation exception to operate as a “radical departure”
from the “basic principles” of the restrictive theory).
C
Other provisions of the FSIA confirm Germany’s position.
The heirs’ approach, for example, would circumvent the reticulated boundaries Congress placed in the FSIA with regard to human rights violations. Where Congress did target injuries associated with such acts, including torture or
death, it did so explicitly and with precision. The noncommercial tort exception provides jurisdiction over claims “in
which money damages are sought against a foreign state for
personal injury or death, or damage to or loss of property,”
but only where the relevant conduct “occurr[ed] in the
United States.” §1605(a)(5). Similarly, the terrorism exception eliminates sovereign immunity for state sponsors of
terrorism but only for certain human rights claims, brought
by certain victims, against certain defendants. §§1605A(a),
(h).
These restrictions would be of little consequence if human rights abuses could be packaged as violations of property rights and thereby brought within the expropriation
exception to sovereign immunity. And there is no reason to
suppose Congress thought acts of genocide or other human
Cite as: 592 U. S. ____ (2021)
13
Opinion of the Court
rights violations to be especially deserving of redress only
when accompanied by infringement of property rights. We
have previously rejected efforts to insert modern human
rights law into FSIA exceptions ill suited to the task. Nelson, 507 U. S., at 361 (commercial activity exception does
not encompass claims that foreign state illegally detained
and tortured United States citizen, “however monstrous
such abuse undoubtedly may be”). We do so again today.
We have recognized that “ ‘United States law governs domestically but does not rule the world.’ ” Kiobel v. Royal
Dutch Petroleum Co., 569 U. S. 108, 115 (2013) (quoting Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 454 (2007)). We
interpret the FSIA as we do other statutes affecting international relations: to avoid, where possible, “producing friction in our relations with [other] nations and leading some
to reciprocate by granting their courts permission to embroil the United States in expensive and difficult litigation.”
Helmerich, 581 U. S., at ___ (slip op., at 12) (internal quotation marks omitted); RJR Nabisco, Inc. v. European Community, 579 U. S. ___, ___–___ (2016) (slip op., at 7–8) (interpreting civil Racketeer Influenced and Corrupt
Organizations Act “to avoid the international discord that
can result when U. S. law is applied to conduct in foreign
countries”); Kiobel, 569 U. S., at 116 (interpreting Alien
Tort Statute so as not to “adopt an interpretation of U. S.
law that carries foreign policy consequences not clearly intended by the political branches”).
As a Nation, we would be surprised—and might even initiate reciprocal action—if a court in Germany adjudicated
claims by Americans that they were entitled to hundreds of
millions of dollars because of human rights violations committed by the United States Government years ago. There
is no reason to anticipate that Germany’s reaction would be
any different were American courts to exercise the jurisdiction claimed in this case.
14
FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
III
The heirs offer several counterarguments, but none can
overcome the text, context, and history of the expropriation
exception.
First, the heirs rely on the 2016 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act. The Act
amends the FSIA to explain that participation in specified
“art exhibition activities” does not qualify as “commercial
activity” within the meaning of the expropriation exception.
28 U. S. C. §1605(h). This clarification responded to decisions of federal courts holding to the contrary, see, e.g.,
Malewicz v. Amsterdam, 362 F. Supp. 2d 298, 313–315 (DC
2005), and enables foreign states to loan art to American
museums without fear that the work’s presence in the
United States will subject them to litigation here. The provision, however, does not apply to claims brought against
Germany arising out of the period from January 1933
through May 1945. §§1605(h)(2), (3). According to the
heirs, this clarification of the expropriation exception shows
that Congress anticipated Nazi-era claims could be adjudicated by way of that exception.
We agree with the heirs, but only to a limited extent.
Claims concerning Nazi-era art takings could be brought
under the expropriation exception where the claims involve
the taking of a foreign national’s property. See, e.g., Altmann, 541 U. S., at 680–682 (claim concerning Austrian
taking of Czechoslovakian national’s art brought under the
expropriation exception). As for the heirs’ suggestion that
the Clarification Act demonstrates that Congress meant to
abrogate immunity for any Nazi-era claim, however, we do
not interpret Congress’s effort to preserve sovereign immunity in a narrow, particularized context—art shows—as
supporting the broad elimination of sovereign immunity
across all areas of law. The Clarification Act did not purport to amend the critical phrase here—“taken in violation
of international law”—and we will not construe it to do so.
Cite as: 592 U. S. ____ (2021)
15
Opinion of the Court
The heirs also rely on other statutes aimed at promoting
restitution to the victims of the Holocaust. The Acts include
the Holocaust Victims Redress Act of 1998, 112 Stat. 15; the
Holocaust Expropriated Art Recovery Act of 2016 (HEAR
Act), 130 Stat. 1524; and the Justice for Uncompensated
Survivors Today (JUST) Act of 2017, Pub. L. 115–171, 132
Stat. 1288. These laws, the heirs suggest, demonstrate
Congress’s desire for American courts to hear disputes
about Holocaust-era property claims.
The statutes do promote restitution for the victims of the
Holocaust, but they generally encourage redressing those
injuries outside of public court systems. The HEAR Act, for
example, states that “the use of alternative dispute resolution” mechanisms will “yield just and fair resolutions in a
more efficient and predictable manner” than litigation in
court. §2(8), 130 Stat. 1525. Germany has adopted just
such an alternative mechanism, the Advisory Commission,
and the heirs availed themselves of that opportunity to resolve their claims. Ibid. See also Brief for Petitioners 5
(“[T]he German government has provided roughly $100 billion (in today’s dollars) to compensate Holocaust survivors
and other victims of the Nazi era.”).
These laws do not speak to sovereign immunity. That is
the province of the FSIA, which provides the carefully constructed framework necessary for addressing an issue of
such international concern. The heirs have not shown that
the FSIA allows them to bring their claims against Germany. We cannot permit them to bypass its design.
IV
We hold that the phrase “rights in property taken in violation of international law,” as used in the FSIA’s expropriation exception, refers to violations of the international law
of expropriation and thereby incorporates the domestic takings rule.
We do not address Germany’s argument that the District
16
FEDERAL REPUBLIC OF GERMANY v. PHILIPP
Opinion of the Court
Court was obligated to abstain from deciding the case on
international comity grounds. Nor do we consider an alternative argument noted by the heirs: that the sale of the
Welfenschatz is not subject to the domestic takings rule because the consortium members were not German nationals
at the time of the transaction. See Brief for Respondents
27–28; but see Brief for Petitioners 19, n. 7 (claiming that
the heirs forfeited this argument). The Court of Appeals
should direct the District Court to consider this argument,
including whether it was adequately preserved below.
The judgment of the Court of Appeals for the D. C. Circuit
is vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Index
Introduction ………………………………………………………………………p 3
Judicial Review on Congress …………………………………………………………p. 8
– Invalidity of an Act of Congress MARBURY v. Madison p8
– ‘P; LOP09 CHADHA p9
Judicial Review on State Court decisions……………………………………………………p. 10
– Supreme Court review on state court decision involving Federal law (statutes,
Constitution, treaty) MARTIN p 10
– Bush v. Gore (Not a binding precedent) BUSH p11
Limits of judicial Review: …………………………………………………………………p. 12
– Political question BAKER v. CARR p12
– Political question (Procedure of Impeachment) NIXON p14
The Court System…………………………………………………………………………… p 16
The Court System: Determination of The Citizenship – Subject Matter Jurisdiction………. p24
GALLAGHER v. PHILADELPHIA TRANSPORT………………………………… p 24
SOSA (D) v. ALVAREZ MACHAIN (P) ………………………p26
Territorial Jurisdiction……………………….…………………………………………p. 28
– Territorial Jurisdiction (Personal jurisdiction)
– Defendant Minimum contact test (NO) ASAHI
– Defendant Minimum contact test (YES) MCINTYRE
Summary judgment…………………………………………………p. 34
– Defendant Movant party – “no evidence motion” for summary judgment CELOTEX
– a motion for summary judgment Kutrom Corp. v. Center Line
Torts……………………………………….……………………….………p. 39
– Duty of care with a Federal scheme SOLOMON
– Duty of care without Federal scheme – Foreseeability CLEVELAND LODGE
Executive Power – Domestic affairs…………………………………….………………………………………..p. 42
– Executive branch – Article II
– Executive power of the President
– Authorization of the Congress – Seizure of private property YOUNGSTOWN
– No Judicial review over the exercise of the executive power NEWMAN
Executive Power – Privileges and Immunity……………………….……………………..…………………..p. 47
– President privilege is not absolute NIXON
o Privilege v. immunity
o Proof of the privilege
o Camera review
– Absolute (president) and qualified immunity (president ‘aides): HARLOW
– No absolute immunity for unofficial conduct before the office – stand trial CLITON
Executive Power – Foreign affairs……………………….……………………………………………….………..p. 47
– Article II of the Constitution
– Suspension of claim to resolve major foreign dispute DAMES & MOORE
– Enemy combatant – Due process – Congress authority to balance with others Acts
HAMDI
1
Federal Congressional Authority……………………….………………………………………………….……….p. 49
– Article I of the Constitution
– Necessary and proper clause – Article 1, Section 8, clause 18
o Congress power to enact laws – Power to tax MCCULLOCH
– Commerce clause – Article 1 of the Constitution – Section 8 – Clause 3
o Congress power to regulate interstate commerce GIBBONS
o Interstate commerce MARTIN
o Rehnquist’s opinion in Lopez, 514 US at 553 -58:
Criminal Procedure: unreasonable searches and seizures………………….…………………….……p. 41
– Evidence – violation of the 4th amendment MAPP
– Physical penetration – judicial process KATZ
– New technology and privacy RILEY
Criminal Trials: The Duties of The Prosecutor and The Rights of The Accused……………….p59
– ALCORTA, leaves jury with false impression
– NAPUE, not to knowingly use false testimony
– BRADY, the suppression by the prosecution of evidence
EXTRATERRITORIALITY …………………………………………………………………………………p. 62
– Sherman Act Applies to foreign conduct that was meant to produce and did produce a
substantial effect in the US to a jury: breach of a duty of fair representation
– US Courts should NOT refrain from reaching the merits of the case merely because the
conduct occurred aboard – dissent w/ reasonableness standard HARTFOR
– Touch and Concern test. ……….Presumption against extraterritoriality (sosa case) KIOBEL
Freedom of speech……………………………..……………….……………………………………………….………..p. 65
– First amendment
– Freedom of speech – Public official –– actual malice SULLIVAN
– Freedom of speech – Expressive conduct with intent to intimidate, incite violence BLACK
Equal protection – Race and Education…………….……………………………………………….………….p. 69
– Race & Education – Rejection of the “separate but equal” doctrine BROWN
o Remedy violation of the EPC
– Racial Discrimination test GRUTTER
Equal protection – Commercial and Gender discrimination……………………………….………….p. 73
– Commercial discrimination test WILLIAMSON
– Gender discrimination test MICHAEL
– Gender discrimination test and compensatory purpose HOGAN
2
INTRODUCTION
The U.S system is based on English common Law, it’s an adversary system.
– Ccommon Law: ruling in individual cases, establish precedent that is binding on lower
courts. The Supreme Court binds lower courts, permits judges to develop codified law
through interpretation of statutes, regulations in individual cases.
– system: Parties present case to neutral fact finder, judges do not play investigatory role,
neutral role.
– Stare Decisis: Court generally won’t overturn its own precedent.
Constitution


