Foreign States, Private Proxies, and “Discretionary” Torts on U.S. Soil

The tortious act exception to sovereign immunity offers a vital path for tort victims to seek redress against foreign states for harms committed on U.S. soil. Yet some courts have narrowed the exception in troubling ways when rejecting claims alleging clergy abuse cover-ups, cyberattacks, and other serious misconduct. Some have held that the exception applies only to torts committed by state officials and employees, excluding private actors even when acting under state direction. Others have deemed conduct “discretionary”—and therefore immune—even when it patently violated U.S. law or contractual obligations.

This Article challenges both readings. Drawing on legislative history, common law, and international law, it advances two core arguments. First, the exception should encompass torts by private actors if the state directed, coerced, or ratified the conduct. Second, conduct should be treated as nondiscretionary if any applicable law or contract specifically foreclosed the state’s chosen course of action.

Adopting this approach would realign a key exception to immunity with Congress’s intent and promote accountability for state-sponsored misconduct.