The Private Law of Terror

Penn State Law Review Penn State Law Review

Article 4

10-1-2021

The Private Law of Terror The Private Law of Terror

Aaron Simowitz

Aaron D. Simowitz*

When we think of the law of terrorism, we think ofthe state and the terrorists. We think of the many steps that states take to detect, deter, and destroy terrorist groups. But that frame captures only a small piece of the overall picture of terrorism regulation. Regulation directed at and shaped by terrorism policy has inserted itself into many facets of private life. These interventions distort private law in predictable ways. These interventions are always presented as exceptions: terrorism is different, so they say. But these exceptions are generative. Terrorism has become the testing ground for new and different ideas about how to regulate private conduct-ideas that have a tendency to spread beyond the borders ofterror policy.

This Article examines disparate areas of U.S. law, each of which has been shaped by terror regulation. In tort, civil procedure, and banking, terror regulation has distorted the background principles guiding the intervention of law in private conduct. In tort law, terror regulation has led to a profound loosening of causation requirements, based on import of concepts from criminal law into civil liability. In civil procedure, federal statutes have expanded the power of courts to hear private terror suits and curbed the discretion of courts to stay or dismiss them. In banking law, terror regulation has led to a dramatic expansion of know-your-customer laws, as well as a persistent private litigation against multi-national banks.

Terror regulation shapes each of these bodies of law in similar and predictable ways. The state feels justified in inserting itself into private relationships more forcefully than in any other area of regulation. Protections owed to defendants are loosened, as are limitations on the power of courts. These innovations do not remain comfortably at home in the law of terrorism. They spread into other areas of private law once they have been broached in the private law of terrorism.

The private law of terror is likely to follow a different path than the public law of terror, however. In public law, terrorism legislation has displayed a "one-way ratchet" effect, making areas like criminal, immigration, and sanctions law consistently more punitive. In private law, interests, like banks and other financial powerful and well-organized intermediaries, are able to push back. Their intervention creates a different problem in private law-the rise of legislation that targets a single defendant or even a single lawsuit, like the Iran Threat Reduction Act or the recently passed Promoting Security and Justice For Victims of Terrorism Act. These laws undermine rule of law values, even if they target legitimate policy goals.

Table of Contents

Terrorism makes law. On October 7, 1985, terrorists seized the cruise ship Achille Lauro. They killed a passenger, Leon Klinghoffer, and threw his body and wheelchair into the ocean.' On September 11, 2001, terrorists flew two passenger jets into the World Trade Center towers in New York City, destroying both and killing nearly three thousand people.2 Later reporting suggested that the world's ten largest terrorist groups had a combined annual budget of over $4 billion.3

These and other acts of terror led to significant and well-documented reforms in many areas of public law, including criminal law, immigration, sanctions, and privacy.4 But terrorism also makes private law.5 Private law regulates the interactions between private parties-how they contract or litigate, for example.6 Private law shapes our lives as much as public law7

but receives far less attention, perhaps because the hand ofthe state is more hidden.

Terror regulation has followed a predictable path through private law reform, mirroring its path through public law." First, law reform due to terrorism is presented as an exception to the rule: "terrorism is different." 9 Second, the exceptional becomes normalized. Third, the innovations that were once justified as needed for the exceptional threat ofterrorism, now routine, spread to other areas of law. The exceptional becomes normal, then common.'0 These innovations, once broached in the law ofterrorism, do not necessarily stay there. Terrorism regulation has become a laboratory and proving ground.

This pattern has held across multiple areas of private law, including tort, civil procedure, and banking law. The path of terror regulation through private law is at an inflection point. Legislatures have made increasingly rapid changes to multiple areas of private law and are now considering whether and how to export those innovations into areas of private law having little or nothing to do with terrorism.

For example, Congress enacted the Foreign Sovereign Immunities Act (FSIA) in 1976 to govern when sovereigns and their organs or instrumentalities would be subject to suit and to seizure of assets as if they were private parties." Since then, every amendment except one has sought to strip immunity for acts of terrorism. Congress amended the FSIA in 1996 (twice), 1998, 2002, and in 2015.12 In 2015, Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA)1 3 over President

Obama's veto" and the objections ofthe State Department." Among other innovations, JASTA imputed to the sovereign the tortious conduct, anywhere in the world, of "any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency ....

"16

The immunity stripping innovations of JASTA have now become the template for immunity stripping bills currently before Congress. Three bills have used JASTA as a model for stripping immunity from the People's Republic of China for acts associated with the COVID-19 pandemic.' The Homeland and Cyber Threat Act (HACT Act)'8 used JASTA as a model for stripping immunity for cyber threats.1 9 This form of private law innovation was introduced to regulate terrorism, became normalized over time, and is now poised to expand into other areas of law that have little to do with terrorism.

Congress has not been idle in other areas of private law. When Congress enacted the Anti-Terrorism Act (ATA) in 1990,20 it included numerous including significant alterations to tort law, damages, and forum choice.21 In the past two years, Congress has amended the ATA twice to create the most aggressive jurisdictional "long-arm"

innovations,

statute in the federal system. 22 If this system is successful, it may well be deployed in other areas, such as products liability, where efforts at jurisdictional reform have languished for years. 23

Terrorism regulation seems poised to expand its influence into other areas of private law. The trajectory of terrorism regulation in public law would suggest a similar expansion, with similar effects, in private law. In public law, protections for criminal defendants and immigrants have been stripped away or reduced. Civil rights for citizens have been relaxed. Harsher penalties have been imposed on individuals and on developing nations with less process. 24

In private law, terror regulation has begun to have similar impacts but may have a different ultimate trajectory. The political economy of private law differs from that of public law. In criminal law, for example, terror regulation is part of the "law and order" agenda with a well-documented "one-way ratchet" effect.25 Political bodies generally find imposing harsher penalties appealing but rarely find lessening penalties palatable.2 6 This is particularly true for terrorism. 27 The same is true for immigration law.28 In both areas, the groups opposing greater penalties and lesser

protections are immigrants.

relatively disempowered-criminal defendants and

The parties resisting changes to private law are much more powerful. Multinational banks in particular have moved to the center ofthe process, as the Supreme Court's jurisdictional retrenchment has made them the principal class of defendants in private terrorism suits.29 Therefore, the political economy and ultimate trajectory of terrorism-driven law reform in private law may be rather different.

Where the political economies of terrorism law and private law collide, so-called "special legislation" is born. These laws target a single defendant or even a single lawsuit, such as the Iran Threat Reduction Act or the recently passed Promoting Security and Justice for the Victims of Terrorism Act. Even when these laws promote legitimate policy aims, their hyper-targeted nature runs the risk of undermining rule-of-law values. At a minimum, bills that target only one lawsuit against Iran or only entities representing Palestinians are likely to feature expansive powers coupled with poor drafting.

This Article makes several novel contributions. This is the first piece to consider the effect ofterror regulation across multiple areas of private law, to note how the well-documented effect ofterror regulation on public law resembles the effect on private law, and to observe the significant reasons that terror regulation's ultimate effect on private law may differ from the public law realm.

This Article proceeds in three Sections. The first Section describes how terrorism regulation has shaped multiple areas of private law, including tort, procedure, and banking law. The second Section examines how terrorism regulation has moved in private law, as in public law, from the exceptional to the normal and is now poised to expand into other areas of private law. The third Section assesses the differences in the political law and concludes that terrorism economies of public and private regulation may ultimately take a very different path in private law than it has in public law.

Terrorism regulation has become a driving force of change and innovation across multiple areas of private law, including tort, civil procedure, and banking law. In each of these areas, the demands of terrorism regulation have been used as the reason to loosen protections for

defendants, to expand the power of courts, and to impose additional obligations on private parties, particularly banks and other financial intermediaries.

A. Tort

Terrorism regulation has worked several marked departures from baseline tort law. The Anti-Terrorism Act (ATA), enacted in 1990,30 is at the heart of these changes, though courts have also used the ATA as a jumping off point for further expansions. The ATA codified terrorismrelated the extraordinary treble damages remedy.

loosened causation

requirements, and

imposed

torts,

1. Statutory Codification

On October 7, 1985, four terrorists seized control of the Achille Lauro, a cruise ship sailing from Alexandria to Ashdod, Israel. The terrorists murdered Leon Klinghoffer and threw his body and wheelchair overboard. Klinghoffer's spouse and estate brought suit against several defendants, who in turn moved to implead the Palestinian Liberation Organization (PLO). Other passengers filed suit against the PLO as well.31 The PLO moved to dismiss on the grounds that the U.S. court lacked subject matter jurisdiction over the claims and personal jurisdiction over the PLO. The court ruled against the PLO, holding that it had subject matter jurisdiction over the tort action under admiralty law and the Death on the High Seas Act.3 2 The court sounded a cautionary note, which Congress would later echo, that a "similar attack occurring on an airplane or in some other locale might not have been subject to civil action in the U.S."33

The court also found that it had personal jurisdiction over the PLO, ruling that it was subject to general jurisdiction in New York. The court found that the PLO was "doing business" in New York because it "owns a building in Manhattan, which it uses as an office and residence for its employees, and it owns an automobile, maintains a bank account, and has a telephone listing in New York as well[,]" and in "terms of its activities, it participates actively at the United Nations headquarters in Manhattan as a Permanent Observer, and its representatives have at times engaged in speaking tours and fund-raising activities throughout the State."34 The

United States Court of Appeals for the Second Circuit reversed and remanded because "basing jurisdiction on the PLO's participation in UNrelated activities would put an undue burden on the ability of foreign organizations to participate in the UN's affairs."35

The case finally settled over ten years later. The U.S. Congress concluded that it was necessary to provide victims of terrorisms with a federal statutory tort, rather than leaving them to rely on a mixture of common law and state statutory torts that were not specific to terrorism.36 In 1990, Congress enacted the ATA.

The ATA has many features that depart from garden-variety tort and procedure law. The first departure is the mere fact ofits existence. This is the "Age of Statutes," 37 when even "the venerable common law area of torts is not immune from the pervasive influence of statutes." 3" And yet, the ATA is unusual. It created a stand-alone federal statutory tort that neither modifies nor supplants a common law tort. Rather, the ATA creates a tort precisely because courts had held that no legal theory existed to support claims in this area.39 Federal statutory torts are still the exception, not the rule. 40

The peculiar nature of the ATA avoids many of the common pitfalls of the classic conflict between common law torts and federal statutory torts. There is no issue ofwhether a state law tort is preempted or modified. Because of the explicit nature of the private right of action, there is no question of whether courts should create an "implied" statutory tort. Nor are there issues of "whether a statutory violation establishes negligence per se, or whether compliance with a safety statute or regulation constitutes a complete defense to tort liability." 4i

Nevertheless, the ATA does present an odd incarnation of a classic conflict-the tension between the tort and the regulatory system. The detection, deterrence, and punishment of terrorism (and its financing) are the subject of an enormous domestic and international regulatory and

diplomatic apparatus. Private torts under the FSIA or the ATA empower private plaintiffs in a way that can complement this regulatory apparatus 42 but frequently conflict instead.

For example, the Executive has the power, granted by Congress, to freeze assets of state or non-state entities.43 The Executive is free to decide, in theory, whether to disburse these assets to victims of terrorism or to use them as leverage for diplomatic gains. 44 (Executives have normally chosen the latter, regardless of party affiliation.) 45 Congress has simultaneously granted this power to the Executive while granting private plaintiffs the power to sue state and non-state entities and to execute on their assets. The executive branch has typically resisted Congress's interventions and, in some instances, the President has vetoed the enabling legislation or used other means to nullify it.46 Congress has responded by expanding plaintiffs' remedies and, in some cases, making the Executive's actions more politically unpalatable by forcing the Executive to publicly declare, repeatedly and with specificity, that it is keeping the assets out of plaintiffs' hands. 47 The Congressionally imposed public declarations have become a model for similar requirements in other areas, such as the

requirement that the Executive declare a "national emergency" to activate remedies under the IEEPA. 48

In this context, terrorism torts are at once a part of the regulatory scheme and an attack on it. In particular, the creation of a private tort becomes a means of "dialogue" between the elected branches. In creating these torts, Congress is not just empowering private plaintiffs. (Indeed, private plaintiffs may be restricted to symbolic, paper victories without the acquiescence of the Executive.) Congress is also pressuring the Executive and attempting to insert itself more directly into the conduct of foreign affairs.

2. Causation

The ATA provided for a private statutory tort for claims arising from action of international terrorism, codified in Section 2333.49 Section 2333 did not produce a single reported decision for ten years.50 The U.S. Congress passed the Violent Crime Control and Law Enforcement Act in 199451 and the Anti-Terrorism and Effective Death Penalty Act in 1996.52 These statutes criminalized material support ofterrorism. U.S. courts read the expanded criminal statutes to modify the pre-existing civil tort in Section 2333 expansively to cover "aiders and abettors" of international terrorism to further "Congress' stated purpose of cutting off the flow of money to terrorists at every point along the chain ofcausation."3

As Maryam Jamshidi has observed, "[n]otwithstanding Section 2333's close relationship to the criminal material support laws, courts have repeatedly and correctly described the civil statute as a traditional tort."5 4 Nonetheless, "a growing number of courts have upended basic tort requirements in deciding Section 2333 cases and significantly expanded liability under the statute."5 5 This divergence has been particularly plain in the area of causation.

When courts did start hearing claims under Section 2333, they initially hewed to the traditional tort standard ofcausation, specifically that

the defendant must have intended both the action and its consequence. According to Jamshidi however, courts soon "nearly all . .. took the radical step of eliminating factual causation." However, most courts still "required that defendant possess both kinds of scienter and satisfy the requirements of legal cause."56 Even these courts, over time, "abandoned their commitment to these norms and adopted more expansive approaches to the statute."57 Some courts "also effectively eliminated legal causation in cases where support allegedly went directly to a terrorist organization, its agents, or alter-egos .... "58

Jamshidi argues that these departures from background private law principle have consequences. These deviations from "prevailing tort law theories" could harm "tort law's coherence and consistency," elide important distinctions between tort and criminal law, and reinforce "a belief in terrorism's existential danger-a perspective with little to no empirical support."5 9 Jamshidi concludes that, although the disease is complicated, the cure is simple: return to ATA's statutory civil tort to generally applicable in doing so, "discourage tendencies to use the statute, which carries a high potential damages award, to pursue deep-pocketed defendants with tenuous connections to terrorism and terrorist organizations." 60

tort principles and,

3. Damages

The ATA expressly authorizes an automatic award oftreble damages for successful claims. 61 The treble damages routine is not unique, but it is reserved for private torts that are intimately and necessarily embedded in an important regulatory scheme, such as antitrust. Across various areas, U.S. courts have consistently held that the extraordinary nature of the treble damages remedy implies a scienter requirement even if the statute is silent on mens rea.

Courts were initially united in imposing a mens rea requirement on the ATA, though they took somewhat different paths. Some courts "created an independent scienter element for the statute," some "imported Sections 2339A and 2339B's mens rea," while others "combined the two approaches." 63 However, courts in each of these camps "progressively

loosened" the ATA's scienter requirement.64 Now, a "plaintiffneed only show that defendant knew or consciously and recklessly disregarded the fact that she was providing support to a terrorist group, whether directly or indirectly," and "need not prove defendant had the intent to support terrorist violence or consciously and recklessly disregarded the risk her support would facilitate such violence."65 Jamshidi painstakingly explores how and why U.S. courts have loosened the scienter requirement attached to the treble damages remedy, even as their underlying approaches have differed.66

Mandatory treble damages are quite rare-though certainly not unique to terrorism torts.67 The mandatory treble damages remedy is most closely associated with private antitrustactions in the United States. Since 1890, Section 4 of the Clayton Act has provided that a private antitrust plaintiff is entitled to a mandatory award of treble damages. 68 For almost a century, this extraordinary remedy was nearly unique to antitrust. Over time, treble damages began to percolate through various areas of state law, punishing various types of willful conduct, such as willful overage of tenants or deceptive trade practices. These state law impositions of treble damages were discretionary, however. Mandatory treble damages remained rare.

In the 1980s, mandatory trebling of damages for antitrust actions came under sustained criticisms from the early titans of the law and economics school. The Reagan Administration signaled an interest in removing mandatory treble damages, exciting more commentary.69 Despite this disrepute, the mandatory treble damages remedy-after nearly a century in waiting-found its way into two new statutes, the Racketeering Influences and Corrupt Organization Act (RICO)70 and the ATA.71

RICO and the ATA have similarities. Initially, they were both focused on willful conduct and on civil wrongs closely connected with criminal conduct. They differed significantly, however. RICO was a

classic example of "regulation on the cheap."72 The U.S. Congress was concerned about the lack ofresources among federal and state prosecutors to detect, prosecute, and deter sophisticated racketeering conspiracies. RICO was a classic example of empowering private attorney generals to seek out, investigate, and punish these enterprises.

