Bill Dodge has an excellent post up at the Transnational Litigation Blog that asks who has the burden of demonstrating that a foreign state is, or is not, immune from suit under the doctrine of foreign sovereign immunity. On the one hand, the question seems settled: most circuits, including the DC Circuit and the Second Circuit, say that the foreign state has a burden to show, prima facie, that it is a foreign state; the plaintiff then has a burden to show that an exception to immunity applies; and the foreign state then has the burden to prove that it is immune from jurisdiction by a preponderance of the evidence. But the United States, in an amicus brief in a case before the Supreme Court, says that the consensus view is wrong, because, under 28 U.S.C. § 1330, foreign sovereign immunity is a question of subject matter jurisdiction, and the plaintiff always has the burden to show that the court has subject matter jurisdiction.

Bill basically comes down on the side of the consensus view, and I agree with him. To me, the key is that foreign sovereigns can be sued in state courts, in which case § 1330 has no application. Bill focuses on the legislative history of the FSIA but also makes the point about state courts. He writes that “it is at least open to question whether Congress has authority to regulate the subject matter jurisdiction of state courts over non-federal claims.” Without digging into my Hart & Wechsler from 1999, that seems to me to be an understatement. But I am not sure. Of course Congress has the power to give foreign states immunity from suit in state or federal court, and as a practical matter the line between that and depriving state courts of subject-matter jurisdiction in such suits is thin. But state courts are (let’s say) courts of general jurisdiction, and it strikes me that there are serious federalism problems with Congress depriving the state court of their jurisdiction over non-federal claims. Like every serious federal courts question, this one gets very deep very quickly. Or at least that is my memory of the course. I remember sitting in the back of classroom, while the keepers of the flame sat in the front. Professor Shapiro was a traditional cold-caller. I was called and I gave an answer to some esoteric question that was marginally adequate if I was lucky. Professor Shapiro said nothing, almost imperceptibly shook his head, and went on direct the next question to a flame-keeper. Mortifying.