Epilog: Foreign Sovereign Immunity at Home and Abroad

Every author writing on U.S. law for this symposium notes that the extent to which the Executive Branch can make binding immunity determinations is an important issue going forward. In addition to Legal Adviser Koh, two other authors address this issue directly. Professor Peter Rutledge provides a typology of the various roles that the Executive Branch might play in immunity (and other) cases, distinguishing in particular between views articulated by the Executive Branch independently of ongoing litigation, and those expressed with respect to particular pending cases. And Lewis Yelin of the Department of Justice has contributed a major, comprehensive article defending the power of the Executive Branch to make binding head of state (status-based) immunity determinations as a matter of constitutional law.

Reading these articles together, one can see certain areas of convergence (particularly in the area of status-based immunity), but also areas of clear disagreement, particularly with respect to the control the Executive can and should exert over immunity determinations that arise in U.S. courts. In other words, the composition of our imagined immunity party will depend in part on the extent to which the views of the Executive Branch are followed, how those views are formulated, the scope of conduct-based immunity, and the existence of other potential areas of federal common law in the immunity context.