Supreme law of the United States
7 articles
27 Amendments – rarely amended
System of federalism: divided powers
Federal and state government
States retain significant sovereignty and authority (elected governor,legislature, court
system)
Federal government: only powers specified in the Constitution
Federalism: National government has limited, enumerated powers, states have considerable
sovereignty. Federal – national system which is limited to what the constitution specified. All
the rest are reserved to the states and people.
Authority is limited by the Constitution. Ex: Federal government hasn’t the power to
regulate all the criminal law.
Separation of Powers + Checks & Balances: Separation in 3 branches of powers. – each
branch has constitutional authority to check the actions of the others
Rights Protected by the Constitution:
Free speech
Freedom of assembly
Freedom from unreasonable search and seizures
Due process of law
Trial by jury
Self-incrimination guarantee
Assistance of counsel in criminal prosecutions
Article I – Legislative
Branch
Article II – Executive
Branch
Article III – Judicial
Branch
The legislative branch enacts the laws (Congress)
The executive branch executes the laws (President)
Judicial interprets the laws (Supreme Court)
3
Article IV
Article V.
Article VI,
Article VII
(1)
(2)
(3)
(7)
(8)
principally covers the duties of states
sets forth the procedural requirements for amending the
Constitution
the Supremacy Clause, establishes that the “Constitution and the
Laws of the United States which shall be made in Pursuant
specifies how the Constitution would come into force
Article I – Legislative Power
All Legislative power vested in the U.S Congress consisting of Senate + House of
Representatives (Bicameralism)
House membership proportional to state population, 2-year term
2 senators from each state, 6-year term; ½ of the Senate is elected every 2 years –
Senate has the power to impeach the President
Member of the House of Representative: elected from local district within the state in
proportion to his population
President: Head of the state and of the government. He points a cabinet but none of
them sits in Congress
Proposed Legislation must be passed by both Houses of Congress + signed by the
President before becoming law.
– President can sign or veto
– If president vetoes Congress can override with 2/3 majority in each house so the
proposed law can be enacted
Congress’s Powers:
– Approves the federal courts’ budget and appropriates money each year to found the
judiciary
– Tax / spend to pay debts, common defense, general welfare
– Borrow money on U.S credit
– Regulate interstate / foreign commerce: major power
– Coin / regulate money, establish standard of weighs/ measures
– Punish counterfeiting of U.S money / securities
– Regulate immigration and bankruptcy
– Establish post offices and post roads
– Control issuance of patents / copyrights
– Create tribunals inferior to Supreme Court
– Define and punish piracies/felonies committed on the high seas and offences against
the law of nations
– Declare war, grant letters of marque and reprisal, make rules concerning captures
on land & water
– Raise & support armies
– Provide and maintain navy
– Make rules for government, regulation of land and naval forces
– Provide for organizing, arming and discipling militia and for governing militia
employed in service of U.S
4