Over time, the ATA has come to resemble the original vision for RICO, particularly with the advent of the civil material support action and the turn to focus on deep-pocketed multinational entities. But at the time of its passage, even the ATA's sponsors admitted that it might be mostly symbolic. The Palestinian Liberation Organization (PLO) was at the forefront of Congress's concern. Few believed that even prevailing ATA plaintiffs would be able to collect against the PLO, or other state or nonstate entities accused of engaging in international terrorism. But even if the ATA was just symbolic, the bill's sponsors felt that it was important and necessary symbolism. In this light, the ATA's mandatory treble damages remedy was unique in that it was principally expressive. If an ATA judgment has symbolic value, perhaps a bigger judgment has more. The ATA's use oftreble damages is also unique in that it is the only instance in which this remedy has been deliberately used to restrict and channel forum choice. As discussed below, the drafters of the ATA were deeply concerned about ATA actions staying in U.S. courts with a minimum of procedural obstacles. Accordingly, the ATA prohibited dismissals in favor of another country's courts unless those courts would provide "substantially the same" remedy. 73 Mandatory treble damages are almost unknown outside U.S. law. The drafters of the ATA knew this and knew that deploying the mandatory treble damages remedy in this way would almost entirely eliminate dismissals in favor of a foreign forum.

B. Procedure

Congress has turned private civil suits into a central pillar of legislative approach to terrorism. In successive terrorism laws, Congress has expanded the power of courts, diminished the protections owed to

defendants, and restricted defendants' ability to affect forum choice. In its most recent enactment, Congress created a uniquely aggressive jurisdictional regime but limited only to entities claiming to represent Palestinians.

1. Jurisdiction

The saga of the Achille Lauro litigation spurred Congress to pass the ATA. The jurisdictional obstacles that had plagued the plaintiffs were uppermost in the minds of the bill's sponsors. 74 Senator Charles Grassley, one of co-sponsors ofthe ATA, emphasized that the bill was necessary to remove 'jurisdictional hurdles." 75 The Congressional Report on the ATA described the "gap in [Congress's] efforts to develop a comprehensive legal response to international terrorism."76 The Report particularly noted that, if the PLO had not maintained assets and carried on activities in New York, no U.S. court would have been "able to establish jurisdiction."7 7

in U.S.

The ATA did not, however, explicitly address personal jurisdiction, it certainly embodied Congress's judgment that personal though jurisdiction courts should exist when a foreign terrorist organization injures a U.S. national abroad.7 At the time, the breadth of general personal jurisdiction and expansions in the U.S. Supreme Court's interpretation of specific jurisdiction may have rendered such an explicit statement unnecessary.

In past several years, however, the Supreme Court has dramatically reversed course and narrowed both general and specific jurisdiction.79 The decisions that have "had the most notable impact on terrorism litigation"8 0 were not themselves about terrorism. In Daimler v. Bauman, the Court

considered a transnational tort suit alleging human rights abuses by an Argentine subsidiary of Daimler AG.8 1 The Court held that the suit could not be litigated in a U.S. court merely because a Daimler subsidiary was incorporated in a U.S. state.82 The Court did not rely on the corporate separateness of the subsidiary, but rather "confirmed what it had only hinted at previously-that general jurisdiction would be sharply limited to only those states where the corporation was at home."8 3 The Court swept away decades of cases exercising power over corporate and natural persons because they had "continuous and systematic" contacts with the forum, "such as leasing a small sales office with a handful of temporary employees." 84 The Court held that a corporation would be subject to jurisdiction for any and all claims or where it was "at home"-absent "exceptional circumstances," only at its place of incorporation or principal place of business.85 In short, "the Court reduced the number of forums in which a large multinational corporation would be subject to general jurisdiction from scores to just two." 86 The Court predicted that claimspecific jurisdiction would fill the gap.

Then the Court followed Daimler by repeatedly narrowing specific jurisdiction. In Walden v. Fiore, the Court held that a suit alleging that a federal agent had deliberately filed a false declaration knowing that it would affect residents of Nevada could not be litigated in Nevada because the officer's conduct merely targeted Nevada residents and not the forum of Nevada itself.8 7 The Court observed that when the "relevant conduct" comprising an intentional tort occurs entirely outside the forum, "the mere fact that [this] conduct affected [plaintiffs] with connections to the forum State does not suffice to authorize jurisdiction."8 8 A defendant's "suitrelated conduct" must have a "substantial connection" with the forum

itself89 In Bristol-Myers Squibb v. SuperiorCourtofCalifornia,the Court is a connection between the forum emphasized that "[w]hat is needed ... and the specific claims at issue."90

Daimler and Walden, both decided in 2014, did not concern terrorism. The Daimlermajority specifically sought to counter concerns about overly narrow jurisdiction by noting that the plaintiff's federal claims had been rendered "infirm" for other reasons. 91 Nonetheless, these cases had an immediate impact on private claims under the ATA. Of four the ATA, only one survived jurisdictional pending cases under objections. 92 That case led directly to the passage of the Antiterrorism Clarification Act (ATCA).

One case, Sokolow v. PalestineLiberation Organization,93 survived in large part because those objections came before the court on a motion for reconsideration ofa judgment. The "defendants had failed to meet their burden on reconsideration because the record before the court" was "insufficient to conclude that either defendant is 'at home' in a particular

jurisdiction other than the United States."94 The defendants prevailed on appeal. The panel for the United States Court of Appeals for the Second Circuit held that "Walden forecloses the plaintiffs' arguments ... [that] the mere knowledge that United States citizens might be wronged in a foreign country goes beyond the jurisdictional limit set forth in Walden."95 The court reasoned that this holding would not eviscerate the ATA because attacks "specifically targeted against United States citizens" abroad would satisfy Walden's requirements, but that the "plaintiffs point[ed] us to no evidence" of such deliberate targeting. 96

The plaintiffs "sought certiorari from the U.S. Supreme Court, attracting amicus briefs in support from the U.S. House ofRepresentatives, twenty-three currently serving U.S. Senators, and a group of former federal officials." 97 The Solicitor General's office "recommended against on certiorari, in significant part relying on the lower court's optimistic prediction" that Walden would not foreclose jurisdiction where terrorists target Americans abroad. 98 No court has "yet held that terrorist attacks targeting U.S. citizens abroad necessarily also targets the forum of the United States-as required by Walden."99 The Supreme Court denied certiorari.0

to have consented

Congress passed the ATCA in direct response.' 0' The ATCA stated to personal any defendant "shall be deemed jurisdiction" if, within 120 days of the enactment of the ATCA, the defendant either receives certain types of economic assistance from the United States or operates a facility within the United States while benefitting from a waiver or suspension of the statutory bar to "the PLO or any of its constituent groups" operating such a facility within the United States. 0 2 The ATCA quickly among

disagreement

provoked

commentators. In the courts, it was essentially a nullity.1 03 The Trump Administration's aggressive actions toward the Palestinian Authority meant that the conditions to consent were no longer satisfied and, by the statute's terms, did not operate retroactively. 0 4

Congress returned to the fray following the second dismissal of the Sokolow case, which had given rise to the ATCA in the first place. On December 20, 2019, Congress enacted the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA) (apparently unsatisfied with calling it the Anti-Terrorism Clarification Act). 05 The PSJVTA was specifically designed to "overcome[] each of the lower court's objections to applying the ATCA."1 06 It amended Section 2334(e)(1) to omit the "benefiting from a waiver or suspension" requirement, and instead simply applied the statute to "defendants," defined to include the PLO and PA by name. 07 The PSJVTA also amended the ATA to specifically include the PA's facility in midtown Manhattan as a basis for consent jurisdiction, reversing lower court decisions excepting the facility from the statute's reach because it was used principally in furtherance of the PA's U.N. observer status.1 08 Finally, Congress amended the statute to apply to "any case pending on or after August 30, 2016"1 09-"the day before the Second Circuit issued its decision in this case reversing the judgment for petitioners" in Sokolow." 0 In light ofthe amendments to the amendments to the ATA, the Supreme Court granted certiorari, vacated the decision below in Sokolow, and remanded.

However, the PSJVTA is more than simply an attempt to clean up the ATCA. It has several novel elements. First, it states that the term "defendant," according to the statute, means:

The PSJVTA does not merely include these entities; it could be interpreted to extend solely to them. This sort of hyper-targeted jurisdictional provision has the benefit of being honest about its intended objects-but if procedure benefits from trans-substantivity, it is extremely troubling.

Second, the PSJVTA added a new, broader basis for "consent" jurisdiction. The PSJVTA excepted certain activities, particularly those associated with petitioning the United Nations or the United States, but added that a defendant "shall be deemed to have consented to personal jurisdiction" in an ATA action if it:

This provision bases consent jurisdiction on the making ofpayments colloquially referred to as "martyr payments." It stretches the meaning of consent well beyond its public meaning and perhaps to a breaking point if the term jurisdiction and its associated concepts have any intrinsic content."1 3

The PSJVTA would face significant obstacles under a specific jurisdiction analysis. It relies on conduct that takes place entirely abroad. Under Walden, this may not inherently pose a problem if the conduct targets the forum of the United States itself. But note that the question of targeting is complicated here. The attack itself need not have targeted U.S. nationals-it could have harmed them incidentally. The payment itself is made on account of an attack that harmed U.S. nationals. The PSJVTA would seem to rely on the notion that paying the perpetrator or the family of a person who has attached U.S. nationals constitutes targeting of the United States. That notion stands in conflict with Walden. Therefore, the

PSJVTA seems to rely on the framing of this exercise of power as "consent" to insulate it from constitutional challenge.

2. Immunity

For most ofits history, the United States "afforded foreign sovereigns absolute immunity from suit in U.S. courts as a matter ofcommon law."" 4 The rise of international trade and commerce in the middle ofthe twentieth century prompted the United States to adopt a more restrictive theory of immunity which permitted suits arising out ofa foreign state's commercial activity." 5 This approach was formalized in the famous Tate Letter."1 6 Under this system, the State Department made formal suggestions of immunity that carried significant weight, though the final determination rested with the courts." 7 This approach was criticized as unpredictable and haphazard. The State Department held formal internal hearings on immunity, but as the foreign state often did not appear, these hearings were sometimes conducted in front of an empty chair.

transferred

(FSIA) and

Immunities Act

In 1976, the United States codified the restrictive approach in the Foreign Sovereign the determination of immunity from the executive to the judiciary, subject to standards laid out in the FSIA. The FSIA provided foreign sovereigns and their instrumentalities and organs with immunity from suit except in cases involving: "[1] an explicit or implied waiver of immunity by a foreign state, [2] commercial activity of the foreign state in or directly affecting the United States, [3] non-commercial torts committed by a foreign state (including by its officials and employees), or [4] disputes involving certain real estate and real property." i8

Since the enactment of the FSIA, every amendment but one has concerned stripping sovereign immunity for acts of terrorism. In 1996, Congress responded to the dismissal of cases against Libya for the

bombing of Pan Am Flight 103 by enacting the Antiterrorism and Effective Death Penalty Act (AEDPA).119 This exception "provides that U.S. citizens injured in a terrorist act, or their survivors if the attack is fatal, may file civil suit against a foreign state or its instrumentality that either committed the terrorist act or provided aid to a group that committed the act."120 The amendment, codified under 28 U.S.C. @ 1605(a)(7), states that immunity is lost if five elements are satisfied:

The 1605(a)(7) exception failed to provide a private right of action. Later that year, Stephen Flatow was therefore unable to sue when his daughter was killed by a terrorist attack in Israel. Flatow successfully lobbied for enactment of the Civil Liability for Acts of State Sponsored Terrorism Act, commonly known as the Flatow amendment, that explicitly permitted for private suits and punitive damages against designated SSTs.122

Private plaintiffs face further difficulties in terrorism litigation. Private plaintiffs were able to file suits but could not collect on them, as the Executive would frequently prevent plaintiffs from collecting from defendants' assets. The Office of Foreign Assets Control (OFAC) has the power to prohibit the transfer of use of assets unless the Executive consents to the transfer. Prevailing plaintiffs were unable to satisfy their judgments out of these blocked assets, which the Executive preferred to keep frozen as leverage "to accomplish foreign policy or national security goals."1 2 3 Congress sought to undermine this Executive reluctance in 1998

by amending the FSIA to make blocked assets available for execution and attachment, subject to a waiver of the provision by the Executive.124 In effect, ifthe Executive wanted to prevent victims ofterrorism from seizing these assets, it would have to make a specific public statement to that effect. A day after signing the bill, President Clinton did so.1 25 This pushand-pull between the elected branches was typical of immunity-stripping measures. Nonetheless, this round of amendments contained other forms that of assistance the Departments of State and Treasury is "to ... locating and executing [judgments] against property [owned by the] foreign state ... "126

judgment creditors,

for private

including

assist ...

in ...

After the attacks on September 11, 2001, "victims and their families filed lawsuits against many different foreign defendants, alleging the defendants negligently, recklessly, or intentionally aided and abetted the hijackers on 9/11."127 Six ofthese lawsuits were consolidated in the United States District Court for the Southern District ofNew York.128 Several of the defendants, including the Kingdom of Saudi Arabia, claimed that immunity under the FSIA prevented the court from asserting subject matter jurisdiction over the case. The plaintiffs claimed the Kingdom and several Saudi princes had "donated funds to charity, using both personal and state accounts, knowing that the charity would transfer the funds to alQaeda."1 29

The district court "dismissed the princes and the Kingdom from the lawsuit because of foreign sovereign immunity." 30 A panel for the United States Court of Appeals for the Second Circuit affirmed. The terrorism exception only applied to entities designated by the Executive as SSTs.131 Commentators observed that the plaintiffs' resort to the domestic tort

exception looked like an attempt to circumvent this restriction on the terrorism exception.132

The September 1 1th attacks and the obstacles to the subsequent litigation prompted further rounds of immunity stripping legislation. In 2002, Congress enacted the Terrorism Risk Insurance Act, which limited the effectiveness ofExecutive waivers and required the Executive to make "an asset-by-asset determination that a waiver is necessary in the national security interest[,]" rather than issuing a blanket waiver.133

As with these previous immunity stripping amendments and with the ATA, the Justice Against Sponsors ofTerrorism Act (JASTA) was a direct response to courts' action (or inaction) on private terrorism claims. JASTA was introduced in the Senate shortly after the appellate decision in In re Terrorist Attacks and stated that the court's decision gave "undue protection from civil liability" to foreign groups that "provide material support or resources to foreign terrorist organizations." The bill quoted Judge Posner for the view that private "suits against financiers ofterrorism can cut the terrorists' lifeline" and added that private plaintiffs must have access to U.S. courts to seek redress against terrorist groups for injuries they or their loved ones have suffered. The bill aimed to provide private plaintiffs with the "broadest possible basis" to "seek civil liability against persons, groups, and foreign countries that directly or indirectly provide material support to terrorist activities against the United States."134

JASTA finally became law in 2015, passing over President Obama's

veto. JASTA stripped immunity from foreign states for:

JASTA explicitly permitted a private right of action and applied retroactively to any suits relating to the September 1 1th attacks. JASTA did recognize the possibility of international conflict and included "a in civil the Attorney General provision

that allows

intervene

to

proceedings to seek a stay, as long as the United States is engaging in discussions with the foreign state to resolve the civil claims.", 36

JASTA "received large amounts of criticisms, both domestic and abroad, regarding its practicality and legality."137 Commentators debated whether it violated international law. The European Union encouraged President Obama to veto JASTA as it "would be in conflict with fundamental principles of international law and in particular the principle of State sovereign immunity." , 38 President Obama did so, in part because of the belief that JASTA "departs from longstanding standards and practice under our Foreign Sovereign Immunities Act and threatens to strip all foreign governments of immunity from judicial process in the United States based solely upon allegations by private litigants.", 39 President Obama also noted that other states might take similar actions toward the United States. 40

3. Forum Choice

The ATA does not stop at changing the background rules for jurisdiction and damages. It also essentially eliminates one of the most common defenses in transnational suits, forum non conveniens. Section 2334(d) bars a dismissal for forum non conveniens unless the remedies available in the foreign forum are "substantially the same" as those in the United States.141 This requirement works in tandem with the ATA's grant oftreble damages to render nearly every foreign forum inadequate.

