1 Foreign Sovereign Immunities Act of 1976,28U.S.C. §§1330,1391(f), 1441(d), 1602-11 (2000) [hereinafter FSIA].

2 Republic of Austria v. Altmann, 124 S.Ct. 2240, 2243, 2254 (2004).

3 Id. at 2243.

4 Id. at 2243-44. According to Altmann, Ferdinand owned the paintings, with the implication that Adele could not have bequeathed them to the gallery. Id. at 2244.

5 Id. at 2244.

6 Altmann v. Republic of Austria, 317 F.3d 954, 959 (9th Cir. 2002).

7 Republic of Austria v. Altmann, 124 S.Ct. at 2244-45.

8 Id. at 2243-44.

9 Id. at 2243.

10 Id. The Austrian government later declared this practice to be illegal. Altmann v. Republic of Austria, 317 F.3d at 960.

11 Republic of Austria v. Altmann, 124 S.Ct. at 2244.

12 Id.

13 Id. at 2245.

14 Id.

15 Altmann v. Republic of Austria, 317 F.3d at 961.

16 Altmann v. Republic of Austria, 142 F.Supp. 2d 1187, 1192 n.2 (CD. Cal. 2001).

17 Republic of Austria v. Altmann, 124 S.Ct. at 2245.

18 Id.

19 Because Austria calculates court costs based on the amount in controversy, the filing fee would have exceeded $1 million. See id. (suggesting that Austrian court costs would have reached “several million dollars”); Altmann v. Republic of Austria, 317 F.3d at 961 (estimating Austrian court costs to be “about $1.6 million”). Although the Austrian court granted Altmann a partial reduction, it still would have required payment of a six-figure amount variously identified as falling within a range from $ 135,000 to $350,000. Compare Republic of Austria v. Altmann, 124 S.Ct. at 2245 (expressing the view of the majority that the Austrian court ‘would have required respondent to pay $350,000 to proceed”), with id. at 2258 (expressing the concurring view of Justice Breyer that the Austrian court “required the posting of a $135,000 filing fee”), Altmann v. Republic of Austria, 317 F.3d at 961 (also referring to a fee of “approximately $ 135,000”), and Altmann v. Republic of Austria, 142 F.Supp.2dat 1196 n. 12 (suggesting that the filing fee might fall within a range from $133,000 to $200,000, depending on the exchange rate).

20 Republic of Austria v. Altmann, 124 S.Ct. at 2245.

21 Id. at 2245-46; see also 28 U.S.C. §§1330(a), 1605(a)(3).

22 Republic of Austria v. Altmann, 124 S.Ct. at 2243, 2246. While recognizing that parts of Altmann’s claim might arguably relate to acts of concealment or misrepresentation that continued well after 1948, the Court accepted that much of the alleged wrongdoing occurred in 1948, when the gallery coercively exchanged the Klimt paintings for export permits relating to other works. Id. at 2246 & n.7. Austria did not base its claim to the paintings on expropriations consummated during the Nazi era. Id. at 2257-58 (Breyer, J., concurring).

23 Id. at 2247-49.

24 Id. at 2247-48 (discussing The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812), and Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983)).

25 Id. at 2248.

26 Id. at 2248-49 (quoting and discussing Letter from Jack, B. Tate, Acting Legal Adviser, Department of State, to Philip B. Perlman, Acting Attorney General (May 19, 1952)Google Scholar, reprinted in 26 Dept. of State Bull. 984-85 (1952), and in Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 711-15 (1976) (White, J., App. 2) [hereinafter Tate Letter]).

27 Id.

28 Id. (quoting and discussing Verlinden, 461 U.S. at 487-88).

29 Id. at 2249.

30 511 U.S. 244(1994).

31 Republic of Austria v. Altmann, 124 S.Ct. at 2249.

32 Id. at 2250 (quoting and discussing Landgraf, 511 U.S. at 280).

33 Id. at 2250-51 (quoting and discussing landgraf, 511 U.S. at 280).

34 Id. at 2250 (quoting and discussing Landgraf, 511 U.S. at 275).

35 Id. at 2251 (quoting and discussing Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939,951 (1997)).

36 Id.

37 Id. &n.l5.

38 Id. In his concurring opinion, Justice Scalia seemed more inclined to apply the Landgraf framework and to treat the FSIA as a jurisdictional statute that “affects substantive rights only accidentally” and that may therefore be applied to claims involving preenactment conduct. Id. at 2256. In his dissenting opinion, Justice Kennedy applied the Landgraf framework, identified the FSIA as a statute creating jurisdiction over expropriation claims where none previously existed, and therefore concluded that the FSIA cannot be applied to such claims involving preenactment conduct. Id at 2266-67.