(10)
Exclusive power to pass laws to govern D.C, military enclaves
Makes all laws necessary and proper for carrying into execution these powers and
all other powers vested to U.S government by Constitution – Elastic Clause
– .
Limitations on States
States cannot:
– Enter into any treaty, alliance or confederation
– Grant letters of marque and reprisal
– Coin money or make their own currency used in payment of debts
– Tax imports or exports without the consent of Congress, except that may be
absolutely necessary for executing the state’s inspection laws.
•

How the district of Columbia is directed? D.C is controlled by the Congress, has passed
legislation under the “rule act”. It’s the one place in the U.S doesn’t operate like a state.
• The Bill of Rights (1791): corresponds to the 10 first amendments
Freedom of religion, speech, press & assembly, right to petition government
Right to bear arms
No obligation to quarter soldiers without consent, except pursuant to law in wartime
Right to be free from unreasonable searches and seizure; warrant requirement.
Article VI
10th Amendment
(1)
Supremacy clause: This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding
BUT The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
Article II – Executive Power
Executive Power vested in President
5
(2)
(3)
(1)
(2)
President’s powers:
– Commander in Chief
– Reprieves, Pardons for offenses against the U.S, except impeachment
– Make treaties with advice / consent of 2/3 Senate
– Appoint Ambassadors, Supreme Court Judges and others with advice / consent of
Senate
BUT Congress may vest appointment of inferior officers in President atone, in Courts or
in heads of Departments
– Make recess appointments
– Receive ambassadors and other public ministers
– Commission all officers of the United States
– Takes care that the laws are faithfully executed
– He points a cabinet – each member must be confirmed by the senate
– No role in the administration or budget of federal courts.
Attorney General:
– Chief Law Enforcement officer
– Heads US Department of Justice
– Administration of: FBI; Bureau of Alcohol, Tobacco, Firearms, Explosives; US Marshals
Service; and others.
– Authority to prosecute crimes and represent the government’s legal interests in civil
cases.
US Attorney (adjunct to AG):to help attorney general
– Chief prosecutor in 94 federal judicial districts
– Reports to AG and may be removed from office by the president
– Represent the government in criminal cases in federal courts and most civil suits
against the government
*** No role in administration or budgeting of federal courts
Article III – Judicial Powers
Judicial Power vested in Supreme Court and “such inferior Courts as the Congress may
from time to time ordain and establish “and judges have life tenure + salary protection
Federal court bases of jurisdiction
❖ Independent federal judiciary/ self-governing judiciary = fairness & equal justice
to all citizens
❖ Courts play no active role in enforcing the laws (no enforcement) – they interpret
the law by issuing judgement
❖ Legal disputes brought before courts by adversarial parties
❖ Federal judges: ruling on the constitutionality of laws (guardians of the
Constitution)
❖ Federal judges may serve for life. Only removed by treason or impeachment and
conviction by Congress for “Treason, Bribery, or other high Crimes and
Misdemeanors”
❖ Salaries of federal judges cannot be reduced by the president or Congress
Senate confirms federal judges – president nominates
6
House of Representatives can impeach, and judges can be convicted for treason, bribery,
or other crimes before the Senate
The Supreme The Supreme Court is the final authority. This jurisdiction is not mandatory.
Court
A lot of things will go unresolved, when Supreme Court hear cases it’s
sometimes when there is a split. ‫منقسم‬
9 Justices (odd number) -> Majority opinion – Chief Justice of the US + 8
associated justices
Sits “en banc” meaning all together
Federal Court, State Law -> SC is on the top
Federal Courts
12 Circuits Courts in total
Federal Judges: interpret and issue ruling on the constitutionality of laws
Federal courts = guardians of the constitution and protect the rights and
liberties provided by the US C*
The C* protects the integrity of the judicial in 2 ways (Art. III):
➢ Federal judges may serve for their whole life – may only be removed
through impeachment and conviction by Congress for “treason,
bribery or other crimes and misdemeanors”
➢ Neither the President nor Congress can reduce the salary of a federal
judge
– 12 regional circuits with US Court of Appeals
– Hears appeals from district courts located within circuit (and from
administrative agencies and specialized cases)
– Litigants have right to appeal in every federal case
– One or more parties file appeal; has to be timely; three-judge panel
reviews decision
– Usually accepts factual findings of lower court but can remand to trial
or admin court for further development of record (unnecessary in most
cases)
– Affirms or reverses lower court decision
– Important cases: Court may vote to sit “en banc” to review the decision
of the three of judge panel. All appellate judges in the circuit come
together to rehear the case. Full Court affirms or reverses the panel.
– For the most part, federal court jurisdictions only hear cases in which
the United States is a party, cases involving violations of the
Constitution or federal law, crimes on federal land, and bankruptcy
cases. Federal courts also hear cases based on state law that involve
parties from different states.
State Courts
– each state has its own court system
– Federal court decisions not binding on state courts except Supreme Court
decisions on federal issues
– State Courts decisions not binding on other states
– State highest court decision binding on federal court applying state law.
7
I. ROLE OF THE US COURTS: JUDICIAL REVIEW
MARBURY v. MADISON – 1803 – In slides
Background
– In the final days of his presidency, John Adams appointed a large number of Justices
whose commissions were approved by the Senate, signed by the President, affixed with
the official seal of the government BUT the commissions were not delivered. Madison,
Jefferson’s Secretary of State, refused to deliver the paper.
– Marbury, did not receive his commissions before Adams left the office
– Marbury brought an original action for writ of mandamus (= mechanism that gives the
power to a Court to ask to a government official to do something) directly to the U.S.
Supreme Court seeking an order requiring Madison to deliver the commission.
– Marbury relied on Section 13 of the Judiciary Act of 1789 as grounds for the Supreme
Court to issue the writ of mandamus with original jurisdiction.
Issue: 1. Does Plaintiff has a right to the commission he demands? YES
2. Does the Law provide a remedy? YES, The President’s choice is made at the time the
commission is signed and sealed; at this point the commission becomes his property.
3. Can the Supreme Court provide the remedy Marbury is entitled to? NO
1. Marbury’s appointment was complete. Senate confirmed and President signed the
commission. The Law said that the President has the control about appointments.
2. If an individual’s legal right is violated, the Law provides a remedy, it’s the
commission. Court distinguishes between intrusions on discretionary functions of
executive (unreviewable) and duty established by Law (reviewable)
3. A writ of mandamus can issue against Secretary of State BUT Supreme Court lacks
power to issue writ in this. Under the Judiciary act, Congress has interpreted the
section 13. Marshall has interpreted the concept of the original jurisdiction (acting like
trial court). Art. III “The SC shall have original jurisdiction. In all other cases the SC
shall have appellate jurisdiction.” So, the SC has the power to writ the mandamus.
Mandamus is not listed within the SC original jurisdiction
The Supreme Court has since this case exclusive original jurisdiction.
this provision directly conflicts with Article III of the Constitution
The Act is unconstitutional because it seeks to expand the Supreme Court’s original jurisdiction
and therefore jurisdiction over Marbury’s claim cannot be exercised.
Marshall’s opinion establishes:
– The Constitution is superior to the Federal Statutes
– Judges are the final arbiters on the Constitutionally of law.
Determine whether the Court has jurisdiction to issue writ of mandamus?
8
Act of Congress conflicting with the Constitution:
– Section 13 of the Judiciary Act of 1798 authorizes the Supreme Court to issue writ of
mandamus. it is unconstitutional
– However, the writ cannot be issued by the US Supreme Court due to the limited
enumeration of judiciary power under Article III Section 2 §2 of the Constitution.
→ A relevant portion of Judiciary Act unconstitutional
Analysis:
The Court is on his early stages: this is an opportunity for the Judicial branch to say that they
have the “last word” on the constitutionality of the law passed by the Congress.
KEY ISSUES:
1. Statement of section 13 of the 1789 Judiciary Act could have been taken out of context.
Supreme Court can issue writ of mandamus; that’s all section 13 says. Marshall
misrepresents section 13 only to create the authority to strike it down. Marshall could
have said that section 13 does not apply and therefore relief is denied.
2. Presentation of Article III, section 2, paragraph 2. Court rejects arguments that Congress
has authority to “change” Supreme Court’s grant of original jurisdiction as set forth in
the Constitution. Re-Writes Article III, Sec. 2, par. 2: “The Supreme Court’s original
jurisdiction can only be exercised in all Cases affecting Ambassadors, other Public
Ministers and Consuls, and those in which a State shall be a party.”
3. Legislatives powers are subordinate to the Constitution
4. Only the Courts have final say as to whether a law is authorized under the Constitution
rule: the supreme court has the power to declare that an act of congress invalid should it conflict
with the constitution.
**
IMMIGRATION NATURALIZATION SERVICE (INS) v. CHADHA – 1983
Background:
– Article I require that every Bill passed by both the Senate and the House of
Representatives and the presented to the President of the U.S for approval. If the
President disapproves, the Bill may be repassed by 2/3 of the Senate and the House of
Representatives.
– In one section of the Immigration and Nationality Act, Congress authorized either House
of Representative and Senate to invalidate and suspend deportation of the U.S attorney
general.
– Chadha remained in the country after his non-immigrant visa expired and faced
deportation
– Immigration judge ruled in Chadha’s favor.
9