Courts have interpreted this section of the ATA strictly, even though the garden variety forum non conveniens dismissal does not require

equivalent or even similar remedies.1 42 In one prominent case, the United States District Court for the Eastern District of New York rejected a motion to dismiss forforum non conveniens by Arab Bank for the case to be heard in Jordan, reasoning that even if "a Jordanian court would be significantly more convenient and appropriate," the foreign court would be unlikely to provide "'substantially the same" remedy as the U.S. court.1 43 Overall, U.S. courts "have expressed an adamant refusal to dismiss these cases in light of the venue provisions of the ATA[,]" even "in those cases where the act ofterrorism giving rise to the suit occurred in a foreign jurisdiction .... "144

The September 11th attacks prompted Congress to take further action to narrow forum choice in private terrorism suits. In response to the attacks, Congress passed the Air Transportation Safety and System Stabilization Act (ATSSSA), providing that the district court for the Southern District of New York shall have "exclusive jurisdiction over all actions brought for any claim . .. resulting from or relating to the terroristrelated aircraft crashes of September 11, 2001."145 The text of the ATSSSA, "[r]ead in isolation," seems "unambiguous and appears to require that plaintiffs' claims be heard in the Southern District of New York[,]" regardless of location of the plaintiff or defendant and of the nature of the cause of action.1 46 Nonetheless, several "courts have toiled over the legislative history of ATSSSA, ultimately determining that Congress did not intend to centralize all terrorism lawsuits,"1 47 but rather meant only to "promote the efficiency and rationality of litigation" and "limit the aggregate exposure of the non-terrorist defendants."1 48 In particular, U.S. courts have attempted to avoid an interpretation of the ATSSSA that draws it "irreconcilably into conflict with the ATA," which permits plaintiffs to file private terrorism suits in "any appropriate district

court of the United States."1 49 A "narrow construction to the 'exclusive jurisdiction' language of Section 408(b)(3)" of the ATSSSA allows the pieces of legislation "to be harmonized." 5 0

C. Banking

For at least a quarter of a century, domestic and international laws have been deployed specifically to combat terrorist financing and money laundering. The "know your customer" or KYC principle is the main domestic and international approach to enlisting banks and other financial intermediaries to police material support of terrorism. Under the KYC principle, "the financial intermediaries are supposed to conduct due diligence to determine if their financial services are being used to launder money or finance terrorism by identifying individual customers."

The United States has deployed various approaches to enlisting financial intermediaries in the battle against terrorist financing. After the September 1 1 th attacks, the United States established the Foreign Terrorist Asset Tracking Center, "an inter-agency team focused on disrupting terrorist fundraising by identifying foreign terrorist groups, assessing their funding sources and methods, and providing law enforcement officials." 5 2 The center is part ofthe Office of Foreign Assets Control (OFAC).

information to

OFAC is "a subdivision of the Treasury Department tasked with administering and enforcing economic and trade sanctions based on U.S. foreign policy and national security goals" and "directs its activities against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. "15 OFAC operates in tandem with the International Emergency Economic Powers Act (IEEPA), 5 4 which "grants the President the authority to freeze the assets of an individual or organization designated a national security threat which had its source in whole or in substantial part outside the United States only if the government had declared a national emergency."

1. Confidentiality and Bookkeeping

Title III of the U.S.A. PATRIOT Act "provides specific details on the role of financial institutions in fighting terrorism."1 56 This legislation contained significant departures from generally applicable banking law, including that "financial institutions are protected from civil liability when transactions[,]" allowing they reveal financial for violating client confidentiality or being linked themselves to the suspicious funds."

information about suspicious

intermediaries

liability

"escape

to

including record keeping and reporting requirements,

Congress "also expanded existing money-laundering provisions" in the U.S.A. PATRIOT Act. 5 7 The International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 requires "special measures for specific financial transactions[,]" though it "allows the Secretary of Treasury to determine precisely what these measures might be."'5 8 Title III of the U.S.A. PATRIOT Act extended these provisions to securities firms and requires greater "cooperation between financial institutions, law enforcement, and regulatory authorities."159

2. Freezing and Forfeiture

1 1th attacks, Congress

The U.S.A. PATRIOT Act "also significantly expands the power of the government in dealing with suspected terrorists financing" by, among other things, permitting asset freezes early in an investigation.1 60 After the September lowered the evidentiary burdens required for OFAC to freeze assets. This led one commentator to describe OFAC freezing actions as "criminal prosecution[s] in sheep's clothing.",161 The staffofthe National Commission on Terrorist Attacks (the "9/11 Commission") prepared a lengthy monograph on the funding of Al-Qaeda and the flaws in the U.S. system of regulating terrorism financing.i62 The monographs particularly criticized OFAC freezing orders. The financing monograph noted that because "prosecuting criminal terrorist fund-raising cases can be difficult and time-consuming, the government has at times used administrative orders under the IEEPA to block transactions and freeze assets even against U.S. citizens and entities," but "the use of

administrative orders with few due process protections, particularly against our own citizens, raises significant civil liberty concerns .... "163

In particular, the monograph noted that a "designated person or entity in such a situation does not have certain rights that might be available in a civil forfeiture action," where the government "must file a lawsuit and bear the burden of proof by a preponderance ofthe evidence[,]" and where "the owner of the property has the right to conduct discovery of the government's evidence, such as taking sworn depositions and obtaining documents." 164 The property owner further lacks the ability to contest the asset freeze "by demonstrating that he or she is an innocent owner-that is, obtained or possessed the property in question without knowing its illegal character or nature[,]" because an IEEPA "freeze does not technically divest title [,]" even though, "when a freeze separates the owner from his or her money for dozens of years, as it has in other IEEPA contexts, that is a distinction without a difference."165

the

innovation

The monograph also criticized

in the U.S.A. PATRIOT Act to permit asset freezes "during the pendency of an investigation." The monograph noted that the "government is able to (and has, on at least three occasions) shut down U.S. entities without developing even the administrative record necessary for a designation[,]" as such an "action requires only the signature of a midlevel government official." 166 These freezing actions may also reinforce an "outdated" premise-"that terrorist operations need a financial support network" operating "from a central source or group of identifiable sources."167

The U.S.A. PATRIOT Act not only allowed freezes earlier in the process, but it also expanded the government's powers to impose asset forfeiture. For example, the government now has "long-arm jurisdiction over property for forfeiture procedures[,]" meaning that "if a terrorist moves the proceeds of his American investments to a money market account in the Bahamas, the U.S. government may still access it."168 The government may now also "forfeit funds held in a foreign bank account by forfeiting funds from a corresponding account that the foreign bank has in a financial institution in the United States," and "does not need to show that the funds it forfeits from the U.S. account are directly traceable to the

criminal proceeds in the foreign account. "169 Defendants can no longer mount an "innocent owner defense." 7 0 These are significant departures from garden-variety forfeiture-already regarded as potentially abusive.

The path of terror regulation in private law has followed the path of terror regulation in public law but only up to a point. Innovations in terror regulation are initially presented as exceptional-broad powers crafted for the particular threat of terrorism. Over time, these exceptional powers become normalized, even routine. Once innovations become normalized, they spread to new areas, sometimes far afield from terrorism. This expansionary phase can be driven by legislatures, by courts, or by both.

these

A. Exceptionalism andNormalization

Terrorism regulation has blazed a well-documented trail through various areas public law. Terrorism regulation has shown signs of following the same path in private law. In brief, legislatures present terrorism regulation as exceptional or "in a class by itself"1'7 Repeated use and long-term acceptance of these exceptional interventions begets familiarity and normalization. Once innovations have become routine in the terrorism context, they spread to other areas of law.

The law of sovereign immunity illustrates this path in the context of private law. The FSIA was enacted into law in 1976.172 Since then, Congress has amended the FSIA several times-almost every time to strip immunity for various terrorism regulations. Congress initially regarded amending the FSIA as an extraordinary step, required by an exceptional need. Over time, amending the FSIA to strip immunity for terrorismrelated offenses became normalized, even routine.

In the context of terrorism regulation, Congress's comfort with aggressive immunity stripping led to the Justice Against Sponsors of Terrorism Act (JASTA) of 2016,173 which made extraordinary changes to background principles of sovereign immunity. JASTA greatly expanded

170. Id. 171. Maryam Jamshidi, How the War on TerrorIs TransformingPrivate U.S. Law,

how and when the actions of agents could be imputed to the sovereign to destroy sovereign immunity.

The FSIA's background rule for non-commercial

torts is that activities of agents cannot be imputed to the sovereign ifthe agent is acting in her discretionary capacity.' 4 4 In essence, the sovereign's immunity from suit and execution cannot be waived by the actions of agents unless the agents are acting pursuant to a policy of the sovereign that leaves them with no discretion. JASTA appears to eliminate this "discretionary functions" exception.

Members of Congress were blunt about the purpose of JASTA. JASTA targeted the government for the Kingdom of Saudi Arabia, specifically to remove obstacles to litigation and enforcement by victims and families of victims of the September 1 1 1h attacks. Plaintiffs alleged that prominent Saudi officials have taken steps to channel funds to the ultimate perpetrators of the attacks. The discretionary functions exception barred suits against the Kingdom of Saudi Arabia based on the alleged actions of these agents.

Congress passed JASTA over the significant objections ofthe Obama administration. Representatives of the State Department warned that JASTA would prompt reciprocal changes in the law of other nations that would expose the United States to suits and enforcement in other countries' courts.1 76 President Obama vetoed the legislation and was overridden by a Congressional supermajority." The State Department's dire predictions did not come to pass, although this is likely owed to the particular diplomatic relationship between the United States and the Kingdom of Saudi Arabia.

Amendments to the Anti-terrorism Act (ATA) have followed a similar pattern, albeit over a shorter and more recent period. Congress enacted the ATA in 1990,178 motivated by acts of terrorism allegedly sponsored by the Palestinian Liberation Organization (PLO).1 79 The ATA changed many of the background assumptions of tort and procedure, including doctrines of forum choice and damages. It remained relatively undisturbed until 2018.

In 2018, Congress passed the Anti-Terrorism Clarification Act (ATCA),1 80 which made several significant alterations to the ATA statutory scheme. In particular, Congress overhauled the approach to personal jurisdiction for ATA suits.' 8 ' Congress created a unique system of federal consent jurisdiction in which any entity that, for example, received certain forms offoreign aid was deemed to have consented to the power of a U.S. court.1 2 As with the original ATA, the ATCA was aimed squarely at the PLO and the Palestinian Authority (PA). 83

Congress seemed to miss the mark. The Trump administration had already cut off many forms of aid to the PLO and PA.18 4 The PLO and PA announced that they would not accept any U.S. aid that would subject them to the jurisdiction ofU.S. courts. Congress returned to ATA and the ATCA at the end of 2019. Congress enacted the PSJVTA, which purported to expand the powers created under the ATCA, while narrowing its scope.1 85 The PSJVTA created new conditions for consent to jurisdiction.1 86 Most notably, it premised consent to jurisdiction on so-called "martyr's the families of fund" payments-money paid

to perpetrators or

perpetrators of terrorist attacks.18 7 The PSJVTA would authorize jurisdiction even if the attacks, the tortious activities, and the payments that triggered consent all took place beyond the territory of the United States. However, the PSJVTA narrowed the universe of potential defendants covered by the statute to only the PLO, PA, and any entity claiming to represent the Palestinian people.'

It is too early to tell whether the experimental impulse reflected in the ATCA and the PSJVTA will become normalized over time. However, courts are likely to expand the principle embodied in the ATCA and PSJVTA to other areas of law, perhaps even moving before the elected branches. As for the innovations embodied in JASTA, Congress has already started to export them into other areas of law.

B. Expansion by Courts

Legislatures are in the process of expanding the innovations of terror regulation into other areas of private law. However, courts may play just as active a role in spreading these innovations. The ATCA and PSJVTA provide particularly fertile ground for such judicial cross-pollination. The ATCA will force U.S. courts to consider the restrictions of personal jurisdiction imposed by the Fifth Amendment to the United States Constitution. U.S. courts will take up these questions in the context of terror regulation but are then likely to export those constitutional law holdings to other areas of law.

In the United States, jurisdiction to adjudicate claims is principally constrained by the Fifth and Fourteenth Amendments to the United States Constitution. The Supreme Court confirmed in Shaffer v. Heitnerthat all assertions ofjurisdiction to adjudicate, whether personal, in rem, consent, or another form ofjurisdiction, are subject to some form of constitutional inquiry.1 89 The Fourteenth Amendment governs assertion ofjurisdiction in state courts 90 and by federal courts sitting in diversity.191 The Fifth Amendment to the Constitution governs assertions of jurisdiction by federal courts applying federal law.1 92

The United States Supreme Court has produced dozens of rulings on the constraints imposed by the Fourteenth Amendment. In recent years, the Court has returned to this subject repeatedly, producing Goodyear,193 Nicastro,194 Daimler,195 Walden,196 BMS,197 BNSF,198 and Ford.199 Indeed, the Court's restrictive approach in Daimlerand Walden directly prompted congressional action in the ATCA. 20 0 The Court has never squarely decided on the nature of constraints imposed by the Fifth Amendment.

The Court has held that the Fifth and Fourteenth Amendments impose different constraints. The Federal Rules of Civil Procedure require that federal courts follow the jurisdictional analysis of the states where they sit in most cases, effectively requiring federal courts by statute to adhere to the requirements of the Fourteenth Amendment. 20' However, the Rules authorize federal courts to ignore the boundaries of the state where they sit in some instances, such as where a party is joined under Rule 14 or Rule 19.202 In that instance, the Rules permit a federal court to reach out 100miles from the courthouse, potentially crossing state boundaries. 20 3 This is permissible under the Fifth so-called the Fourteenth Amendment,

"100-mile bulge although

it would clearly violate

rule"

Amendment. 2 04 In other words, the Fifth and Fourteenth Amendments impose different restrictions, and the Fifth Amendment is the only constitutional constraint on those differences might be, except for the 100-mile bulge and other variations specifically permitted under Federal Rule of Civil Procedure 4(k), is largely unexplored.

federal courts; however, what

The ATCA and PSJVTA will require U.S. courts to take up the jurisdictional constraints of the Fifth Amendment. Indeed, there was strong support for the U.S. Supreme Court to take up the Sokolow case before Congress even passed ATCA. 2 0 ' After ATCA was passed, the case made its way back to the certiorari stage before the Court.206 Then Congress passed the PSJVTA, prompting the Court to remand once again for the lower courts to consider the PSJVTA in the first instance. 207 There will be intense pressure for the Court to take up Sokolow when it again reaches the Court, particularly if the lower courts hold that the Fifth Amendment does not permit the assertion ofjurisdiction or split on the issue. The ATCA will require the Court to take up several important issues of constitutional law, including the ways in which personal jurisdiction differs under the Fifth and Fourteenth Amendments and whether legislatures' power to define and is constrained by the Constitution, and if so, to what extent.

impose consent jurisdiction

U.S. courts will not treat these holdings as limited to the ATCA or to terrorism regulation. In the United States, jurisdiction to adjudicate is a matter of constitutional law. 208 Courts therefore reflexively treat holdings on jurisdiction as trans-substantive. In other words, U.S. courts are very likely to apply holdings on the constraints of the Fifth Amendment on personal jurisdiction across all areas of substantive law.

The implications for other areas of private law are profound. If the Court takes this opportunity to explore the exact differences between the Fifth and Fourteenth Amendments, it would be answering in the context of terrorism regulation a pressing question across all areas of personal jurisdiction. If the Court continues to treat the two amendments as mostly congruent, its ATCA holding would shape currently pending disputes on important state assertions of jurisdiction, particularly the hotly debated

issue of corporate registration statutes which require that foreign corporations consent to jurisdiction in the state. Either way, the Court's holding will determine to what extent the federal government may use assertions ofjurisdiction by consent in other areas, such as in the pending Foreign Manufacturers Liability and Accountability Act (FMLAA), which would authorize a similar jurisdiction by consent regime in products liability suits.

Ifthe federal courts hold that the Fifth Amendment permits assertions ofjurisdiction like those in ATCA, this very decision is likely to embolden Congress by opening a plain pathway for statutory authorizations of jurisdiction that evade the restrictions imposed by the Court in cases like Daimler and Walden. If the federal courts hold that the Fifth and Fourteenth Amendments permit ATCA style jurisdiction, state legislatures are also likely to follow suit.