39 Id. at 2250, 2252.

40 Id. at 2252.

41 Id. Although it minimizes the role of the executive branch in making immunity determinations, the FSIA represents “the most recent... decision” of “the political branches . . . on whether to take jurisdiction” over foreign states. Id. (quoting Verlinden, 461 U.S. at 486).

42 Id. at 2252 n. 16; id. at 2260 (Breyer, J., concurring); id. at 2268 (Kennedy, J., dissenting). Although the State Department and courts applied the Tate Letter’s standards regarding immunity from claims involving pre-Tate Letter conduct, they softened the consequences by continuing to recognize the absolute immunity of foreign states from execution. H.R. REP. No. 94-1487, at 27 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6626; Restatement (Third) of the Foreign Relations Law of the United States §469, reporters’ note 1 (1987); Restatement (Second) of the Foreign Relations Law of the United States §69, reporters’ note 2 (1965).

43 Republic of Austria v. Altmann, 124 S.Ct. at 2252.

44 Id. at 2252-55.

45 Id. at 2252-53; see also 28 U.S.C. §1602 (“Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter”) (emphasis added). But see FSIA, supra note 1, §8 (providing that the “Act shall take effect ninety days after the date of its enactment”). Five justices concluded that the language of section 1602 did not, by itself, resolve the issue of the statute’s application to claims involving preenactment conduct. Republic of Austria v. Altmann, 124 S.Ct. at 2259 (Breyer, J., concurring, joined by Souter, J.); id. at 2264-65 (Kennedy, J., dissenting, joined by Rehnquist, C.J., and Thomas, J.).

46 Republic of Austria v. Altmann, 124 S.Ct. at 2253 (discussing Verlinden, 461 U.S. at 482-83, 497).

47 Id a t 2253-54.

48 Id. at 2254-55; see also id. at 2261-62 (Breyer, J., concurring) (identifying statutes of limitations, personal jurisdiction, venue, forum non conveniens, the act of state doctrine, nationality of the claimant, and exhaustion of local remedies as alternative doctrines likely to shield foreign states from litigation in U.S. courts).

49 Id. at 2255 & n.21; id. at 2262 (Breyer, J., concurring).

50 See supra text accompanying notes 24, 41.

51 See H.R. REP. NO. 94-1487, supra note 42, at 9, reprinted in 1976 U.S.C.C.A.N. at 6608 (“In virtually every country, the United States has found that sovereign immunity is a question of international law to be determined by the courts.”); Joseph, W. Dellapenna, Suing Foreign Governments and Their Corporations 8 (2d ed. 2003)Google Scholar (observing that “in civil law countries . . . foreign state immunity . . . largely remains, as it nearly always has been in the civil law traditions, a judicial construct discoverable only from the study of ‘jurisprudence’ (caselaw) of the relevant courts”); Higgins, Rosalyn, Problems & Process: International Law and How We Use It 81 (1994)Google Scholar (explaining that “in respect of the topic of state immunity it is almost entirely to national decisions that we must look”).

52 See Charles, H. Brower II, International Immunities: Some Dissident Views on the Role of Municipal Courts, 41 Va. J. Int’l L. 1, 2–3, 8 (2000)Google Scholar (opining that the “history of foreign sovereign immunity constitutes a well-known tale in which autonomy and privilege yielded substantial ground to accountability,” and recognizing that immunities now “operate within a world that requires their minimization”).

53 See H.R. REP. No. 94-1487, supra note 42, at 14, reprinted in 1976 U.S.C.C.A.N. at 6613 (“Although the general concept of sovereign immunity appears to be recognized in international law, its specific content and application have generally been left to the courts of individual nations.”); Brownlie, Ian, Principles of Public International Law 325–26 (6th ed. 2003)Google Scholar (“Recent writers emphasize that there is a trend in the practice of states . . . but avoid firm and precise prescriptions as to the present state of the law. Moreover, the practice of states is far from consistent. . . . The various items said to embody that principle of restrictive immunity . . . do not provide uniform solutions.”).

54 See supra note 26; Fox, Hazel, The Law of State Immunity 186–87 (2002)Google Scholar (noting that the “letter was very general in terms,” that it did not provide “any criterion to distinguish commercial from public transactions,” and that the lack of clarity contributed to the rise of uncertainty and inconsistent decisions).