Attorney General notified Congress, which passed a resolution opposing granting of
permanent residence to Chadha and other aliens by Court of Appeals. ‫يعارض قرار منح االقامه‬
Issue: Is the House of Representatives able to invalidate the Immigration Judges’ decision and
deport Chadha? Did the Immigration and Nationality Act, which allowed a one-house veto of
executive actions, violate the separation of powers doctrine? ‫هل لها الحق يف ابطال الحكم وترحيله‬
–Article I of the Constitution requires that all legislation be presented to the President before
becoming law. The Framers carefully crafted this requirement into the Constitution. Additionally,
the Framers also required bicameralism in the enactment of any law—a law could not be passed
without gaining support from a majority of both houses. The Great Compromise established this
provision, requiring the approval of both houses to accommodate representation concerns by
smaller states. In order for these constitutional requirements of legislation under Article I to
apply, §244(c)(2) must be a proper legislative provision. Section 244(c)(2) is a proper legislative
provision since it altered the legal rights, duties and relations of persons, including the Attorney
General, executive branch officials, and Chadha. This extensive type of action is historically only
permitted by a legislative act of Congress. Additionally, there are specific enumerated instances
in the Constitution granting the House of Representatives unilateral power to act. A unilateral
veto of executive action is not included in these powers. The Constitution’s silence in this area
means that the House of Representatives cannot unilaterally act to defeat an executive decision.
Thus, §244(c)(2) of the INA is unconstitutional. The decision of the court of appeals is affirmed.
Court’s willingness to exercise judicial review over the Congress:
– The bicameralism requirement was formulated in order to prevent legislative
‫ر‬
‫ر‬
encroachment. ‫يع‬
‫تم صياغة المتطلبي التشيعيي من أجل منع التعدي التش ي‬.
– When the Framers intended to authorize Congress to exercise power outside of the
bicameral and presentment principles, it provided alternate procedures explicitly.
o The present action is not part of these alternative procedures.
– Holding: The Court held that the particular section of the Act in question did violate the
Constitution. Justice Burger concluded that even though the Act would have enhanced
governmental efficiency, it violated the “explicit constitutional standards” regarding
lawmaking and congressional authority.
Congress would not have passed §244(c) (1-3) without §244(a)(1). The INA must be considered
as a whole. The majority cannot invalidate one provision without invalidating the INA in its
entirety244§
Ù‹
244 ‫ال يمكن لألغلبية إبطال رشط واحد دون إبطال قانون الهجرة والجنسية بالكامل وفقا للفقرة‬
Allowing the House to assume this role would create a state of unchecked power for Congress—
a system of governmental tyranny the Framers sought to avoid. Congress
rule: where the house takes actions that have the purpose and effect of altering legal rights,
duties, or relations of persons outside of the legislative branch, bicameralism and presentment
are required. ‫ أو‬،‫ أو الواجبات‬،‫ عندما يتخذ مجلس النواب إجراءات يكون لها غرض وأثر تغيي الحقوق القانونية‬:‫القاعدة‬
‫ر‬
‫ يلزم وجود مجلسي هما التقديم والتقديم‬،‫يع‬
‫عالقات األشخاص خارج الفرع التش ي‬.
10
II. JUDICIAL REVIEW OF STATE COURTS DECISIONS
MARTIN v. HUNTER LESSEE – 1816
Background:
– Treaties ending war between US and GB protected British’s property in US.
– Virginia law allowed to confiscate British’s lands, so they confiscate Martin’s (British) land
and passed it to a Virginian, David Hunter.
Procedural History:
– US SC annulled VCA decision and remanded the case with instructions to enter judgment
for P.
– Virginia Court of Appeals refused to obey the U.S. SC, so Martin appealed again
Issue: Does the Supreme Court have appellate jurisdiction over state decision involving federal
law? ‫ال؟‬
‫ هل لدى المحكمة العليا سلطة استئنافية عىل قرار الدولة الذي يشمل القانون الفيدر ي‬:‫القضية‬
Whether the United States Supreme Court has appellate review in state court cases.
Appellate power over State Court:
– Appellate power is not limited by the terms of the article III of the Constitution. – ‫ال تقترص‬
‫سلطة االستئناف عىل أحكام المادة الثالثة من الدستور‬.
– The Judiciary Act §25 authorizes the US Supreme Court to re-examined a final judgment
of the highest court of law of a state in which is drawn a question of the validity of a
treaty or statute upon writ of error (= writ issued by an appellate court to the court for
examination of errors).
State Court are bound by Federal law: ‫ملزم‬
– State Court should not only decide according to the laws and constitutions of their state,
but also according to the laws, constitution and treaties of the United Sates.
Supremacy clause – Analysis
If there were no Judiciary Act, would the result in Martin have been different?
No, the Supremacy clauses means that a treaty applies to every court: federal or State court.
A treaty is a US representation over the world: the US needs a single view on the meaning of
the treaty. This is also true for the Constitution as well as all matters on federal Law.
Uniformity: We can’t have the Constitution interpreted differently in different places.
The United States Supreme Court has authority to review the decision of the Virginia state
courts.
Rule: Under Article III of the United States Constitution, the United States Supreme Court has
authority to exercise appellate review of state court decisions.
11
Supremacy clause – Analysis
If there were no Judiciary Act, would the result in Martin have been different?
No, the Supremacy clauses means that a treaty applies to every court: federal or State court. A
treaty is a US representation over the world: the US needs a single view on the meaning of the
treaty. This is also true for the Constitution as well as all matters on federal Law.
Rationale
• The Constitution vests the whole judicial power, which extends to all cases in the
Constitution. There is also a clear distinction between cases. The jurisdiction is given by the
cases, not by jurisdiction, when considering the third article of the Constitution. The
Constitution gives specific appellate jurisdiction to the Supreme Court, making it extraordinary
from state tribunals.
Notes:
o This review of state decision is important for consistency: “public mischiefs” if one thing can
mean
something in NY and another thing in Virginia (for the uniformity, need one interpretation from
to another
state)
o Review Federal Question à constitutional matter: not easy to find the scope because there
always a way to find a
link to it so the court can decide the case she wants to review.
ð What is a federal issue?
ð US supreme court: Constitution of the US was design and the benefit for the benefit of all the
people in the
United States (answer: les civils rights (happiness, etc.)
ð Context: 1816: south v northern states – slavery/ civil war (1861) – historical implication –
leads the country to have a civil war. The union/northern state wanted the civil war –3 rules
reduces states’ rights. 13th amendment (ends slavery), 15th amendment, 14th amendment
(equal protection clause)
ð Federal gov. v. state = a lot of tensions w/ states’ rights
Rule: state courts may not do anything that violates the federal law (constitution, statutes and
treaties) if it does so, federal courts can trump state courts
**
BUSH v. GORE – 2000 – in slides
Background:
– Presidential voting of 2000, in Florida State: an automatic recall reduced the 1784 votes,
but Bush still as the winner.
– Gore brought a complaint and Florida Supreme Court ordered manual recounts.
12