C. Expansion by Legislatures

Courts have the potential to spread innovations in terror regulation into other areas of private law, but Congress is already doing so. 209 In 2019 and 2020, members of Congress introduced three bills inspired by the provisions of JASTA. Two bills concerned liability for harms associated with COVID-19. 2 1o One concerned acts of cyberespionage. 2 11 All three bills adopted, among other provisions, JASTA's unique approach to immunity stripping based on the acts of agents.

sovereign-sponsored

The COVID-19 pandemic produced multiple suits by various government and non-government plaintiffs seeking relief against the People's Republic of China (PRC) and related entities.212 The first suits filed were class actions that would likely not have survived class certification and failed to deal with the biggest obstacle, the PRC's 3 sovereign immunity under the FSIA.2 1 The Missouri Attorney General

brought another suit that sought to evade the PRC's sovereign immunity by naming the Communist Party of China (CCP) as the principal defendant, alleging that the CCP "exercised direction and control" over the other defendants. 214 Perhaps realizing that this was an uphill climb, the Missouri suit also sought to fit the alleged conduct within the FSIA's commercial activity and territorial tort exceptions, although these arguments also faced serious problems.2 1 s

Missouri may have recognized that the more likely path forward was legislative. Senator Josh Hawley introduced the Justice for Victims of Coronavirus Act, in the words of the Senator's office, to "hold the Chinese Communist Party (CCP) responsible for causing the COVID-19 global pandemic." 2 16 The bill would "strip China of its sovereign immunity and create a cause of action against the CCP for reckless actions like silencing whistleblowers and withholding critical information about COVID-19[,]" and "would also create the Justice for Victims of Coronavirus Task Force at the State Department to launch an international investigation into Beijing's handling of the COVID-19 outbreak and to secure compensation from the Chinese government." 217 Senators Marsha Blackburn and Martha McSally co-sponsored the "Stop China-Originated Viral Infectious Diseases Act of 2020" (Stop COVID Act of 2020) which "would create an exception to sovereign immunity where a foreign state is alleged 'whether intentionally or unintentionally, to have discharged a biological weapon. "'218

Professor Chim6ne Keitner chronicled these bills

in real time, testified against them in Congressional hearings, and described them as "[a]nother JASTA." 219 Keitner expressed guarded optimism about the State Department proposal-though while noting that it did not require a new statute-but unequivocally condemned the immunity stripping provisions. Keitner argued that "Congress cannot create an exception to foreign sovereign immunity every time the United States is adversely affected-even catastrophically-by another country's actions[,]" and that "[n]ot only would this likely violate international law, but it would virtually guarantee reciprocal lawsuits in other countries' courts."220

Congress also considered another JASTA for cyberespionage, the Homeland and Cyber Threat Act (H.R. 4189, or HACT Act). The HACT Act "would allow private lawsuits against foreign states for alleged unauthorized cyber activity."22' In several recent cases, the FSIA has barred suits by victims of "malicious cyber activity" where "a foreign state or state-sponsored actor [has] play[ed] a role in committing malicious cyber activity against a U.S. person or entity . ... "222 The HACT Act would have created "an FSIA exception to allow a U.S. national to seek money damages from a foreign government for personal injury, harm to reputation, or damages or losses to property resulting from malicious cyber activity (regardless of whether the activity occurs in the United States)" and would have covered "broad categories of activity," including "everything from unauthorized access to a U.S.-based computer, to damage to computers due to various forms of malicious cyber activity, to the provision of material support for such activity. "223 This liability is neither conditioned on a finding of intent nor on any defined standard of attribution. Commentators described as "fundamentally flaw[ed]." 2 2 4 Nonetheless, it "enjoy[ed] broad bipartisan support from a wide range ofmembers across the ideological spectrum ...

the bill

."225

Professor Keitner, among others, leveled several criticisms at JASTA that apply with equal or stronger force against these new immunity stripping bills. The FSIA is the only source of immunity for foreign sovereigns in U.S. courts. 2 26 The United States does not extend this immunity to foreign sovereigns as a matter of charity.227 Rather, the United States benefits from a general trend toward reciprocity. The United States shields foreign sovereigns from suit in its courts in the hopes that the United States itself will be shielded from suits in foreign courts.228 (The United States likely has more asset exposure abroad than any other nation.) 229 Exceptions in the original FSIA were narrowly crafted to affect

particular policy objectives. For example, the commercial activity exception was narrowly crafted to encourage cross-border commercial transactions in which a sovereign or its organ or instrumentality was a participant.

The terrorism exception was subject to an important constraint-it applied only to nations designated by the State Department as state sponsors ofterrorism. This limitation blocked suits by families of victims ofthe September 1 1th attacks against Saudi Arabia, which had not been so designated. JASTA eliminated this constraint for "any foreign state whose wrongful act causes an act of international terrorism in the United States . ."230 Commentators have argued that JASTA undermined intelligence, .. security, and diplomatic goals. Nonetheless, JASTA did not prompt a dramatic reciprocal response from Saudi Arabia. And to this point, JASTA does not appear to have prompted a raft of suits against the United States, though this may reflect that the United States is not a leading sponsor of international terrorism.

The United States government has been a leading purveyor of cyberespionage and COVID-19 denialism. These new extensions of terrorism-style immunity stripping threaten to "declare a free-for-all in disregarding traditional principles of sovereign immunity for conduct the in, which the trend toward immunity-stripping U.S. itself engages legislation could eventually threaten to do." 2 3

Chimene Keitner and Allison Peters argued that the HACT Act suffers from three serious flaws. First, the "categories of malicious cyber activity covered in this bill are so broad that they would include activity that the United States itself intentionally and legitimately conducts on a regular basis." 2 32 Second, "broad categorization of acts that would expose a foreign state to litigation could also expose the U.S. or its allies to litigation for unintentional actions such as the accidental release of malware or other cyber tools." 233 And third, "the HACT Act fails to include any standards for who can authoritatively attribute the harmful activity to a particular foreign state." 234 Attribution is both a technical and diplomatic decision. The HACT Act leaves the role ofthe Executive, and its ability to weigh policy and political concerns, out ofthe picture. Keitner and Peters argued against the HACT Act's turn toward a private law solution and in favor of classically public solution: an expanded role for the diplomatic core and public intervention, such as espousal of claims. 235

Professor Keitner leveled similar critiques against the COVID-19 immunity stripping bills in her testimony before Congress. 236 Again, she made three main points, that the "United States has more to lose than any other country by removing the shield of foreign sovereign immunity for a pandemic," that "[p]rivate litigation will not bring China to the negotiating table, and it will not produce answers or compensation for U.S. victims," and that "Congress should focus on the inadequate federal response to COVID-19, and on restoring U.S. leadership in global public health." 237 In her answers to questions from the Senate Judiciary Committee, Professor Keitner noted that private claimants had already filed COVID-19 based suits against the United States in Chinese courts and that, though the Chinese view of foreign sovereign immunity blocked these suits, the National People's Congress had ordered a study of possible changes to immunity law. 238 Professor Keitner also noted that Iran had already taken that step, authorizing massive (though as of yet unenforced) private judgments against the United States. 2 39

The path ofterror regulation through public law is well known. Terror regulation has followed a similar path through multiple areas of private law in recent years. Yet, there are significant differences between private and public law, particularly in the players and pathologies in these somewhat different spheres.

economy. "240 Although

"[T]he distinction between public and private law" is "related to the distinction may be more political "fundamental" in civil law systems, it remains "meaningful" in the "common law world." 24 1Yet, the distinction between public and private law is somewhat slippery. As John C. Reitz observes, a common approach to the distinction "between private and public law states that private law governs the relationship between the state and its citizens when they are not in a relation of equality because the citizens are to be treated as subjects ofthe state." 242 In civil law systems, the distinction tends "to turn on the special nature of the rules in public law, which are different from the rules of

relationships among equals, but public

law governs

private law and therefore grant the state certain special or 'prerogative' rights by comparison with the rights that private parties have under private law." 2 43

raised by

the criminal material

Scholars have written volumes "about the War on Terror's erosion of public law, particularly in the areas of constitutional, criminal, and immigration law." 244 In constitutional law, scholars have explored "constitutional concerns support statutes[,]" in particular on how "broad definition[s] of 'material support"' undermine "paradigmatic free speech and association rights[,]" "religious freedom protections[,]" and "Fourth Amendment privacy rights." 245 In criminal law, scholars have observed that "terrorism exceptionalism" is eroding "traditional investigatory practices, notions of liability, due process protections, as well as incarceration norms[,]" leading to "rampant informants[,]" criminalization of use of suspicion-less spying and activities "which are not otherwise dangerous or directly linked to the commission of terrorist violence[,]" and "the application of terrorismspecific sentencing enhancements mandating exceedingly long prison terms for defendants."246 In immigration law, scholars have observed that "post-9/11 counterterrorism objectives" have led to a "near complete ... subordination of immigration and immigration policy to terrorism policy[,]" producing "a steep rise in ethnic and religious profiling in immigration law enforcement and an increase in restrictive immigration

practices."24'

The dynamics of private law are different, although the impact of

those differences is only now becoming apparent.

A. From Individuals to Corporations

Terrorism litigation in U.S. courts on behalf of U.S. nationals typically invokes the ATA. Terrorism litigation in U.S. courts on behalf of foreign nationals has frequently invoked the Alien Tort Statute (ATS). Indeed, the two categories of claims have been joined together in the same suits. However, ATA and ATS claims have met with very different fates. The reasons for the divergence are rooted in the shift from using private law to police individuals to corporate multinationals. The demise of the ATS as a source of private law liability for terrorism and other violations ofinternational law contains a cautionary tale for the future of the ATA.

The first federal law on the judiciary, enacted in 1789, contained the following provision: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 2 48 This "sparse and opaque"249 provision "had been an enigmatic relic of no practical significance."2 so In the 1970s, human rights advocates unearthed the ATS as a means to enforce international human rights law through private litigation.

These efforts bore fruit in the United States Court of Appeals for the

Second Circuit's decision in Fildrtigav. Pena-Irala.25 1 The court held, with the support of the Carter Administration, that "as a jurisdictional matter [] foreign nationals could sue one another in U.S. courts for international-human-rights violations occurring abroad. "252 The Fildrtiga case involved "claims by private persons against a government official for acts that could violate international law only if they involved an exercise of official authority."253 This aspect of Fildrtiga'sholding was adopted into statute when Congress enacted the Torture Victims Protection Act (TVPA) in 1992.254 However, the scope of the ATS remained a mystery.

The first hurdle was whether the ATS could be expanded to individuals not acting under state authority. The United States Court of Appeals for the Second Circuit crossed that "threshold" in Kadic v. Karadzi6,holding that the leader of an unrecognized state of Srpska could be held liable for acts of genocide, crimes against humanity, and war crimes. 255 A federal district court took "the next logical step" only two years later, extending the ATS to cover corporations as "private legal persons" that "had the capacity to violate international law and thus to be

held accountable through tort suits." 25 6 More suits against corporations followed.

In 2004, the Supreme Court began a long campaign to narrow the ATS and to eliminate suits against corporations, while preserving suits akin to Fildrtiga.In Sosa v. Alvarez-Machain,the Court held that liability for international law violations could extend only to claims "based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features ofthe 18th-century paradigms we have recognized[,]" such as offenses against ambassadors, violations of safe conduct, and piracy. 25 7 Nonetheless, ATS litigation against private corporations seemed to increase.

The Kiobel v. Royal Dutch Petroleumcase seemed to put the case of corporate liability under the ATS squarely before the Supreme Court. A panel for the United States Court of Appeals for the Second Circuit had held that "customary international law did not recognize corporate responsibility for international crimes, and hence the ATS did not support a cause of action for suits against corporations." 2 The Supreme Court granted certiorari on that question. At oral argument, the Court ordered additional briefing and another argument on whether the ATS reached conduct occurring abroad.2 59 The Court then decided the second question and ducked the first, holding that "even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application [of U.S. law]." 260

The Kiobel decision was a setback for ATS litigation against both corporations and individuals. The ATS is limited to claims brought by alien plaintiffs. Most ATS claims against individuals or corporations had been based on conduct occurring abroad. The Supreme Court's skepticism of international human rights litigation against corporations seemed to have undermined not only corporation litigation, but also suits against individual conduct abroad that had been considered only a modest extension of Fildrtiga.

Meanwhile, decisions in other areas seemed designed to prune suits against

litigation while preserving

corporate human

rights

individuals. In Mohamadv. PalestinianAuthority, the Court held that the TVPA's imposition of liability on an "individual," did not "contemplate[] nonsovereign organizations." 261 In Daimler v. liability against Bauman-anotherinternational human rights suit-the Court dramatically restricted general personal jurisdiction over corporations, which had been an essential ingredient for many types of transnational suits against corporate multinationals.262

...

The Court dealt a near-fatal blow for corporate human-rights litigation under the ATS in Jesner v. Arab Bank, PLC.263 The Court held that the ATS could not support any claim grounded in customary international law against a foreign corporation, although the majority splintered in its reasoning. The Court left only the narrow possibility of ATS suits against a domestic corporation.

Most recently, the Court decided Nestld USA, Inc. v. Doe.264 The Court had decided in Kiobel that the ATS did not apply extraterritorially. The Court now took up the question of what might constitute a domestic application of the ATS. The Court held that corporate "operational decisions" in the United States were insufficient to establish that the ATS was being applied domestically. 265 Once again, the Court included language that, if taken literally, could undermine ATS suits against individuals. Justice Thomas's opinion for eight members of the Court seemed to suggest that a domestic application of the ATA must involve domestic conduct, as opposed to other possible domestic connections that might be the "focus" of the ATS. 266 If that is so, it could eliminate practically all ATS suits against individuals, including cases like the seminal Fildrtigadecision, where the conduct occurred abroad, but the perpetrator then sought refuge in the United States. 26 7

The story of corporate human rights litigation stands as a cautionary tale. International human rights advocates unearthed the ATS as a potent tool against individuals. They then turned to corporate multinationals, kicking off a 15-year period of retrenchment led by the Supreme Court.

The Court's skepticism insulated corporate multinationals from ATS claims but also had spillover effects into other forms of international human rights litigation. ATS litigation against individuals has been curtailed by the Court's decision in Kiobel, among others. Many forms of transnational litigation against corporations have been cut off by the Court's decision in Daimler,which was premised in part on ATS claims.

B. From Terroriststo Banks

Most terrorism legislation was initially passed to directly affect alleged terrorists. The Achille Lauro hijacking prompted legislation designed to combat the activities of the PLO. The bombing of Pan Am Flight 103 prompted legislation aimed at Hamas and other Iranian-backed groups. The September 1 1th attacks produced legislation aimed at Al Qaeda. In each instance, U.S. lawmakers envisioned alleged terrorist groups themselves as the defendants in private civil actions that were being authorized or expanded.

In some instances, lawmakers viewed this legislation as essentially symbolic. This expectation likely sped passage of the ATA itself. Even the bill's sponsors were not confident that judgments obtained under the ATA would ever be successfully enforced against foreign entities like the PLO. But symbolism matters, especially in politics. Nevertheless, the debates on the passage ofthe ATA do not suggest that the statute might have teeth for entities other than the alleged terrorists themselves and, perhaps, not even for them.

Over time, the focus of these statutes, and the paradigmatic defendants in the private actions they authorize, have shifted from alleged terrorists to corporate multinationals. The two groups that have found themselves most directly affected are financial intermediaries and social media companies. In the words of one prominent banking lawyer: "So banks are terrorists now?" 268

The forces behind this shift are both intentional and not. After the September 1 1th attacks, a series ofstudies revealed the expansive financing network that enabled the terrorist attacks. These revelations prompted legislative interventions aimed at detecting and policing the terrorist financing networks that, in some cases, even the staff of the 9/11 Commission regards as overaggressive and potentially misguided. 269

The courts have prompted unintentional shifts in the focus of terrorism regulation away from alleged terrorists and toward corporate multinationals. The U.S. Supreme Court's decision in Daimlerv. Bauman

now carries a long list of unintended consequences. In Daimler,the Court eliminated "doing business" jurisdiction.270 Under the old "doing business" standard, a court could constitutionally hale a foreign party into court if it had "continuous and systematic" contacts with the forum. 27 1 These contacts need not have been extensive. For example, a leased sales office with a handful of temporary employees would suffice. "Doing business" was, however, a common basis for jurisdiction in U.S. courts and a background assumption of much legislation.

In Daimler, the Court cut the trunk of "doing business" jurisdiction to the ground without much care for the legislation that had grown up around it. The ATA was among the statutes that had assumed the existence of "doing business" jurisdiction. There were at least four pending ATA cases against the PA and PLO when the Court decided Daimler.272 All four were proceeding under the basis of "doing business" jurisdiction. Eventually, all four were dismissed for lack ofpersonal jurisdiction. Some ofthose cases now carry on under the jurisdictional bases provided by the ATCA and, now, the PSJVTA.

