From the Frying Pan to the Fire: SCOTUS’ FSIA Inaction as Further Permitting Executive Branch Intervention in “Takings Exception” Cases and its Consequences in Forcing Holocaust Plaintiffs to Return to Europe

The Supreme Court of the United States (“SCOTUS”) very recently punted and left wide a circuit split on a key question under the Foreign Sovereign Immunities Act (“FSIA”): Do plaintiff Holocaust victims need to return to the country that wronged them in order to proceed in a United States federal court that otherwise had jurisdiction over their claims? While sending down unresolved a conflict between the D.C. and Seventh Circuits, in a companion case also involving Holocaust victims, SCOTUS essentially ended an action against Germany by taking the strong suggestion of the Executive Branch through its Solicitor General that a nation’s takings of its own nationals’ property did not amount to a violation of international law, even when the taking involved the degraded and diminished Jews of the Third Reich Period. This Article challenges the continuing, if not rising, influence of Executive Branch voices against Holocaust-related lawsuits in Article III courts by briefly reviewing the FSIA’s 1976 enactment, where Congress textually and intentionally vested full authority in judges, not Executive Branch officials, to determine such cases. I then review the Seventh Circuit’s treatment of “exhaustion/comity”—the remedy supported by the Executive—and another case also litigated in the Seventh Circuit (Scalin), where the State Department explicitly indicated through a Letter of Interest to the district court that Holocaust victims first be sent to the wrongdoing country of origin (France) before being allowed to proceed. This Article points to four perverse ironies in the resurgence of Executive Branch influence over judges in the FSIA cases. The first irony is that the entire motivation behind enacting the FSIA was to codify principles about sovereign immunity so as to elevate and make definitive the decisions of judges. Second, that enhanced Article III role, in the course of litigation through the years, had earlier been used with good intention and purposes by the Executive Branch, which then used its good offices to help negotiate results favorable to plaintiffs—not to end lawsuits brought by, among other genocide victims, U.S. citizen Holocaust victims. Third, U.S. courts do not always fathom the depths of difficulty such victims will encounter—both personally and legally—when they are sent from the frying pan of FSIA litigation to the fire of European jurisdictions supposedly capable of resolving their claims. And finally, in Scalin, plaintiffs would be sent back to seek resolution by a French agency whose powers of restitution emerged from previously successful victim-plaintiff litigation in U.S. courts (in Bodner), but which has not historically taken jurisdiction over railroad-related claims

Binaries: Remarks on Chaim N. Saiman\u27s Halakhah

Binaries are helpful but deceptive, and this may be particularly true of simplistic theological dichotomies purporting to show that the Talmud is Nitpicking and Christian Biblical understandings Expansive , or that Jews believe in the letter and Christians in the spirit , Jews in strict Justice and Christians in mercy , etc. This essay, which focuses on the character of Shylock and the legalistic cruelty inflicted upon him by Venice\u27s Christians, dissolves such Binaries, leaving in their wake greater clarity about the contrary need to re-binarize the falsely unified hyphenated adjective Judaeo-Christian

Sandy’s Joyfully Divided Soul and a Glimpse at a Constitutional Poethics in View of Roe’s Leaked Demise

In his version of the iconic story, Goethe has his hero say, “There are two Fausts in my soul!” And a century or so later, Camus’ lawyer narrator in The Fall puts his own first-person story under the sign of Janus, the Roman god with two faces looking in opposite directions. There is a bit of this doubleness in my friend Sandy\u27s soul. I’ve thought for a while that his trained intuition follows a literary tune, but that his less Dionysical and more Apollonian mind points him towards history and the social sciences

Coming of Age Some More: Law and Literature Beyond The Cradle

Two dates mark the renewal of Law and Literature studies in the 20th century

Yom Ha’Shoah in an Even More Special Context

This always precious day of mournful memory is linked in 2022 to the 80th anniversary of the event that gave birth to all that unutterable sadness: the Wannsee Conference of 1942. In an otherwise innocuous building you can visit anytime you are in Berlin, a handful of men, over cakes and liqueur, devised the “Final Solution”. It took them around two days, well heated and protected from the ice and snow outdoors, to list mechanically their estimates of how many Jews lived in Europe’s various countries and how these Jews might be – though their written minutes never use the word itself – exterminated. They already knew of the bullet-to-head methods used in newly conquered eastern Europe against defenseless men, women, and children. But this would be extermination on a grand scale

In Search of Faulkner\u27s Law

A Review of Forensic Fictions: The Lawyer Figure in Faulkner by Jay Watso