Bush filed in the Supreme Court an emergency application to stay (=arrêter) the mandate
of the Florida Supreme Court.
– Facts :The United States presidential election of 2000 between George W. Bush
(Petitioner) and Albert Gore (Respondent) was one of the closest in American history.
After it was clear that Gore won the popular vote, the outcome turned on the State of
Florida and its twenty-five electoral votes to determine the outcome of the electoral vote.
After the national deadline for counting votes passed with no clear winner of the Florida
electoral vote announced, Gore relied on a Florida statute and requested a manual
recount of the votes from a Florida state trial court. The statute provided for “contest” of
election results when there was “receipt of a number of illegal votes or rejection of a
number of legal votes sufficient to change or place in doubt the result of the election.”
The trial court held that Gore failed to prove a “reasonable probability” that the election
would have turned out differently if not for problems counting ballots. The Supreme Court
of Florida reversed, however, noting that the trial court used the wrong standard in
requiring Gore to demonstrate a “reasonable probability” that the election would have
been decided differently. Instead, the Florida Supreme Court said that the statute
required only a showing of “receipt of a number of illegal votes or rejection of a number
of legal votes sufficient to change or place in doubt the result of the election.” The court
held that Gore met this standard and ordered a manual recount of votes which included
a net gain of legal votes for Gore identified by Palm Beach County and Miami-Dade County
in earlier manual recounts following the election. Shortly after the recount began, Bush
requested that the United States Supreme Court grant a stay of the recount and grant
certiorari to consider the case. The Supreme Court granted a stay and certiorari.
Issue: Does the use of standard fewer manual recounts violate the Equal Protection and Due
Process Clauses?
Whether the use of standard fewer manual recounts of votes violates the Equal Protection
‫ما إذا كان استخدام ر‬
Clause of the Fourteenth Amendment? ‫اليشيحات اليدوية القياسية لألصوات ينتهك فقرة‬
‫الحماية المتساوية ف التعديل الرابع ر‬. Yes
‫عش‬
‫ي‬
Equal Protection Clause – 14th Amendment: “No State shall deny to any person within its
‫ التعديل الرابع ر‬- ‫”بند الحماية المتساوية‬.
jurisdiction.” ‫ “ال يجوز ألية دولة أن تنكر عىل أي شخص يخضع لواليتها القضائية‬:‫عش‬
Electoral College: 358 Electors, 100 Congress: HR + Senate. The Electoral college reflects the
tension between the States and the Federal Government.
State law & Constitutional issue:
– The recount mechanisms implemented by the lower court do not satisfy the minimum
requirement for non-arbitrary treatment of voters necessary to secure the fundamental
rights.
– The SC is concerned that Florida has just not providing Uniformity.
– What remedy? Why not order a recount with proper procedures? Statute 3 USC § 5: Date
required by the Constitution for closing the votes. That is in the Constitution, Congress
has chosen the day, December 18th.
Rationale
13
• Florida wants to consider the “intent of the voter”. This is an abstract principle and
should be more specific to ensure equal application (14th Amendment – equal protection
clause). The votes do not comply with equal protection as there are even differences
between counties as what counts as a legitimate vote. Statewide standards for
determining what is a legal vote, practical procedures to implement them and orderly
judicial review are necessary.
rule: normally a state cannot appeal a supreme court decision if the case is related to state law.
however, this is possible if there is a constitutional issue. (14th amendment)
given the specific issues of this case, the supreme court established that this is not binding
precedent.‫ أقرت المحكمة العليا أن هذه ليست سابقة ملزمة‬،‫ وبالنظر إل القضايا المحددة يف هذه القضية‬.
•
III. LIMITS OF JUDICIAL REVIEW: THE POLITICAL QUESTION
The Political Question Doctrine: Federal courts will refuse to hear a case if they find that
it presents a political question. This doctrine refers to the idea that an issue is so politically
charged that federal courts, which are typically viewed as the apolitical branch of
government, should not hear the issue. The doctrine is also referred to as the justiciability
doctrine or the non-justiciability doctrine.
BAKER v. CARR – 1962 – In slides 3
Background:
– Tennessee State Constitution required legislative districts for Tennessee state legislature
be redrawn every ten years according to the federal census, to provide for districts of
substantially equal population.
– Baker’s complaint alleged that the Tennessee legislature had not redrawn its legislative
districts since 1901, in violation of the Tennessee State Constitution.
– Baker, who lived in an urban part of the state, claimed the state demography had changed
diluting his vote in violation of the Equal Protection Clause of the 14th Amendment.
– The State of Tennessee argued that legislative districting issues were not judicial
questions but political questions, and were thus not capable of being decided by the
courts based on the Constitution’s prohibition on the Court’s deciding political
questions.
– Class action compliant was brought under 42 U.S.C. Sec. 1983 that authorizes a claim
against state officials for violation of constitutional rights and under 42 U.S.C. Sec. 1988
to allow attorney fees award to successful plaintiff
– was a three judges federal panel.
holding and Issue: Does an equal protection challenge to malapportionment of state
legislatures qualify as a non-justiciable political question? ‫متساو يف الحماية تجاه عدم‬
‫تحد‬
ٍ ‫هل هناك‬
ٍ
ُ
‫ر‬
‫للتقاض؟‬
‫ والذي يعد مسألة سياسية غي قابلة‬،‫ ?تناسب الهيئات التشيعية يف الوالية‬NO
‫ي‬
14
Do federal courts have jurisdiction to hear a constitutional challenge to a legislative
apportionment (=répartition)?
(i)
The case refers to a claim under federal law (=EPC). Baker has the right to bring the
case under federal court.
(ii)
This case was justiciable and did not present a political question. The case did not
present an issue to be decided by another branch of the government. Looking at
separation of power & prudential concerns.
District Court – dismissed the case because of lack of subject matter jurisdiction and for failure
to state a claim upon which relief can be granted because the claim concerned a matter not
suitable for judicial inquiry…the claim was not justiciable.
Supreme court
– Regarding dismissal for lack of subject matter jurisdiction SC says that
• District Court was wrong
• a not unsubstantial claim arises under Constitution
• claim fits within 28 USC Sec 1343, Congress’s authorization to the district court to
hear case arising under Federal Law
• claims fits within 42 USC Sec. 1983 and therefore arises under Federal Law
– Regarding dismissal for Failure to State a Claim SC says that
• Reversed and remanded for further proceedings consistent with the opinion
• Case not within Political Question Doctrine
Why Case is Not Within Political Question Doctrine:
– Merely because a political right is involved doesn’t invoke political question doctrine
– Case is not typical one to invoke Guaranty clause, Constitution, Art. IV, sec. 4
Guaranty Clause:
– Art. iV, sec.4: US shall guarantee to every State a Republican Form of government
– Not applicable: case involves federal judiciary’s relationship to the State, not a
coordinate branch of government
The limitation of the political question:
– Federal Courts can decline to see a case if political questions have been considered
unsuitable for judicial decision
– The political question doctrine treats certain issues as non-justiciable on the ground that
the Constitution assigns them to one of the political branches of government for final
decision.
Political Question Doctrine TEST
A ruling stating that a matter in controversy is a political question is a statement by which the
Federal Court declines to rule in a case because:
15
1. U.S. Constitution has committed decision-making on this subject to a coordinate
branch of the federal government; or
2. There are inadequate standards for the court to apply; or
3. The court feels it is prudent not to interfere
Standards for political questions: TEST
1. Textually demonstrable constitutional commitment of the issue to coordinate political
department co-equal with the Court (yet, States are an important part of our legal fabric
and Art. IV of the Constitution acknowledges this)
2. Lack of judicially discoverable and manageable standards for resolving issue (yet, now
we can say that having federal courts’ drawing maps is manageable in any way)
3. Can’t be resolve d without initial policy determination that is nonjudicial) this aspect of
the test is probably met as a determination that there is a violation of the Constitution is
a judicial determination)
4. Inability to resolve without showing respect due to coordinate branch of government
5. Unusual need for unquestioning adherence to political decision already made
6. Potential for embarrassment due to multiple pronouncements by various departments
on issue
1,2,6 (most important)
rule: courts will not make a determination on a situation that the constitution assigns to one of
the political branches of the government.
the fact that it is called political question does not mean that the court cannot hear political
matters. the court can hear those, however not on the maters that would be better resolved by
another branch of the government.
**
NIXON v. US – 1993 – in slides
Background
– Federal judge Walter Nixon was convicted of committing perjury (=faux serment) but
refused to resign from office even after being incarcerated.
– U.S. House of Representatives subsequently impeached Nixon. Matter was referred to
the U.S. Senate for a vote on Nixon’s removal: senate voted more than the two-thirds
majority required.
– Nixon contended that this vote did not meet the constitutional requirement of Art. I, § 3,
cl. 9, Constitution – Senate shall have the sole Power to try all impeachments.
Impeachment Rule XI allowed committee of Senators, not full Senate, to receive evidence
and testimony. Nixon claims Senate did not try him
Framers considered but did not give SC power to try impeachments?
16