The Daimler decision essentially removed the typical jurisdictional bases for haling alleged terrorists into U.S. courts for ATA claims. Plaintiffs therefore turned their attention to potential defendants with sufficient jurisdictional ties to a U.S. forum. In other words, they sued corporate multinationals: first banks, and later, social media companies.

"In search of identifiable and deep pockets, plaintiffs focus attention

at financial institutions that handle transactions for terrorist groups"multinational banks. 273 Litigation under the ATA overwhelmingly focuses on three broad classes of cases: "Those involving financial services that directly benefit terrorist organizations and include non-routine bank services on behalf of the terrorist group; those that involve routine financial services with the terrorist organization such as are done predominantly, if not entirely, by computers; and those that involve violations of laws regarding financial transactions with nation states sponsoring terrorism."274

The Linde v. Arab Bank case "best represents a situation of active interaction between the bank and the terrorist organization," where "the court required some kind of plausible linkage between the bank's conduct and the terrorist act." 275 Litigation against the Bank of China "represents a

middle ground," in which "the bank was informed that it was making financial transactions on behalf ofterrorist organizations, but persisted in providing services."276 The Rothstein case "arguably represents the weakest case for plaintiff," in which the court held that "currency transfers into state sponsors of terrorism in violation of U.S. law does not satisfy requisite proximate cause as regards terrorist attacks that were allegedly funded by the state sponsor of terrorism." 277

This dynamic means that multinational financial institutions are directly interested in and affected by private law regulation of terrorism. In modern market economies, financial institutions exert great power on the lawmaking process, even in areas that affect them less directly. Douglass North pioneered the institutional economics of this field.278 The study ofhow these differences in economic institutions lead to differences in law generation and reform is sometimes referred to as "new comparative economics."279 (Though some theorists in the field rejected the usefulness ofthe private/public distinction outright.) 2

In this account, the United States is "a financialized economy, where the financial sector and its priorities have become increasingly dominant in all aspects of the economy. "281This "financialization" is described "as a process of income redistribution" that allows "rent seeking by an increasingly concentrated and politically influential finance sector ... leading to the pooling of profits and income in the finance sector. "282

The United States has essentially

leaned into this process of "financialization" of its political economy, placing the "emphasis over the on bringing about greater integration of regulatory agencies." 2 83 years ... In the aftermath ofthe 2008 financial crisis, the U.S. Treasury Department proposed a set of institutional reforms referred to as the "Paulson Plan." 28 4

The Paulson Plan proposed "a new Prudential Financial Regulatory Authority (PFRA) that would be responsible for the safety and soundness of individual firms with some type of explicit government guarantee of their business operations (e.g. banks and insurance companies)[,]" as well as "a consolidated business conduct regulator (a Conduct of Business Regulatory Agency or CBRA) [that] would be responsible for monitoring the business conduct of all financial firms." 2 5 The CBRA was created in an "attenuated form ofthe Consumer Finance Protection Bureau (without the addition of the consumer protection role of the SEC and CFTC as originally envisaged)." 286 However, "few of the other ideas embodied in the Paulson Plan survived into the Dodd-Frank Act[,]" due to "a change of administration, the lobbying of industry groups that had established close regulatory agencies, and reluctance of Congressional committees to abandon their oversight role of specific agencies ....

links with existing

Mark Roe may have provided the most compelling account of the pre-2008 crisis of U.S. resistance to the "financialization" of its political economy in his book "Strong Managers, Weak Owners." 2 Roe argues that "the structure of the large firm is highly sensitive to the structure of financial intermediaries, which in turn is highly sensitive to law." 289 In Roe's account, the structure ofthe American corporation is shaped by both economics and law. Roe "suggests that American politics made it difficult or impossible for financial intermediaries" to "either to become large enough to hold substantial blocks of common stock or, if large enough and allowed to hold such blocks, effectively to exercise a powerful owner's voice in the governance of American corporations."290 Rather, financial intermediaries were "fragmented" among "dispersed owners, including financial institutions" who could not "easily coordinate their activities." 291

This fragmentation among financial intermediaries was a significant factor in the "development of the American political economy."292

K. Sabeel Rahman's account of the post-crisis political economy of private law stands in stark contrast to Roe's pre-crisis history.2 93 Rahman argues that, "[f]rom the standpoint of domination and power, one of the the central problems of today's political economy is increasingly the "too-big-toincluding concentrated power of corporations," fail banks." Rahman observed that "we live in an era marked by new forms ofwhat Brandeis famously called 'the curse of bigness."' 2 94

C. From General to SpecialLegislation

ATCA and the Iran Threat Reduction Act address different areas of private law but share an important and troubling similarity. Both statutes grant broad powers but over a very narrow class of defendants. They are both examples of legislation that targets a single nation, single defendant, or even a single case. This type of law is referred to as "special legislation." 295

A divided Supreme Court upheld the constitutionality of one example of special legislation, the Iran Threat Reduction Act, in Bank Markazi v. Peterson.In the Iran Threat Reduction Act, the elected branches sought to intervene not only against a single party, but in a particular lawsuit. The Supreme Court held, six to three, that this did not offend the separation of powers and judicial independence. 296

legislation, that

The Supreme Court "does not recognize a constitutional principle disfavoring special legislation that singles out identifiable individuals for benefits or harms that are not applied to the rest of the population." 297 Evan Zoldan has argued that as "a result, both Congress and state legislatures routinely enact special legislation despite the fact that it has been linked to a variety of social harms, including

is,

corruption and the exacerbation of social inequality." 298 Zoldan argues that special legislation is constitutionally disfavored and goes on to lay out a normative framework for distinguishing good special legislation from bad. Special legislation is "costly when it reflects the corruption of the legislative process and leads to low-quality legislation, unjustifiably unequal treatment, and legislative encroachment on the judicial and executive functions." 299 However, "special legislation is normatively attractive when it addresses a problem unique to a particular location, when it addresses a matter of public concern, when it reduces rather than exacerbates disuniformity in the law, and when it provides relief for underrepresented political minorities." 300 Zoldan argues that, although special legislation is not all bad, it is recklessly overused, constitutionally suspect, offends principles of equal treatment, and should be curtailed by courts and by modifications ofthe legislative process. 301

The ATCA fares poorly on these metrics. The poor drafting of the ATCA led to it causing unintended problems for international non-

for

governmental entities.302 Even more telling, the statute was essentially ineffective-on-arrival the Trump Administration had essentially already eliminated the aid and other assistance that would have triggered jurisdiction over the PLO and PA. These defects led the to the legislation to clarify the Anti-Terrorism Clarification Act, the PSJVTA.

intended purpose,

its

as

The clarification to the clarification had its own problems. Indeed, these shortcomings sharply illustrate the dangers of special legislation. Congress broadened jurisdictional triggers of the statute significantly, making them more aggressive, less tied to any nexus to the United States, and more vague. These expanded and opaque powers were rendered palatable by the PSJVTA's explicit narrowing ofits scope to the PLA, PA, or any entity holding itself out as representing the Palestinian people. The ATCA had always been directly motivated by cases against the PLO and PA-there was no mystery about that-but the PSJVTA dropped all pretense of legislative generality and was therefore able to embrace even broader powers. And even then, the quality of the legislative drafting remained poor, failing to adequately describe which provisions of the previous version of the statute were still in effect.

This combination of broad powers with narrow targeting is typical of terrorism legislation. This pattern is a natural outgrowth of the political

economy of terrorism legislation, which involves highly sympathetic plaintiffs and strongly disfavored defendants, similar to the welldocumented problems of criminal and immigration legislation. The political economy of terrorism legislation is distinguished, however, by the fact that the disfavored defendants are frequently entities (rather than individuals) (particularly state or non-state governmental entities) and ascertainable beforehand. These characteristics encourage special legislation by enabling legislators to direct their effects to, say, the PLO or to Iran specifically, rather than to all criminal defendants generally.

that are well-defined

This is not to say that individual terrorists are not targets of private law terrorism legislation. But they are not the predominant targets. The types of remedies available under private law, particularly damages, are largely ineffective against individual actors. For various reasons, they are likely be judgment proof. Organizations that sponsor or provide material support to terrorism are a different story, however, and are, therefore, the most likely targets of terrorism legislation in private law. Terrorism defendants and targets of special

legislation may be disfavored for different reasons than targets of public legislation-for example, in the criminal or immigration areas. In public law legislation, certain groups are often disfavored because of structural deficits, such as institutionalized racism, persistent wealth disparities, or differing abilities to organize collectively. Disfavored entities in terrorism legislation-Iran, the PLO, or the PA, for example-may be quite powerful in some arenas. But due to diplomatic, geopolitical, or simply political conflict, they find themselves on the outside of the legislative process looking in. However, their status may change-and change more quickly than disfavored persons in the public law setting.

In private law terrorism legislation, the political economies of terrorism legislation and of private legislation meet. Private legislation in this area directly affects the interests of powerful, well-organized interest groups and financial intermediaries, particularly transnational banks. The "financialization" of the American political process has given financial intermediaries profound influence on the legislative process. As you would expect, they have been largely successful in resisting legislation that would expose them to significant tort liability. Indeed, the expansion of the ATA to banks was largely court-driven, rather than the product of new legislation.

In private terrorism legislation, however, financial intermediaries are up against the profound pressure to provide tangible relief to victims of terrorism. The financial intermediaries have responded not by trying to scuttle such legislation outright, but by narrowing it such that they have significant protections or, as in the amended ATCA, are not covered at all.

The pressures ofterrorism legislation produce aggressive, indeed unique, powers while the pressures of private law produce a narrow scope that excludes powerful groups and, sometimes, includes only one potential defendant.

Lawmakers' response to terrorism is based on the premise that the "struggle against global terrorism is different from any other war in our history." 3 Legislators and judges approach lawmaking for terrorism differently than any other area of law. These innovations take predictable forms-protections for defendants are loosened, the power of the state is expanded. Many of these innovations have divided lawmakers both on their advisability and their legality.

This Article has examined how those innovations do not remain at home in terrorism regulation, but rather spread into other areas of law, such as cyberespionage and public health. This phenomenon is well known in public law but has not before been examined across multiple areas of private law, which many think of as insulated from political pressures. In fact, terror regulation has served as a laboratory and proving ground for innovations in private law as well.

It is difficult to condemn every aspect of terror regulation's spread into other areas ofprivate law. Some ofthese innovations may be broadly beneficial. Nevertheless, their origins in terror regulation should give us pause, precisely because lawmakers treat terror regulation so differently from other areas of law.

Some problems are already plain. When the political economy of terror regulation collides with that of private law, a rise in special legislation is the predictable result. Special legislation threatens to subvert rule of law values and encourage the passage of poorly drafted laws. The ATCA is only one example. It is not alone now-and there will doubtless be more like it.

--- FOOTNOTES ---

ABSTRACT

* Assistant Professor, Willamette University College of Law; Director, The Business Lawyering Institute at Willamette University; Affiliated Scholar, The Classical Liberal Institute at NYU School of Law. I owe great thanks to Pamela Bookman, John Coyle, Jeff Dobbins, Bill Dodge, Maggie Gardner, Andrew Gilden, Maryam Jamshidi, Chimene Keitner, Alyssa King, Karen Sandrik, Linda Silberman, Shirin Sinnar, Symeon Symeonides, and to all the participants in the Pacific Northwest Junior Scholars' Workshop, the Brooklyn Law School Business Law Scholar's Roundtable, the Rocky Mountain Junior Scholars' Conference, the Northwestern Pritzker School of Law Civil Procedure Workshop, the annual Conference for Northern California International Law Scholars, and the American Association of Law Schools Annual Conference's panel on "Changing Concepts of International Economic Security &the Law." I am deeply grateful to Mary Rumsey and Andie Harrison-Doherty for outstanding research assistance.

INTRODUCTION.................................................................................................. 161 I. TERROR POLICY IN PRIVATE LAW.................................................................. 165 A. Tort ................................................................................................... 166 1. Statutory Codification............................................................... 166 2. Causation .................................................................................. 169 3. Damages.................................................................................... 170 B. Procedure ......................................................................................... 17 2 1. Jurisdiction................................................................................ 173 2. Immunity................................................................................... 179 3. Forum Choice ........................................................................... 183 185 1. Confidentiality and Bookkeeping ............................................. 186 2. Freezing and Forfeiture............................................................. 186 II. THE PATH OF TERROR REGULATION IN PRIVATE LAW.................................188 A. Exceptionalism andNormalization.................................................. 188 B. Expansion by Courts........................................................................ 191 C. Expansionby Legislatures............................................................... 194

C. Banking ............................................................................................

III. THE DYNAMICS OF TERROR REGULATION IN PRIVATE LAW REFORM ....... 198 A. From Individualsto Corporations................................................... 199 B. From Terrorists to Banks ................................................................. 203 C. From Generalto SpecialLegislation............................................... 207

CONCLUSION ..................................................................................................... 210

INTRODUCTION

1. See Gill v. Arab Bank, PLC, 893 F. Supp. 2d 474, 494 (E.D.N.Y. 2012) ("[L]egislative history indicates that the civil remedy provision became law in large part because of the Klinghoffer litigation." (citing Klinghoffer v. S.N.C. Achille Lauro, 739 F. Supp. 854 (S.D.N.Y. 1990), vacated, 937 F.2d 44 (2d Cir. 1991 .

2. See Maryam Jamshidi, How the War on TerrorIs TransformingPrivate U.S. Law, 96 WASH. U. L. REV. 559, 561 n.3 (2018) (noting that the Anti-Terrorism Act (ATA) "was passed before September 11th, 2001 but remained largely dormant before the attacks" (citing Seth N. Stratton, Taking Terroriststo Court: A PracticalEvaluation ofCivil Suits Against TerroristsUnder the Anti-TerrorismAct, 9 SUFFOLK J. TRIAL & APP. ADVOC. 27, 32 (2004 .

3. See The World's 10 Richest TerroristOrganizations,FORBES (Dec. 12, 2014, 1:00

PM), https://bit.ly/3tWbkPN.

4. See Jamshidi, supra note 2, at 559. Public law regulates interactions between the private citizen and the state-how people are taxed, policed, and surveilled, for example. Terrorism has become, for good or ill, a source of innovation inpublic law. See, e.g., Shirin Sinnar, ProceduralExperimentationandNationalSecurity in the Courts, 106 CAL. L. REV. 991, 994 (2018) ("[S]ome courts are experimenting with new approaches to review and manage government claims that information is too sensitive to be exposed in court.").

5. See Jamshidi, supranote 2, at 559 ("In thinking about the War on Terror's impact on U.S. law, what most likely comes to mind are its corrosive effects on public law, including criminal law, immigration, and constitutional law. What is less appreciated is whether and how the fight against terrorism has also impacted private law.").

6. See John C. Reitz, Centennial World Congress on Comparative Law: Political Economy as a MajorArchitecturalPrincipleofPublicLaw, 75 TUL. L. REV. 1121, 1142 (2001) ("[T]he dividing line between private and public law states that private law governs relationships among equals, but public law governs the relationship between the state and its citizens when they are not in a relation of equality because the citizens are to be treated as subjects of the state." (citing UWE WESEL, JURISTISCHE WELTKUNDE 118-19 (1984); A.L. MAKOVSKY & S.A. KHOKHLOV, INTRODUCTORY COMMENTARY TO THE CIVIL CODE OF THE RUSSIAN FEDERATION, at lvi, lvi-xcix (Peter B. Maggs & A.N. Zhiltsov eds. & trans., 1997 .

7. See generally JOHN GARDNER, FROM PERSONAL LIFE TO PRIVATE LAW (2018)

(arguing that private law pervades our personal lives).

8. The effect of terror regulation on public law has been profound and highly visible, scrutinized in both the popular press and academic literature. See, e.g., Charlie Savage, What Could a Domestic Terrorism Law Do?, THE NEW YORK TIMES (Aug. 7, 2019), https://nyti.ms/3byeOBL; Shirin Sinnar, Protecting Rights From Within? Inspectors Generaland NationalSecurity Oversight, 65 STAN. L. REv. 1027 (2013).

9. See THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 5 (2002) ("The struggle against global terrorism is different from any other war in our history .... Our priority will be first to disrupt and destroy terrorist organizations of global reach and attack their leadership; command, control, and communications; material support; and finances.").

10. See, e.g., Rebecca Ananian-Welsh & George Williams, The New Terrorists:The Normalisationand Spread ofAnti-TerrorLaws in Australia, 38 MELB. U. L. REv. 362, 362 (2014) ("Australia's federal Parliament has enacted a range of exceptional measures aimed at preventing terrorism. These measures include control orders, which were not designed or intended for use outside of the terrorism context. What has followed, however, has been the migration of this measure to new contexts in the states and territories .....

