Authors

Chimène I. Keitner, UC Davis School of Law

Statutory Copy-Pasting in the Law of Sovereign Immunity

Abstract

Congress sometimes copy-pastes language from one statute into another statute. While this can serve the goals of consistency and efficiency, copy-pasting can cause problems when done across disparate legal regimes, such as different sovereign immunity doctrines. When Congress enacted the Foreign Sovereign Immunities Act (FSIA) of 1976, it borrowed language from the Federal Tort Claims Act (FTCA) of 1946 that exempts the exercise of “discretionary functions” from tort jurisdiction. Both statutes allow private damages claims against governmental entities in defined circumstances. Despite this superficial similarity, the statutes were enacted in very different contexts and serve fundamentally different purposes. Nonetheless, courts have relied on FTCA decisions to define the contours of tort jurisdiction under the FSIA. The resulting jurisprudence has been conceptually incoherent and doctrinally unsound.

This Article seeks to put FSIA jurisprudence on a firmer footing by disentangling it from the FTCA. In so doing, it clarifies important— and often overlooked—distinctions between domestic sovereign immunity, on the one hand, and foreign sovereign immunity, on the other. Codifying the international law of foreign sovereign immunity should not involve replicating the U.S. law of domestic sovereign immunity. The temptation to conflate different types of immunities can be especially problematic in a common law system based on precedent. Fundamental differences between the jurisdictional immunities of foreign governments and the immunity of the United States warrant eliminating the FSIA’s copy-pasted discretionary function exception. Meanwhile, courts interpreting the FSIA should consider principles of foreign sovereign immunity rather than the domestic separation of powers.

Repository Citation

Chimène I. Keitner, Statutory Copy-Pasting in the Law of Sovereign Immunity, 67 Wm. & Mary L. Rev. 75 (2025), https://scholarship.law.wm.edu/wmlr/vol67/iss1/3