They did not want to give this power to a court is not elected
Gave to Senate because representative of people. Under Constitution, the Senate has
“sole” authority to try impeachments. Constitution does not define “try”, no indication
that must be same as court trial
Separate proceedings: why the judiciary and SC are particular, and they are not choosing to have
role in impeachment? because
1) 1/ Impeachment (House/Senate)
2/ Criminal Trial (Court)
If the Court is also involved in the impeachment process, the Senate is not “sole”.
2) Checks & Balances: Impeachment is the only check legislature without judiciary.
– The system of Checks & Balances is used to keep the government from getting too
powerful in one branch. For instance, the executive branch can veto bills from the
legislative branch, but the legislative branch can override the veto.
Issue: Did Nixon’s impeachment violate art. 1 of the Constitution?
Holding: This is a question that belongs to the Senate: clear attribution of political question—
Rationale:
– no clear judicial standards.
– No limit on the word “try” in art. 1 (3)(6) of the Constitution.
– The Senate alone (“sole”) has authority in cases of impeachment.
– The power lies with the Senate and this method has been specifically chosen by the
Framers.
– Judicial review of the Senate’s trial would not be possible because of bias and checks and
balances.
Impeachment & Political question
Courts cannot review the impeachment because the case involves a political question:
– Textually demonstrable constitutional commitment of impeachment to the legislature
(“sole Senate”)
– Lack of discoverable standards for judicial: Impeachment Rule IX: allowed committee of
Senators, not full Senate, to receive evidence and testimony
– ” Because of the word “sole” it is clear that the judicial branch was not to be included.
Furthermore, because the word “try” was originally understood to include fact-finding
committees, there was a textually demonstrable commitment to give broad discretion to
the Senate in impeachments.
rule: courts cannot get involved when the constitution has granted jurisdiction to prescribe to
another co-equal branch of the government. that is a political question.
Case comparison – Political Question Doctrine
Baker vs. Carr and Nixon vs. US
1. Textually demonstrable constitutional commitment to political branch:
17

In Baker, no. Restricting is state government matter (justiciable)
In Nixon, “sole” authority to try impeachments to Senate (political question) – merits of
case. The word “try” does not place textual limits on senate’s authority.
2. Judicially manageable standards:
– In Baker, yes. Applicability of Equal Protection Clause to redistricting (justiciable)
– In Nixon, no. Impeachment trial clause is vague; challenge for judicial review and
interpretation.
(General note: In Baker, good for US Supreme Court to check on state gov. action; but in
Nixon, Legislature needs to be able to check on Judiciary).
Bush vs. Gore, Baker vs. Carr, Nixon vs. US
❖ Bush vs. Gore and Baker vs. Carr: Equal protection cases and 14th Amendment. Direct link
to constitutional provision and therefore justiciability.
❖ Nixon vs. US: Consistent approach but to different case. Two key distinctions with cases
above: – clear textual grant of authority by constitution to Senate on impeachment trials
(“sole” and “try”). In bush vs. gore and Baker vs. Carr, there is no textual grant of authority
by the Const. to another branch on redistricting and recounts (state matters).
– legislature needs to be able to check on judiciary in some way (only by impeachment).
Legislature is representative of people. In the cases above, the check is on state action.
***
VI. THE COURT SYSTEM: BIG PICTURE
Federal Courts:
– Supreme Court (9 Justices): Article III of the Constitution establishes a Supreme Court.
– Courts of Appeals: 12 Circuit Courts of Appeal (1st-11th Circuit plus D.C. Circuit) plus
Federal Circuit