11. See 28 U.S.C.A. §§ 1602-1611 (West). 12. See infra Section I.B.2. 13. See Justice Against Sponsors of Terrorism Act ("JASTA"), Pub. L. No. 114-222,

130 Stat. 852 (2016) (codified at 28 U.S.C.A. § 1605B (West .

14. See Presidential Message to the Senate Returning Without Approval the Justice Against Sponsors of Terrorism Act, 2016 DAILY CoMP. PRES. Doc. 628 (Sept. 23, 2016) (stating that JASTA may "reduce the effectiveness of our response to indications that a foreign government has taken steps outside our borders to provide support for terrorism, by taking such matters out of the hands of national security and foreign policy professionals and placing them in the hands of private litigants and courts").

15. See JusticeAgainstSponsors ofTerrorismAct: Hearingon S. 2040Before the H. Comm. on the Judiciary, 114th Cong. (2016) (statement of Anne W. Paterson, Assistant Secretary of State for Near Eastern Affairs) ("While these efforts will continue, I am here today to explain why the Administration believes that JASTA is not the right path forward.").

16. 28 U.S.C.A. § 1605B(b)(2) (West). 17. See Chimene Keitner, Missouri'sLawsuitDoesn'tAbrogate China'sSovereign Immunity, JUST SEC. (Apr. 22, 2020), https://bit.ly/3tYdPkH ("Congress cannot create an exception to foreign sovereign immunity every time the United States is adversely affected-even catastrophically-by another country's actions. Not only would this likely violate international law, but it would virtually guarantee reciprocal lawsuits in other countries' courts.").

18. H.R. 4189, 116th Cong. (2019). 19. See Chimene Keitner & Allison Peters, PrivateLawsuitsAgainst Nation-States Are Not the Way to Deal With America's Cyber Threats, LAWFARE (June 15, 2020, 9:09 AM), https://bit.ly/3tYN9jI ("Legislators are understandably tempted to enact the [HACT Act], which would allow private lawsuits against foreign states for alleged unauthorized cyber activity. Yet this response is deeply misguided and would create more problems than it solves.").

20. See 18 U.S.C.A. §§ 2331-2339D (West); see also Jamshidi, supranote 2, at 561 n. 1 ("The ATA was originally enacted in 1990 but was repealed and reenacted in 1992 due to a technical error." (citing Federal Courts Administration Act of 1992, Pub. L. No. 102572, §1003, 106 Stat. 4506, 4521 (1992 .

21. See infra Sections IA, I.B.1, I.B.3.

22. See Aaron D. Simowitz, Defining Daimler'sDomain: Consent, Jurisdiction,and the Regulation of Terrorism, 55 WILLAMETTE L. REV. 581, 583 (2019) [hereinafter Simowitz, Defining Daimler] ("The most controversial and novel feature of the [Antito the conflict between personal Terrorism Clarification Act or "ATCA"] speaks jurisdiction and regulatory power. The ATCA proposes to create a system of transnational consent jurisdiction.").

23. See Aaron D. Simowitz, Jurisdictionas Dialogue, 52 N.Y.U. J. INT'L L. & POL. 485, 513-15 (2020) [hereinafter Simowitz, Jurisdiction as Dialogue] (discussing the Foreign Manufacturers Liability and Accountability Act or "FMLAA").

24. See Jamshidi, supra note 2, at 566 ("Much has been written about the War on Terror's erosion of public law, particularly in the areas of constitutional, criminal, and immigration law. Scholars have, for example, examined constitutional concerns raised by the criminal material support statutes." (citing David Cole, The New McCarthyism: RepeatingHistory in the War on Terrorism,38 HARV. C.R.-C.L. L. REV. 1, 10-15 (2003 . 25. See, e.g., Austen D. Givens, The NSA SurveillanceControversy:How the Ratchet Effect Can Impact Anti-Terrorism Laws, HARV. NAT'L SEC. (July 2, 2013), https://bit.ly/3tZ3fd8 ("The ratchet effect is a unidirectional change in some legal variable that canbecome entrenched over time, setting in motion a process that can then repeat itself indefinitely. For example, some scholars argued that anti-terrorism laws tend to erode civil liberties and establish a new baseline of legal 'normalcy' from which further extraordinary measures spring in future crises.").

J.

26. See OREN GROSS & FIONNUALA Ni AOLAIN, LAW IN TIMES OF CRISIS: EMERGENCY

POWERS IN THEORY AND PRACTICE 35-79 (2006).

27. See, e.g., Austen D. Givens, The NSA SurveillanceControversy:How the Ratchet

Effect Can Impact Anti-Terrorism Laws, HARV. NAT'L SEC. https://bit.ly/2VnMYCM.

J.

(July 2, 2013),

28. See Mariano-Florentino Cuellar, The PoliticalEconomies ofImmigrationLaw, 2 UC IRVINE L. REV. 1, 7-8 (2012) ("Consider: if the landmark 1990 Immigration Act that raised worldwide ceilings for immigration illustrates how American immigration policy is far from a one-way ratchet fueled by restrictionist sentiment, it is also quite plain that such a statute ... would stand little chance of passage today.").

I. TERROR POLICY IN PRIVATE LAW

29. See Simowitz, Defining Daimler, supranote 22, at 582-83 ("Congress passed the Anti-Terrorism Act (ATA) to enable private claimants to overcome 'jurisdictional hurdles' in bringing private actions against the alleged perpetrators of international terror. With the intended targets of the ATA unavailable, the ATA has become a statute about multinational banks.").

30. 18 U.S.C.A. § 2333(a) (West). 31. See, e.g., Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 937 F.2d 44, 47 (2d Cir. 1991) (setting out the factual and procedural history of the Klinghoffer case).

32. See Klinghoffer, 937 F.2d at n.2. 33. See H.R. REP. No. 102-1040, at 5 (1992). 34. Klinghoffer, 937 F.2d at 51.

35. Id. at 51-52. 36. For example, in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775 (D.C. Cir. 1984), the Court of Appeals for the D.C. Circuit held the District Court properly dismissed an action brought by Israeli citizens who were victims and representatives of victims murdered in an armed attack on a civilian bus in Israel seeking compensatory and punitive damages from various Arab organizations for tortious acts in violation of law of nations, treaties of the United States, and criminal laws of United States, as well as common law.

37. See generally GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES

(1982).

38. Caroline Forell, Statutory Torts, Statutory Duty Actions, and NegligencePerSe:

What's the Difference?, 77 OR. L. REv. 497, 497 (1998).

39. See Tel-Oren, 726 F.2d at 774. 40. See supranote 36; see also Christopher J. Robinette, Introduction,17 WIDENER

L.J. 705, 706-07 (2008) ("[C]riminal law is statutory; torts is mostly common law.").

41. Mark A. Geistfeld, Tort Law in the Age of Statutes, 99 IOWA L. REv. 957, 960

(2014).

42. See id. 43. See, e.g., International Emergency Economic Powers Act (IEEPA), 50 U.S.C.A.

§§ 1701-1702 (West).

44. See Quinton Cannon Farrar, U.S. EnergySanctions andthe Race to PreventIran from Acquiring Weapons of Mass Destruction, 79 FORDHAM L. REV. 2347, 2372 (2011) (noting that the Obama administration viewed sanctions authority as important "not necessarily to impose sanctions per se, but rather to use them as credible diplomatic leverage").

45. See Allison Taylor, Another Front in the War on Terrorism? Problems with Recent Changes to the ForeignSovereign ImmunitiesAct, 45 ARiz. L. REV. 533, 540 (2003) ("The [Clinton] Administration claimed that diplomatic assets could not be released because they were protected by international agreements, and frozen assets could not be released because they were a valuable foreign policy tool and possibly subject to other claims by U.S. nationals.").

46. See Sean K. Mangan, Compensationfor "Certain" Victims of Terrorism Under Section 2002 ofthe Victims ofTrafficking and Violence ProtectionAct of 2000: Individual Payments at an InstitutionalCost, 42 VA. J. INT'L L. 1037, 1046 (2002) ("Immediately upon signing the legislation, President Clinton exercised this waiver authority in blanket fashion and thus nullified the Act by continuing to keep blocked assets in the hands of the U.S. government and immune from attachment by plaintiffs.").

47. See, e.g., Terrorism Risk Insurance Act of 2002 (TRIA), Pub. L. No. 107-297, 116 Stat. 2322 (2002) (establishing the Terrorism Risk Insurance Program (TRIP) enacting no currently effective sections); Terrorism Risk Insurance Extension Act of 2005 (TRIEA 2005), Public Law 109-144, 119 Stat. 2660 (2005) (extending TRIP); Terrorism Risk Insurance Program Reauthorization Act of 2007 (TRIPPRA 2007), Pub. L. No. 110-160, 121 Stat. Insurance Program Reauthorization Act of 2015 (2015 Reauthorization Act), Pub. L. No. 114-1, 129 Stat. 3 (2015) (codified at 15 U.S.C.A. §§ 6751-6764); Terrorism Risk Insurance Program Reauthorization Act of 2019 (2019 Reauthorization Act), Pub. L. No. 116-94, Div. I, Tit. V, 133 Stat. 3026 (2019) (extending TRIP).

(extending TRIP); Terrorism Risk

(2007)

48. See, e.g., 50 U.S.C.A. § 1701(a) (West). 49. See 18 U.S.C.A. § 2333 (West) ("Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees.").

50. See e.g., Boim v. Quranic Literacy Inst. (Boim 1), 291 F.3d 1000 (7th Cir. 2002). 51. Violent Crime Control and Law Enforcement Act (VCCA), Pub. L. No. 103-322,

108 Stat. 1796 (1994) (codified in scattered sections of Titles 16, 18, 21, 28, and 34).

52. Anti-Terrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132,

110 Stat. 1214 (1996) (codified in scattered sections of Titles 8, 18, 22, 28 and 34).

53. Boim I, 291 F.3d at 1019. 54. Jamshidi, supranote 2, at 580. 55. Id.

56. Id. at 563. 57. Id. at 563-64. 58. Id. at 564. 59. Id. at 565. 60. Id. 61. See 18 U.S.C.A. § 2333(a) (West). 62. See Jamshidi, supra note 2, at 581 ("Although Section 2333's text does not include an explicit mens rea element, courts have consistently held that scienter is required because of the statute's automatic treble damages award.").

63. Id.

64. Id. 65. Id. 66. See id. ("This section will explore the three avenues for defining Section 2333's mens rea and the similar ways in which the statute's scienter requirement has developed under each of these approaches.").

67. See generally 1 LINDA L. SCHLUETER, PUNITIVE DAMAGES § 2.1(B) (8th ed. 2020) (explaining the general nature of treble damages); 2 LINDA L. SCHLUETER, PUNITIVE DAMAGES § 20.1 (8th ed. 2020) (listing all state statutorypunitive damages, including when treble damages are available or required).

68. See 15 U.S.C.A. § 15(a) (flush language) (West). 69. See, e.g., generallyAntitrust Remedies Improvements Act, S. 2162, 99th Cong.,

2d. Sess. (1986); H.R. 4250, 99th Cong., 2d. Sess. (1986).

70. See 18 U.S.C.A. § 1964(c) (West). 71. See 18 U.S.C.A. § 2333(a) (West).

72. William K. Black, The DepartmentofJustice "Chases Mice While Lions Roam the Campsite:"Why the DepartmentHas Failedto Prosecutethe Elite FraudsThatDrove the FinancialCrisis, 80 UMKC L. REV. 987, 1017-18 (2012) ("Regulation on the cheap can, however, be supplemented by private rights of action. I suspect that most financial institutions would prefer competent official oversight to sporadic civil actions. But cutting back on both simultaneously allows fraudulent practices to multiply.").

73. See 18 U. S.C.A. §2334(d) (West) ("Convenience of the forum.-The district court shall not dismiss any action brought under section 2333 of this title on the grounds of the inconvenience or inappropriateness of the forum chosen, unless-(1) the action may be maintained in a foreign court that has jurisdiction over the subject matter and over all the defendants; (2) that foreign court is significantly more convenient and appropriate; and (3) that foreign court offers a remedy which is substantially the same as the one available in the courts of the United States.").

74. See Simowitz, DefiningDaimler, supra note 22, at 585 ("Congress took note of

these difficulties.").

75. 137 CONG. REC. S4,511 (daily ed. Apr. 16, 1991) ("The ATA removes the jurisdictional hurdles in the courts confronting victims and it empowers victims with all the weapons available in civil litigation, including: Subpoenas for financial records, banking information, and shipping receipts-this bill provides victims with the tools necessary to find terrorists' assets and seize them."). 76. H.R. REP. No. 102-1040, at 5 (1992). 77. Id. 78. See Aaron D. Simowitz, Legislating Transnational Jurisdiction, 57 VA. J. INT'L L. 325, 366 (2018) [hereinafter Simowitz, Legislating] ("Congress enacted the AntiTerrorism Act (ATA) specifically to provide an avenue of civil relief to U.S. victims of terrorwho had previously been without a clear cause of action.").

79. See Simowitz, Defining Daimler, supra note 22, at 586-87 ("[T]he United States Supreme Court took the simmering fire of ATA suits against multinational banks and unintentionally dumped gasoline on it. The Court did so by dramatically narrowing the personal jurisdiction available to U.S. courts such that the original targets of the ATA, international terrorist organizations, could no longer be haled into U.S. court.").

80. Id. at 587 ("That left only corporate multinational entities that had some

connection to the United States that could potentially support jurisdiction.").

81. See Daimler AG v. Bauman, 571 U.S. 117, 120 (2014) ("This case concerns the authority of a court in the United States to entertain a claim brought by foreign plaintiffs against a foreign defendant based on events occurring entirely outside the United State."). 82. See id. at 139 (holding that Daimler AG, "even with MBUSA's contacts attributed to it," was not "at home in California, and hence subject to suit there on claims by foreign plaintiffs having nothing to do with anything that occurred or had its principal impact in California").

83. Simowitz, Defining Daimler, supra note 22, at 587 (citing Walden v. Fiore, 571

U.S. 277, 285 (2014 ; see also DaimlerAG, 571 U.S. at 120.

84. See

id.

(describing the breadth of general, all-purpose jurisdiction before

Daimler).

85. See DaimlerAG, 571 U.S. at 137-39, 138 n.19 (2014) (quoting Goodyear Dunlop

Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011 .

86. Simowitz, Legislating, supra note 78, at 340 ("[I]ntentional torts committed against residents of another state, with knowledge that effects would be felt in that state, could not, without additional actions directed to thatforum, ground jurisdiction.").

87. See Walden v. Fiore, 571 U.S. 277, 282 (2014). 88. Id. at 285.

89. See id. at284. 90. Bristol-Myers Squibb Co. v. Super. Ct. of Cal., S.F. Cnty., 137 S. Ct. 1773, 1781

(2017).

91. See DaimlerAG, 571 U.S. at 141 ("Recent decisions of this Court, however, have

rendered plaintiffs' ATS and TVPA claims infirm.").

92. In Klieman v. PalestinianAuthority, a U.S. national was visiting Israel when she was the victim of a terrorist attack. See Estate of Klieman v. Palestinian Auth., 467 F. Supp. 2d 107, 110 (D.D.C. 2006). Klieman's relatives brought claims under the ATA. See id at 109. Before Daimler, the district court had held that it could exercise general personal jurisdiction over the PA. See id. at 113. "After Daimler, the district court granted reconsideration on jurisdiction, held that the Palestinian Authority was not 'at home' in the United States, and did not endorse any of plaintiff's theories of specific jurisdiction." Simowitz, Legislating, supra note 78, at 367; see Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d 237, 240 (D.D.C. 2015), aff'd sub nom. Kesner v. Palestinian Auth., 923 F.3d 1115 (D.C. Cir. 2019), cert. granted, and vacated, 140 S. Ct. 2713, (2020), and opinionreinstatedin part, No. 15-7034, 2020 WL 5361653 (D.C. Cir. Aug. 18, 2020). In Livnatv. PalestinianAuth., 82 F. Supp. 3d 19, 21 (D.D.C. 2015), aff'd, 851 F.3d 45 (D.C. Cir. 2017), and Safra v. PalestinianAuth., 82 F. Supp. 3d 37, 39 (D.D.C. 2015), aff'd sub nom. Livnat v. Palestinian Auth., 851 F.3d 45 (D.C. Cir. 2017), U.S. relatives of the decedents brought claims under the ATA and had their claims dismissed because the Palestinian Authority was not amenable to general jurisdiction in the United States. See Livnat, 82 F. Supp. 3d at 22; Safra, 82 F. Supp. 3d at 40; see also Simowitz, supranote 78, Legislatingat 368. The district court in "Livnatand Safra also rejected specific jurisdiction as a ground to hale the Palestinian Authority into a U.S. court-another avenue that [has] been sometimes [used to] bring foreign terrorist entities into U.S. court-noting that the Supreme Court's recent decision in Walden v. Fiore foreclosed exercise of specific jurisdiction based on defendant's knowledge that their actions would likely harm U.S. citizens." See id. The district court explicitly rejected the argument that "a more flexible inquiry is necessary because Congress has demonstrated clear intent for the Anti-Terrorism Act to apply extraterritorially." See Livnat, 82 F. Supp. 3d at 29, 46-47.

93. Sokolow v. Palestine Liberation Org., No. 04 Civ. 397, 2014 WL 6811395, at *2

(S.D.N.Y. Dec. 1, 2014).

94. Simowitz, Defining Daimler, supra note 22, at 589; see also Waldman v. Palestine Liberation Org., 835 F.3d 317, 337 (2d Cir. 2016) (quoting Sokolow, 2014 WL 6811395, at *2).

95. Waldman, 835 F.3d at 337-38. 96. See id. at 338. 97. Simowitz, DefiningDaimler,supra note 22, at 589. 98. See id; see also Brief for the United States as Amicus Curiae at 17-18, Sokolow v. Palestine Liberation Org., 138 S. Ct. 1438 (2018) (No. 16-1071), 2018 WL 1251857, at *17-18 ("It is far from clear that the court of appeals' approach will foreclose many claims that would otherwise go forward in federal courts. As the court of appeals explained, its approach permits U.S. courts to exercise jurisdiction over defendants accused of targeting U.S. citizens in an act of international terrorism.").

99. Simowitz, DefiningDaimler,supra note 22, at 589. 100. See Waldman v Palestine Liberation Org., 835 F.3d 317 (2d Cir. 2016), cert.

deniedsub nom. Sokolow v. Palestine Liberation Org., 138 S. Ct. 1438 (2018).

101. See Simowitz, Jurisdictionas Dialogue, supra note 23, at 519-20 (discussing

the origins of the ATCA).

102. See 18 U.S.C. § 2334(d); see also Simowitz, Jurisdictionas Dialogue, supra

note 23, at 520.

the Palestinian Authority;

(A) the Palestine Liberation Organization; (C) any organization or other entity that is a successor to or affiliated with the Palestinian Authority or the Palestine

(B)

103. See Waldman v. Palestine Liberation Org., 925 F.3d 570, 575 (2d Cir. 2019) ("In sum, the plaintiffs have provided no basis to conclude that a factual predicate of Section 4 of the ATCA has been met in this case."), cert. granted,judgment vacated sub nom. Sokolow v. Palestine Liberation Org., 206 L. Ed. 2d 852 (Apr. 27, 2020).

104. Although the statute applies "regardless of the date of the occurrence of the act of international terrorism," the conditions for consent must be met 120 days after enactment of the ATCA. See 18 U.S.C. § 2334(e)(1).

105. Promoting Security and Justice for Victims of Terrorism Act of 2019, Pub. L.

No. 116-94, § 903, 133 Stat. 2534, 3082 (2019) (codified at 18 U.S.C. § 2334(e .

106. See Motion for Leave to File Amicus Curiae Brief and Brief of Senator Charles Grassley et al. at 21-22, Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020), (No. 19-764), 2020 WL 290959, at *21-22.

107. See Promoting Security and Justice for Victims of Terrorism Act of 2019, Pub.

L. No. 116-94, § 903(c)(1)-(5), 133 Stat. 2534, 3082 (2019).

108. See § 903(c)(1)-(3), 133 Stat. at 3082. 109. See § 903(d)(2), 133 Stat. at 3082. 110. See Brief of Senator Grassley et al., supranote 106, at 22.

Liberation Organization; or (D) any organization or other entity that ... self identifies as, holds itself out to be, or carries out conduct in the name of, the 'State of Palestine' or 'Palestine' in connection with official business of the United Nations."

makes any payment, directly or indirectly-(i) to any payee designated by any individual who, after being fairly tried or pleading guilty, has been imprisoned for committing any act of terrorism that injured or killed a national of the United States, if such payment is made by reason of such imprisonment; or (ii) to any family member of any individual, following such individual's death while committing an act of terrorism that injured or killed a national of the United States, if such payment is made by reason of the death of such individual.1 1 2

111. 18 U.S.C. § 2334. 112. Id. 113. See John F. Preis, JurisdictionalIdealism and Positivism, 59 WM. & MARY L. idealist and positivist conceptions of

1413, 1415-17

(discussing

(2018)

REV. 'jurisdiction").

114. See Sean Hennessy, In Re the ForeignSovereign Immunities Act: How the 911 LitigationShows the Shortcomings ofFSIA as a Tool in the War on Global Terrorism,42 GEo. J. INT'L L. 855, 858 (2011); see also The Schooner Exch. v. McFaddon, 11 U.S. 116, 127 (1812).

115. See Flatlow v. Islamic Republic of Iran, 999 F. Supp. 1, 11 (D.C. Cir. 1998). 116. See Letter from Acting Legal Advisor Jack B. Tate to Acting Attorney General Philip B. Perlman (May 19, 1952), in 26 DEP'T OF STATE BULL. 984-85 (Off of Pub. Commc'n 1952) ("[T]he Department feels that the widespread and increasing practice on the part of governments of engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts. For these reasons it will hereafter be the Department's policy to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign governments for a grant of sovereign immunity.").

117. See H.R. REP. No. 94-1487, at 7 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6606 ("Today, when a foreign state wishes to assert immunity, it will often request the Department of State to make a formal suggestion of immunity to the court.").

118. See Hennessy, supra note 114, at 860; see also 28 U.S.C. § 1605(a).

(1) either the claimant or the victim was a U.S. national at the time of the act; (2) the foreign sovereign has been designated by the State Department as [a state sponsor of terrorism or SST]; (3) the foreign sovereign engaged in conduct that involves torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such acts; (4) the act or the provision of material support was engaged in by an official, employee, or agent of the foreign state acting within the scope of his or her duty; and (5) if the act occurred in the foreign state against which the claim is brought, the claimant must have afforded the foreign state a reasonable opportunity to arbitrate the claim. 121

119. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 303(a), 110 Stat. 1214, 1250-53 (codified at 18 U.S.C. § 2339(B) (2006 ; see also Ilana Arnowitz Drescher, Seeking Justice for America's Forgotten Victims: Reforming the ForeignSovereign Immunities Act TerrorismException, 15 N.Y.U. J. LEGIS. &PUB. POL'Y 791, 834 (2012).

120. Drescher, supranote 119, at 801-02. 121. Id. at 802. 122. See 28 U.S.C. § 1605A(c). 123. Sanctions Programs and Country Information, U.S. DEP'T OF THE TREAS.,

https://bit.ly/3bGusLj (last visited June 28, 2021).

124. See 28 U.S.C.A. § 1610 (West). 125. See Presidential Determination No. 99-1, 63 Fed. Reg. 59201 (Oct. 21, 1998). Clinton explained, in part, "[i]f this section were to result in attachment and execution against foreign embassy properties, it would encroach on my authority under the Constitution to 'receive Ambassadors and other public Ministers. Presidential Statement on Signing H.R. 4328, Pub. L. No. 105-277, 1998 U.S.C.C.A.N. 576 (Oct. 23, 1998).

126. See 28 U.S.C. § 1610(f)(2)(A); see also Drescher, supranote 119, at 803. 127. See Eric T. Kohan, A Natural Progressionof Restrictive Immunity: Why the JASTA Amendment Does Not Violate InternationalLaw, 92 WAsH. L. REV. 1515, 1569 (20 17) (citing In re Terrorist Attacks on Sept. 11, 2001 (TerroristAttacks II), 392 F. Supp. 2d 539, 546 (S.D.N.Y. 2005); In re Terrorist Attacks on Sept. 11, 2001 (TerroristAttacks 1), 349 F. Supp. 2d 765, 779-80 (S.D.N.Y. 2005).

128. See TerroristAttacks II, 392 F. Supp. 2d 539, 553 (S.D.N.Y. 2005), aff'd, 538

F.3d 71 (2d Cir. 2008).

129. Kohan, supra note 127, at 1569 (citing In re Terrorist Attacks on Sept. 11, 2001

(TerroristAttacks III), 538 F.3d 71, 77-78 (2d Cir. 2008 .

130. Id.; see also TerroristAttacks II, 392 F. Supp. 2d 539, 553 (S.D.N.Y. 2005),

aff'd, 538 F.3d 71 (2d Cir. 2008).

131. See TerroristAttacks II, 538 F.3d 71 (2d Cir. 2008).

any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by-(1) an act of international terrorism in the United States; and (2) a tortious act or acts of the foreign state; or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred. 135

132. See Kohan, supranote 127. 133. See Drescher, supranote 119, at 804. "Now, even if invoked, the presidential waiver only protected certain limited types of diplomatic property specifically subject to the Vienna Convention." Id. at 804, n.91. 134. Kohan, supra note 127. 135. Justice Against Sponsors of Terrorism Act (JASTA), Pub. L. No. 114-222, §

2(b), 130 Stat. 852 (2016) (codified at 28 U.S.C. § 1605B).

136. Kohan, supra note 127, at 1557. 137. Id. at 1558. 138. European Union Delegation to the United States of America, EU on JASTA,

WASH. POST. (Sept. 14, 2016), https://wapo.st/3i3av3J.

139. Barack Obama, Veto Messagefrom the President-S. 2040, THE WHITE HOUSE

(Sept. 23, 2016), https://bit.ly/3fnVCcf.

140. See id. ("JASTA would upset longstanding international principles regarding sovereign immunity, putting in place rules that, if applied globally, could have serious implications for U.S. national interests .... These principles also protect U.S. Government assets from attempted seizure by private litigants abroad.").

141. See 18 U.S.C.A. § 2334(d) (West) ("The district court shall not dismiss any action brought under section 2333 of this title on the grounds of the inconvenience or inappropriateness of the forum chosen, unless-(1) the action may be maintained in a foreign court that has jurisdiction over the subject matter and over all the defendants; (2) that foreign court is significantly more convenient and appropriate; and (3) that foreign court offers a remedy which is substantially the same as the one available in the courts of the United States."); see also Goldberg v. UBS AG, 660 F. Supp. 2d 410, 420 (E.D.N.Y. 2009) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981 .

142. See Robert Force, The Position in the United States on ForeignForumSelection andArbitrationClauses, ForumNon Conveniens, andAntisuit Injunctions, 35 TUL. MAR. L. J. 401, 441 (2011) (citing Goldberg v. UBS AG, 660 F. Supp. 2d 410, 422-23 (E.D.N.Y. 2009 .

143. See Linde v. Arab Bank, PLC, 384 F. Supp. 2d 571, 591, n.13 (E.D.N.Y. 2005). 144. John D. Shipman, Comment, Taking Terrorismto Court:A Legal Examination ofthe New Frontin the Waron Terrorism,86 N.C. L. REV. 526, 554 (2008) (quoting Linde v. Arab Bank, PLC, 384 F. Supp. 2d 571, 591 n.5 (E.D.N.Y. 2005 .

145. Air Transportation Safety and System Stabilization Act (ATSSSA), 107 Pub. L. No. 42, § 408(b)(3), 115 Stat. 230 (2001) (codified as amended at 48 U.S.C. § 40101); see alsoHickey v. City of New York (In re World Trade Ctr. Disaster Site Litig.), 270 F. Supp. 2d 357, 368 (S.D.N.Y. 2003).

146. Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 93 (D.D.C. 2003). 147. John D. Shipman, Comment, Taking Terrorismto Court:A Legal Examination

ofthe New Frontin the War on Terrorism, 86 N.C. L. REv. 526, 555 (2008).

148. Id. (quoting In re World Trade Ctr. Disaster Site Litig., 270 F. Supp. 2d 357,

371 (S.D.N.Y. 2003) (internal quotations omitted).

149. Id. (quoting Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 93

(D.D.C. 2003 .

150. Id. 151. Christian Leuprecht et al., Tracking Transnational Terrorist ResourcingNodes

andNetworks, 36 FLA. ST. U. L. REv. 289, 310 (2019).

152. Sireesha Chenumolu, Revamping InternationalSecurities Laws to Break the FinancialInfrastructureofGlobal Terrorism, 31 GA. J. INT'L & COMP. L. 385, 400 (2003). 153. Vanessa Ortblad, Comment, CriminalProsecution in Sheep's Clothing: The Punitive Effects of OFACFreezingSanctions, 98 J. CRIM. L. & CRIMINOLOGY 1439, 1442 (2008).

154. International Emergency Economic Powers Act (IEEPA), Pub. L. No. 95-223,

91 Stat. 1625 (1997) (codified as amended at 50 U.S.C. §§ 1701-1702).

155. Ortblad, supranote 153, at 1442-43.

156. Sireesha Chenumolu, Revamping InternationalSecurities Laws to Break the FinancialInfrastructureofGlobalTerrorism, 31 GA. J. INT'L & COMP. L. 385, 401 (2003).

157. See id. 158. Id. 159. Id. at 399-401. 160. See id. at 401. 161. Ortblad, supranote 153, at 1439. 162. See John Roth et al., NationalCommissionon TerroristAttacks upon the United States: Monograph on TerroristFinancing,NAT'L COMM'N ON TERRORIST ATTACKS UPON THE UNITED STATES (2004), https://bit.ly/2StlnlL.

163. Id. at 50. 164. Id. 165. Id. at 50-51. 166. Id. at 51. 167. Id. 168. Chenumolu, supra note 156, at 401 (citing International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, Pub. L. No. 107-56, § 311, 115 Stat. 298-299 (2001) (codified at 31 U.S.C. §§ 5311, 5322, 5332 .

II. THE PATH OF TERROR REGULATION IN PRIVATE LAW

169. Anne C. Pogue, IfIt Weren'tfor the FlipSide-Can the USA PatriotActHelp the U.S. PursueDrugDealers and TerroristsOverseas, Without OversteppingConstitutional BoundariesatHome?, 14 CORNELL J. L. &PUB. POL'Y 477, 486-87 (2005).

96 WASH. U. L. REV. 559, 613-15 (2018).

172. See Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat.

2891 (1976) (codified at 28 U.S.C. §§ 1602-1611).

173. Justice Against Sponsors of Terrorism Act (JASTA), Pub. L. No. 114-222, § 4(b), 130 Stat. 852, 854 (2016) (codified at 28 U.S.C. § 1605B) (amending the FSIA to include 28 U.S.C. § 1605B, or "JASTA claims").

174. See 28 U.S.C. § 1605(a)(5)(A) (stating that the non-commercial tort exception to sovereign immunity shall not apply to "any claim based upon" the exercise or failure to exercise a "discretionary function").

175. See Stephen J. Schnably, The Transformation ofHuman Rights Litigation: The Alien Tort Statute, the Anti-Terrorism Act, andJASTA, 24 U. MIAM INT'L &CoMp. L. REV. 285, 379-80 (2017) ("In contrast to the non-commercial tort provision of the FSIA, JASTA says nothing about an exception for discretionary functions. If the court interprets this silence as Congressional rejection of the discretionary function exception for JASTA claims, that would be significant .... ").

176. See Evaluating the Justice Against Sponsors of Terrorism: Hearing on Act, S 2930 Before the Subcomm. on Crime and Drugs ofthe S. Comm. on the Judiciary, 101st Cong., 25 (2010) (statement of John B. Bellinger, Legal Advisor, U.S. Dep't of State); see the also Justice Against Sponsors of Terrorism Act: Hearing on HR. 2040 Before Subcomm. on the Constitution and Civil Justice of the H. Comm. on the Judiciary, 114th Cong., 19 (2016) (statement of Assistant Secretary of State for Near Eastern Affairs of the U.S. Dep't of State Anne W. Patterson); id. at 25 (statement of Legal Adviser of the U.S. Department of State Brian Egan); id. at 37 (statement of Michael B. Mukasey).

177. See Barack Obama, Veto Message from the President-S. 2040, THE WHITE HOUSE (Sept. 23, 2016), https://bit.ly/3fnVCcf; see also Seung Min Kim, Congress Hands Obama First Veto Override, POLITICO (Sept. 28, 2016), https://politi.co/3cyvfOM.

178. See Antiterrorism Act of 1990, Pub. L. No. 101-519, § 131, 104 Stat. 2250

(codified as amended at 18 U.S.C. §§ 2331-2338).