Lower Courts:
o Under Articles 1 and 3 of the Constitution Congress can create lower courts.
o Congress created Federal District Courts, Federal Circuit Courts.
Courts of limited jurisdiction: These Federal Courts are courts of limited jurisdictions. Article 3
defines these jurisdictions.
Jurisdiction over the Article 3:
– Statutes of the Congress can give the Federal District Court the power to hear cases that
falls out the article III.
– Even though Federal Courts are courts of limited jurisdiction they share a lot of that
jurisdictions with the State courts.
– However, if the Congress says that the case must be brought in Federal Court that means
that the case can only be brought in Federal Court.
The Appeal procedure:
18

US District Court: the case would be generally brought to this court because the original
jurisdiction of the Supreme Court is limited.
o You need a final judgment to go to the US Court of Appeals.
– US Court of Appeals:
Exception: appeals involving patent law are heard by Federal Court of Appeals for the 3rd Circuit.

Supreme Court: from the Court of Appeals to the Supreme Court:
o The Supreme Court has the exclusive discretion to heard or not about this case.
You have to ask the Court. File a petition for a writ of certiorari.
Writ of certiorari is granted in limited circumstances:
– Conflict in the circuit courts
– State court has decided federal question that conflicts with decision of another state
court of last resort or U.S. court of appeals
– State Court or a US Court of Appeals decided an important question of Federal Law that
has not been settled by the Supreme Court or conflicts with a decision of the Supreme
Court.
I.
Jurisdiction – Federal Question – 28 U.S.C. § 1331
28 U.S.C. § 1331
“District Courts shall have original jurisdiction of all civil actions arising under the Constitution,
laws or treaties of the U.S.”
Whether a case arises under federal question:
– Look if the case involves the Constitution, Federal Statutes or Treaty.
– Rule: We have to look at the face of Plaintiff’s complaint (not the defendant).
o If every time somebody brings a case under state law and files in state
court the defendant can shape the jurisdiction with a defense based on a
federal question: then every case would be on federal Court.
28 U.S.C § 1331 : The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws or treaties of the United States
➢ General grant of Federal question jurisdiction
➢ Laws of the U.S : statutes, executive orders, administrative regulations, federal common
law.
Supreme court has construed the term “arising under” Article III § 2; more narrowly under §
1331
– Arising under : means any case in which a federal question in an “ingredient of the
original cause” Osborn v. Bank of the United States, 1824
– § 1331 : “ arising under” means any case where there is a substantial federal
question that is central to the claim and part of the plaintiff’s well-pleaded
complaint.
19
Well-pleaded complaint : we are looking only to the plaintiff claim, plaintiff’s claim necessarily
requires proof of federal law.
– Not defendant’s anticipated or actual defense
– Not defendant’s anticipated or actual counterclaim
Exception : plaintiff may not defeat removal by omitting necessary federal questions in a
complaint. Complete preemption : congress has so completely legislated an area that no statelaw claim available.
Allegations involving Federal Law

Federal question established if claim alleges violation of federal law
Exception : Federal law forms basis for federal SMJ as long as not patently frivolous
or contrived. ( if it is clearly not a patent case).
Looks like a State Law Claim : but involved Significant Federal Issue

II.
Case may “arise under” federal law if state-law claim implicates significant federal
issues
Jurisdiction over state law claim if federal issue is :
✓ Necessarily raised
✓ Actually disputed
✓ Substantial
✓ Capable of resolution in federal court without disrupting the balance test
Jurisdiction – Diversity of Citizenship – 28 U.S.C. § 1332
Diversity of citizenship and jurisdiction based on diversity of citizenship:
Complete diversity gives Federal Court original jurisdiction – if:
– The controversy shall exceed $75,000 – not including interests or costs.
– The controversy shall be between:
o Citizens of different states
o U.S. citizen and foreign citizen
o Citizens of different states and in which foreign citizens are additional
parties
o Foreign state is plaintiff and citizen of a State or of different States

If you have plaintiffs from Virginia and Defendants from Virginia = no diversity.

Statutory exception to complete diversity are OK:
– 28 U.S.C § 1335 – Interpleader Act : it is a situation hold a piece of property and
don’t know to give it to.
20

28 U.S.C § 1369 – Multiparty, Multiforum Jurisdiction Act :
Class Action Fairness Act of 2005
“a corporation shall be deemed to be a citizen of every State and foreign state by which it has
been incorporated and of the state where it has its principal place of business “
Corporations:
– A corporation can be a citizen of two places:
– Corporation organized under the law of XX and Principal place of business (PPB=the
headquarters) XX.
Example : Corporate Citizenship
•
•
Y industries is a company incorporated in Delaware.
It has offices in 15 U.S states, including an office and warehouse in Sacremento,
California, which employs 100 Workers.
• Its headquarters are in St Louis Missouri.
 So the nerve center is in Missouri
Test: To determine whether a case based on diversity can be brought on Federal Court:
– Need to resolve the citizenship diversity
– Determine for all the parties and see if there is a match between a P side and the D
side.
Complete diversity:
– P (Texas) v. D. (New York)
– P (Texas) v. D 1 (New York), D2 (Delaware)
– P 1(Texas), P2 (Arkansas) v. D1 (New York), D2 (Delaware).
– P 1 (NY) – D1 (Virginia) D2 (HQ Michigan – PPB Virginia)
No diversity:
– P (Texas) v. D (Texas)
– P (Texas) v. D1 (Arkansas), D2 (Texas)
– P1 (Texas), P2 (Louisiana) v. D. (Texas)
– P1 (Texas), P2 (Louisiana) v. D1 (New York), D2 (Louisiana)
Other jurisdictional grounds & Exclusive jurisdictions:
– § 1333: Admiralty (exclusive jurisdiction)
– § 1330: Actions against foreign states
– § 1343: Civil rights
– § 1345: U.S. as Plaintiff
– §1346: U.S. as Defendant
– 18 U.S.C. § 3231: Criminal (exclusive jurisdiction)
21
State crimes a brought in state courts and federal crime are only brought in Federal Court.
The transfer is not possible.
Foreign Persons & Corporations
Alien : étranger
Diversity jurisdiction does not permit suit by alien against another alien unless there are diverse
U.S citizens on both sides

P1 (China); P2 (Delaware) v. D1 (Mexico) = Unacceptable.
P1 (China); P2 (Delaware) v. D1 (Mexico); D2 (Maryland) = Acceptable
• U.S Citizen with dual nationality generally considered U.S citizen, not alien
– But if person domiciled abroad, not citizen of any state
• Corporation with U.S and foreign citizenship generally counts as both.
Ex: Plaintiff (China) v. D. Corp : Inc: India PPB: Texas : No diversity because you have foreign
citizens on both of the v. and only U.S defendant one side.
Plaintiff Corp v. Defendant Corp
Inc: China
Inc: India
PPB: Nevada
PPB: Texas
 No diversity -> Because China/ India and Nevada/ Texas defeat diversity. It does not
matter that India differs from China considered as the same.
 You have always to look at Inc + PPB for corporations, and you are citizen of both.
 If you have alien both sides on the v. you need an American citizenship.
Congress clarified everything in 2009, Incorporation is the citizen in any state.
Substantive Law In Diversity Cases
•
Federal court hearing state law claims on basis of diversity applies substantive law of the
state where it sits
• Federal court generally applies state’s procedural rules that might “ be outcome
determinative”
– E.g.: Federal court applies state choice of law rules
– E.g.: Federal court applies state statute of limitation
BUT Federal court applies Federal Rules of Civil Procedure – regardless of whether they can be
classified as “outcome determinative”.
Example
22
III.
P (Maryland) is driving his car in DC , Defendant (Virginia) hits Plaintiff’s car, causing
damage to the car and personal injury to Plaintiff.
P files suit in federal court in Maryland for negligence (state law tort claim)
District court applies Maryland Law to decide claim
Maryland, in turn, applies the “ law of place of injury” in tort cases
So, district court will apply D.C law to resolve claim.
Counter Claim
Rule: In case of counter claim we still look at the Plaintiff complaint.
Examples – Counter claim:
– P v. D in federal court based on federal question;
– D brings a state law counterclaim against P arising out of the facts at issue. Federal
court has jurisdiction over D’s state law counterclaim.
– P v. D in federal court in diversity and $100,000 in issue; D brings a state law
counterclaim against P for $10,000. Federal court has jurisdiction over D’s counterclaim
even though it’s less than $75,000
IV.
Removal Statute – 28USC §1441
Removal: Situation in which we could have a case filed in state court, and this case will be send
to Federal court
Justification: let a defendant who could be biased (in a state court) to remove a case to fed court.
• 28 U.S.C § 1441 (a) : Defendant can remove action from state court to federal court
• Case must be removed to federal district that corresponds with location of state court.
• 28.U.S.C § 1441 (b) : If jurisdiction based solely on diversity, case cannot be removed if
any defendant is citizen of state where case pending. In those circumstances, the case
cannot be remove.
• The plaintiff has the choice to sue.
Some states like Texas and California have more than one district, the defendant has to be careful
which one as to be remove to. The defendant can remove any cases on Subject matter
jurisdiction.
Procedure for removal
•
28 U.S.C § 1446 :
– 30 days after receiving notice of complaint that provides ground for removal
– Grounds for removal = SMJ (Federal Question, Diversity)
– All defendants must consent to removal.
23
Ex: P v. D1
Plaintiff files another complaint and add D2
Need consent of all defendants
Removal give an opportunity to D to go to Federal Court + only diversity. Removal just allow
the D to change the court to state from Federal. All defendants must consent to removal. They
have 30 days to cite consent. Removal is subject to time restrictions and following removal
procedure. If removal is improper case is remanded.
Note: Can’t remove in diversity case if defendant is citizen of State where lawsuit was filed.
Example – Removal:
– P. TX and D MISS
– Plaintiff sues D in Texas state court.
– The D from Mississippi can say that there is complete diversity and that he wants to
remove this case to the Federal Court.
– The defendant can remove the case to Federal Court– within 30 days (if several
defendant they all have to agree).
However:
– D2 – the car company organized under the law of Delaware and PPB in Michigan
– D3- passenger in Brian’s car from TX
→ The case cannot be removed
Strategy for the plaintiff:
Plaintiff wants to keep the case in State Court (usually the case) his lawyers will work hard to find
a TX defendant and to keep the case in State court.
Non-removal: A defendant from the state where the case is brought.
– Any defendant: Under the removal statute if the case is brought in state court and if ANY
Defendant (from all the defendant) is a citizen from the state where the case is brought,
the Defendant cannot remove the case.
– One defendant from this state is enough to apply this rule. All Defendants will be stuck.
V.
Supplemental Jurisdiction – 28 USC § 1367:
Supplemental Jurisdiction is codified by 28 U.S.C § 1367: Supplemental jurisdiction over claims
so related to those within court’s original jurisdiction that they “ form part of the same case or
controversy under Article III of the U.S constitution”.

Article III for federal question requires: Ingredient
Valid basis Diversity requires: Minimal
24
It’s a supplement, an additional to the original jurisdiction. The reason that the statute exists
because it is not efficient, they are essentially the same case of controversy.
Supplemental jurisdiction:
– The plaintiff has pleaded a Federal question and associated with the federal question is a
possible state law violation.
– If the state law claim is one that arises out of the same facts as the federal claim, then the
state law claim would be supplemental to the federal law claim even though the court
would lack the subject-matter jurisdiction to hear the additional claims independently.
Justification: If we didn’t have such a rule we would have two courts looking at the same facts. It
doesn’t make sense; it’s a waste of resources.
Prohibition: You cannot use supplemental jurisdiction as a way to overcome the complete
diversity test.
>Example – Plurality of Defendants:
– P from Virginia suing a Texas D1.
– P has sued under Federal Law.
– D2 who is a citizen of NY.
– D2 is sued under state law.
The Federal Court has jurisdiction on D2 issue because it is supplemental to the D1. The state
claim is supplemental to the federal claim.
>Example – Third party:
– Plaintiff from Texas and sues D from Mississippi (>75) and the claim arises for a car
accident.
– Third party defendant from Texas: the truck that hit D that caused the accident.
Under the supplemental jurisdiction rules: the Federal court will have supplemental jurisdiction.
Even if P do not sues TPD directly.
>Example – Lack of subject matter jurisdiction:
– P (Texas) wants to sue TPD (Texas) directly TPD become D2
– There is no diversity because D2 is from Texas: lack of subject matter jurisdiction.
NB:
– Fed Court sitting in diversity apply STATE LAW
– Plaintiff can elect to file in federal court but often prefers state court
Exceptions in Diversity Cases

In general, no supplemental jurisdiction over P’s claims against certain parties of
court’s original jurisdiction solely based on diversity and added parties not diverse
from Plaintiff.
25
Discretion to exercise supplemental Jurisdiction p120

28 U.S.C § 1367 ©: Court may decline to exercise supplemental jurisdiction if :
Novel or complex issue of State law
State law claim predominates over federal claims
District Court has dismissed the federal claims
In exceptional circumstances, other compelling reasons.
VII. THE COURT SYSTEM: DETERMINATION OF THE CITIZENSHIP – SUBJECT MATTER
JURISDICTION
28 USC §1332 establishes Federal District Court jurisdiction over civil actions between citizen of
different states if the minimum jurisdictional amount, 75000$, is satisfied.
Motion to dismiss for lack of subject matter jurisdiction:
At any time during the course of the lawsuit:
– A motion to dismiss for lack of subject matter jurisdiction can be filed
– A court can raise a jurisdictional defect
Absent jurisdiction, the Federal district court lacks the power under article III of the Constitution
to resolve this dispute.
GALLAGHER v. PHILADELPHIA TRANSPORT – 1950 – in slides


Facts: Plaintiff and husband, two children came to live continuously in Philadelphia from
California in 1944. Tie after, husband was convicted of a felony and sentenced to prison
for five to ten years In 1946, the plaintiff intended to go live in Oregon and make her
home. In 1947 plaintiff was injured in a bus accide…
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