179. See Jesse D. H. Snyder, Reading Between the Lines: Statutory Silence and CongressionalIntent Under the AntiterrorismAct, 1 BRIT. J. AM. LEGAL STUD. 265, 269 (2012).

180. See Anti-Terrorism Clarification Act of 2018, Pub. L. No. 115-253, § 4, 132 Stat. 3183, 3184 (2018); see also JIM ZANOTTI & JENNIFER K. ELSEA, CONG. RSCH. SERV., R46274, THE PALESTINIANS AND AMENDMENTS TO THE ANTI-TERRORISM ACT: U.S. AID AND PERSONAL JURISDICTION 1-2 (2020).

181. See Lindsey D. Simon, Claim Preclusionandthe Problem ofFictionalConsent,

41 CARDOZO L. REv. 2561, 2615 n.41 (2020).

182. See id. 183. See Anti-Terrorism Clarification Act of 2018, Pub. L. No. 115-223, § 4, 132

Stat. 3183 (codified at 18 U.S.C. § 2333).

184. See PalestineBrings a CaseAgainstthe United States in the InternationalCourt

ofJustice atA FraughtTimefor U.S.-Palestinian Relations, 113 AM. J. INT'L L. 143, 149 n.40 (2019) (citing David Bmnnstrom, Trump Cuts More Than $200Million in U.S. Aid to Palestinians,REUTERS (Aug. 24, 2018), https://reut.rs/3wApzeD).

185. See Promoting Security and Justice for Victims of Terrorism Act of

2019 (PSJVTA), Pub. L. No. 116-94, § 903, 133 Stat. 3082 (2018) (codified at 18 U.S.C. § 2334).

186. See Zanotti & Elsea, supranote 180, at 2.

187. See id. 188. See 18 U.S.C. § 2334(e)(5). 189. See Shaffer v. Heitner, 433 U.S. 186, 207 (1977). 190. See Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th

Cir. 2000).

191. See Meier ex rel. Meier v. Sun Intern. Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002) ("A federal district court sitting in diversity may exercise personal jurisdiction to the extent authorized by the law of the state in which it sits and to the extent allowed under the Constitution.").

192. See Catrone v. Ogden Suffolk Downs, Inc., 647 F. Supp. 850, 852 (D. Mass. 1986) (citing Driver v. Helms, 577 F.2d 147, 157 (1st Cir. 1978), rev 'dothergrounds sub nom. Stafford v. Briggs, 444 U.S. 527 (1980 .

193. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) (holding that foreign subsidiaries of a United States tire manufacturer are not subject to specific or general jurisdiction in a U.S. lawsuit brought by estates of two minors killed in bus accident in France).

194. J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011). 195. Daimler AG v. Bauman, 571 U.S. 117 (2014). 196. Walden v. Fiore, 571 U.S. 277 (2014). 197. Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773 (2017). 198. BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017). 199. Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021). 200. See Stephen E. Sachs, The Unlimited Jurisdictionof the FederalCourts, 106 VA. L. REV. 1703, 1706-07 (2020) ("But because the individual states lack jurisdiction in these cases, and because the attacks weren't specifically aimed at Americans, the defendants' U.S. contacts fell short. Congress has twice amended the statute to try different approaches, and these may yet succeed.").

201. See McNic Oil & Gas Co. v. Ibex Res. Co., 23 F. Supp. 2d 729, 732 (E.D. Mich. 1998) ("A federal court sitting in diversity may exercise personal jurisdiction over an outof-state defendant only after engaging in a two-step analysis. First, the court must determine whether the state long-arm statute authorizes jurisdiction over the nonresident defendant. Second, the court must consider whether the exercise of personal jurisdiction would not deny defendant his constitutional right to due process of law." (citing Omni Capital Int'l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987), supersededby statute, Federal Rules of Civil Procedure Amendments Act of 1982, Pub. L. No. 97-462, 96 Stat. 2527, as recognizedin United States v. Offshore Marine, 179 F.R.D. 156, 159-160 (D.V.I. 1998 .

202. See, e.g., Fitzgerald v. Wal-Mart Stores E., LP, 296 F.R.D. 392, 394 (D. Md. 2013) ("As Snow Patrol was impleaded as a third party defendant under Rule 14 of the Federal Rules, it is subject to the '100-mile bulge' of Rule 4(k)(1)(B)." (citing Hollerbach &Andrews Equip. Co. v. S. Concrete Pumping, No. 95-826, 1995 U.S. Dist. LEXIS 14990, *2 (D. Md. Sep. 29, 1995 .

203. See FED. R. Civ. P. 4(k)(1)(B).

204. See Omni CapitalIntl, Ltd., 484 U.S. at 102-03. 205. See Yishai Schwartz, Sokolow v. PLO: Another Blow Against Recovery for

Foreign Wrongs, LAWFARE (Sept. 8, 2016), https://bit.ly/3wzLXVI.

206. See Waldman v. Palestine Liberation Org., 925 F.3d 570, 573 (2d Cir. 2019), cert. grantedsub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020), and vacated, 140 S. Ct. 2714 (2020).

207. See Sokolow, 140 S. Ct. at 2714. 208. See, e.g., Burnham v. Superior Court of Cal., 495 U.S. 604, 609 (1990) (determining "whether the assertion of personal jurisdiction is consistent with due process").

209. See JENNIFER K. ELSEA, CONG. RSCH. SERV., LSB 10467, FOREIGN SOVEREIGN IMMUNITY AND COVID-19 LAWSUITS AGAINST CHINA 3 (2020) ("Members of the 1 16 th Congress have introduced several bills that reduce the FSIA's obstacles.").

210. See, e.g., Stop China-Originated Viral Infectious Diseases Act of 2020, H.R. 6444, 116th Cong. (2020); Stop COVID Act of 2020, S. 3592, 116th Cong. (2020); Holding the Chinese Communist Party Accountable for Infecting Americans Act of 2020, H.R. 6519, 116th Cong. (2020); Compensation for the Victims of State Misrepresentations to the World Health Organization Act of 2020, H.R. 6524, 116th Cong. (2020).

211. See Homeland and Cyber Threat Act, H.R. 4189, 116th Cong. (2019). 212. See Chimene I. Keitner, Letter to the Journal, To Litigate a Pandemic: Cases in the UnitedStatesAgainstChinaandthe Chinese CommunistPartyand Foreign Sovereign Immunities, 19 CHINESE J. INT'L L. 229, 229 (2020) (stating that at least twenty lawsuits had been filed as of June 2020).

213. See Chimene Keitner, Don't Bother Suing Chinafor Coronavirus, JUST SEC.

(Apr. 8, 2020) [hereinafter Keitner, Don 'tBother Suing], https://bit.ly/3oSGFSu.

(Apr. 22, 2020)

214. See Chimene Keitner, Missouri's Lawsuit Doesn'tAbrogate China'sSovereign [hereinafter Keitner, Missouri's Lawsuit],

Immunity, JUST SEC. https://bit.ly/34hy42n. 215. See id. 216. Josh Hawley, Senator Hawley Announces Bill to Hold Chinese Communist PartyResponsible for COVID-19 Pandemic, JOSH HAWLEY: U.S. SENATOR FOR MISSOURI (Apr. 14, 2020), https://bit.ly/3vqkCFh.

217. Id. 218. Keitner, Missouri'sLawsuit, supra note 214. 219. Id. 220. Id.

221. Chimene Keitner & Allison Peters, PrivateLawsuitsAgainstNation-StatesAre Not the Way to Dealwith America's Cyber Threats,LAWFARE (June 15, 2020, 9:09 AM), https://bit.ly/34ogYj2.

222. Id. 223. Id. 224. Id. 225. Id. 226. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434

(1989).

227. See Immunities ofForeignStates:Hearingson HR. 3493 Before the Subcomm. on Claims and GovernmentalRelations ofthe House Comm. on the Judiciary, 93d Cong., 29 (1973) (testimony of Bruno Ristau, Chief, Foreign Litigation Section, Civil Division, U.S. Department of Justice).

228. See id. 229. See Direct Investment by Country and Industry, 2019, U.S. DEP'T OF COM., (July 23, 2020), https://bit.ly/34hdWxj (showing U.S.

BUREAU OF ECON. ANALYSIS investment abroad at $5.96 trillion).

230. Keitner & Peters, supra note 221. 231. Id. 232. Id. 233. Id. 234. Id. 235. See id.

III. THE DYNAMICS OF TERROR REGULATION IN PRIVATE LAW

REFORM

236. The ForeignSovereign Immunities Act, Coronavirus, andAddressing China's Culpability, HearingBefore the S. Comm. on the Judiciary, 116th Cong. (2020) (statement of Chimene Keitner, Professor of International and Comparative Law, UC Hastings Law).

237. Id. at 1. 238. See id. at 25. 239. See id. at 26. 240. Reitz, supra note 6, at 1141. 241. Id. at 1141-42. 242. Id. at 1142.

243. Id. 244. Maryam Jamshidi, How the War on TerrorIs TransformingPrivate US. Law,

96 WASH. U. L. REV. 559, 566 (2018).

245. Id. at 566-67. 246. Id. at 567. 247. Id. at 567-68 (quoting Karen C. Tumlin, Suspect First: How TerrorismPolicy

Is ReshapingImmigrationPolicy, 92 CAL. L. REV. 1173, 1176 (2004 .

248. 28 U.S.C. § 1350. 249. Donald Earl Childress III, The Alien Tort Statute, Federalism, and the Next

Wave ofTransnational Litigation, 100 GEO. L.J. 709, 712 (2012).

250. Pierre Hugues-Verdier & Paul B. Stephan, International Human Rights and Multinational Corporations: An FCPA Approach, 101 B.U. L. REV. (forthcoming 2021) (manuscript at 7) (https://bit.ly/3xBD4vs).

251. Filartigav. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). 252. Should State Law Rule The World?A CallforCaution in Applying State Law to Transnational Tort Cases, U.S. CHAMBER INSTITUTE FOR LEGAL REFORM 4 (Sept. 2013), https://bit.ly/3AQv5eO.

253. Hugues-Verdier & Stephan, supra note 250, at 8. 254. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, § 2, 106 Stat. 73 (codified at 28 U.S.C. § 1350) (creating a federal cause of action for victims of torture or extrajudicial killing against "[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation" perpetrated certain prescribed acts). 255. Kadic v. Karadzic, 70 F.3d 232, 239-43 (2d Cir. 1995).

201l

256. Hugues-Verdier & Stephan, supra note 250, at 8 (citing Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997), aff'd in part, 395 F.3d 932 (9th Cir. 2002), pet. for rehearingen banc granted, 395 F.3d 978 (9th Cir. 2003), pet. dismissed upon motion of the parties,403 F.3d 708 (9th Cir. 2005 .

257. See Sosav. Alvarez-Machain, 542 U.S. 692, 724-25 (2004). 258. Hugues-Verdier & Stephan, supra note 250, at 10 (citing Kiobel v. Royal Dutch

Petroleum, 621 F.3d 111 (2d Cir. 2010 .

259. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 114 (2013). 260. Id. at 124-25.

261. Mohamed v. Palestinian Authority, 566 U.S. 449, 453 (2012). 262. See Aaron D. Simowitz, Legislating Transnational Jurisdiction, 57 VA. J. INT'L

L. 325, 327 (2018).

263. See Jesnerv. Arab Bank, PLC, 138 S. Ct. 1386, 1403 (2018). 264. Nestle USA, Inc. v. Doe, 141 S. Ct. 1931, 1936-37 (2021) ("Even if we resolved all these disputes in respondents' favor, their complaint would impermissibly seek extraterritorial application of the ATS.").

265. See id. at 1937 ("To plead facts sufficient to support a domestic application of the ATS, plaintiffs must allege more domestic conduct than general corporate activity. The Ninth Circuit erred when it held otherwise.").

266. See id. at 1936. 267. See William S. Dodge, The SurprisinglyBroadImplicationsofNestle USA, Inc. v. Doe for Human Rights Litigation andExtraterritoriality,JUST SEC. (June 18, 2021), https://bit.ly/313KR1y.

268. Geoffrey Sant, So Banks Are TerroristsNow?: The Misuse of the Civil Suit

Provisionofthe Anti-TerrorismAct, 45 ARIZ. ST. L.J. 533, 533 (2013).

269. See supra Section I.C.

270. See DaimlerAG, 571 U.S. at 138. 271. See id. 272. See Aaron D. Simowitz, LegislatingTransnational Jurisdiction, 57 VA. J. INT'L

L. 325, 367 (2018) (describing cases).

273. 2 VED P. NANDA ET AL., LITIG. OF INT'L DISPS. IN U.S. COURTS § 9:42 (2d ed.

2005 & Supp. 2020) (describing the types of civil terrorism suits against banks).

274. Id. 275. Id.

0 1

276. Id. 277. Id. 278. See generallyDOUGLASS C. NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE AND

ECONOMIC PERFORMANCE (1990).

279. See, e.g., Simeon Djankov et al., The New ComparativeEconomics, 31 J. COMP.

ECON. 595, 595 (2003).

280. See Christopher A. Whytock, Taking Causality Seriously in Comparative Constitutional Law: Insights from Comparative Politics and Comparative Political Economy, 41 Loy. L.A. L. REV. 629, n.78 (2008) ("I use the term 'private law' for convenience only; I have doubts about its analytic utility .... For example, property rights are as much a part of public law as private law." (citing Martin Shapiro, FromPublicLaw to PublicPolicy, or the "Public"in "PublicLaw, " 5 PS: POL. SCI. & POL. 410 (1972 .

281. Donald Tomaskovic-Devey & Ken-Hou Lin, Financialization: Causes, Inequality Consequences, and Policy Implications, 18 N.C. BANKING INST. 167, 167 (2013).

282. Id. 283. Michael W. Taylor,RegulatoryReform in the U.K., 18 N.C. BANKING INST. 227,

247 (2013).

284. Id.

285. Id. ("The underlying logic of these proposals was obviously very close to the objectives-based concept that underpinned the Twin Peaks approach that the U.K. eventually adopted.").

286. Id. 287. Id. 288. See MARK J. ROE, STRONG MANAGERS, WEAK OWNERS: THE POLITICAL ROOTS OF AMERICAN CORPORATE FINANCE (1994); see also Gregory Mark, Book Review Essay, Realms of Choice: Finance Capitalismand CorporateGovernance, 95 COLUM. L. REV. 969, 969-70 (1995) ("The publication of Strong Managers, Weak Owners may lead a return to a more richly contextualized understanding of the American business corporation. Its author, Mark Roe, has provided a truly original contribution to our literature on the legal history of the corporation in the political economy.").

289. Roe, supranote 288, at 196-97. 290. Gregory Mark, Book Review Essay, Realms ofChoice:FinanceCapitalismand

CorporateGovernance, 95 COLUM. L. REV. 969, 970 (1995).

291. Id.

292. Id. at 970-71. 293. See K. Sabeel Rabman, Domination, Democracy, and ConstitutionalPolitical

Economy in the New GildedAge: Towards a Fourth Wave ofLegal Realism?, 94 TEx. L. REV. 1329, 1345 (2016).

294. K. Sabeel Rabman, Domination, Democracy, and Constitutional Political

Economy in the New GildedAge: Towards A Fourth Wave ofLegal Realism?, 94 TEx. L. REV. 1329, 1359 (2016) (quoting Louis D. Brandeis, A Curse of Bigness, HARPER'S WEEKLY, Jan. 10, 1914, at 18).

295. See, e.g., Evan C. Zoldan, Legislative Design and the ControllableCosts of Special Legislation, 78 MD. L. REV. 415, 415 (2019) ("Legislation that singles out an identifiable individual for benefits or harms that do not apply to the rest of the population is called 'special legislation."').

296. See Bank Markazi v. Peterson, 136 S. Ct. 1310, 1317 (2016) (holding that asset execution portion of the Iran Threat Reduction Act "does not transgress constraints placed on Congress and the President by the Constitution").

297. Evan C. Zoldan, Reviving Legislative Generality, 98 MARQ. L. REV. 625, 625

(2014).

298. Id. 299. Evan C. Zoldan, Legislative Design and the Controllable Costs of Special

Legislation,78 MD. L. REv. 415, 415 (2019).

300. Id. 301. See id. 302. See Teresa Welsh, USAID, US NGOs Leave Gaza, West Bank Over Terrorism

Law, DEVEX (Jan. 29, 2019), https://bit.ly/3mm5w02.

CONCLUSION

303. See THE PRESIDENT OF THE UNITED STATES, THE NATIONAL SECURITY STRATEGY

OF THE UNITED STATES OF AMERICA (2002).