55 Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612 (1992) (observing that the FSIA “leaves the critical term ‘commercial’ largely undefined”); H.R. REP. No. 94-1487, supra note 42, at 16, reprinted in 1976 U.S.C.C.A.N. at 6615 (“The courts would have a great deal of latitude in determining what is a ‘commercial activity’ for purposes of this bill. It has seemed unwise to attempt an excessively precise definition of this term, even if that were practicable.”); FOX, supra note 54, at 198 (observing that the latitude granted to courts has “led to a bewildering diversity of decisions”).

56 In his concurring opinion, Justice Breyer observed that the European Convention on State Immunity and the state immunity acts of Australia, England, and Singapore all contain provisions expressly restricting their application to claims involving postenactment conduct. Republic of Austria v. Altmann, 124 S.Ct. at 2259. The absence of any such language in the FSIA arguably suggests that Congress did not intend to restrict its application to claims involving preenactment conduct. Id.

57 See supra text accompanying note 42; but see generally Regina v. Bartle, Ex Parte Pinochet, [ 1999] 2 All E.R. 97, [1999] 2 W.L.R. 827 (H.L.) (holding that Pinochet retained immunity from prosecution on charges involving torture committed before Chile, Spain, and the United Kingdom ratified the Convention Against Torture (CAT), and lost his immunity only for acts committed after ratification by all three states). In the Pinochet litigation, however, three circumstances militated against retroactive application of the CAT to defeat immunity from prosecution on charges involving for preratification conduct: (1) the proceedings raised issues of individual criminal responsibility, an area in which private rights and expectations arguably play a larger role; (2) the defendant relied on head-of state immunity, a doctrine historically characterized by greater stability and less rapid change than state immunity; and (3) unlike the FSIA, the CAT and its drafting history nowhere express an intent to limit the availability of immunity as a defense to prosecution.

58 Republic of Austria v. Altmann, 124 S.Ct. at 2260 (Breyer, J., concurring).

59 See generally Saudi Arabia v. Nelson, 507 U.S. 349 (1993) (involving allegations of arbitrary detention and torture by police officials); Weltover, 504 U.S. 607 (1992) (involving the unilateral extension of public debt by presidential decree at a time of fiscal crisis); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) (involving the unprovoked aerial bombardment of a neutral commercial vessel located outside a zone of hostilities and proceeding under a white flag).

60 In his dissenting opinion, Justice Kennedy suggested that before enactment of the FSIA, foreign states had a settled expectation that the executive branch would resolve claims to immunity, perhaps based on political considerations. Republic of Austria v. Altmann, 124 S.Ct. at 2268-69 (Kennedy, J., dissenting). It is, however, difficult to accept that foreign states had a legally protected right of access to a decision-making process characterized by an incumbent U.S. legal adviser as “the very antithesis of the rule of law.” Jurisdiction of U.S. Courts in Suits Against Foreign States: Hearings on H.R. 11315 Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm. on the judiciary, 94th Cong. 35 (1976)Google Scholar (testimony of Monroe Leigh).

61 Republic of Austria v. Altmann, 124 S.Ct. at 2251; see also Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 306-07 (2d Cir. 1981), cert, denied, 454 U.S. 1148 (1982); Harris v. VAO Intourist, Moscow, 481 F.Supp. 1056, 1061-63 (E.D.N.Y. 1979); Hon. Marianne, D. Short & Charles, H.Brower II, The Taming of the Shrew: May the Act of State Doctrine and Foreign Sovereign Immunity Eat and Drink as Friends”? 20 Hamline L. Rev. 723, 730(1997)Google Scholar.

62 Republic of Austria v. Altmann, 124 S.Ct. at 2275-76 (Kennedy, J., dissenting) (criticizing the majority for not applying the principles that ordinarily govern the operation of statutes, and complaining that the decision “injects great prospective uncertainty into our relations with foreign sovereigns”).

63 See Charles, H. Brower II, Structure, Legitimacy, and NAFTA’s Investment Chapter, 36 Vand. J. Transnat’l L. 37, 52 (2003)Google Scholar (observing that “predictability . . . supplies the necessary foundation for [the] legitimacy” of international legal regimes, and suggesting that a lack of predictability increases perceptions of arbitrariness by transforming outcomes of disputes into “random, haphazard event[s]”); see also infra text accompanying note 67.

64 See Weltover, 504 U.S. at 614-17; see also Joan, E. Donoghue, Taking the “Sovereign” out of the Foreign Sovereign Immunities Act: A Functional Approach to the Commercial Activity Exception, 17 YALE J. INT’L L. 489, 509 (1992)Google Scholar (indicating that the Supreme Court “emphasized the form of the transaction in question, and not its subject matter”); Stephen, J. Leacock, The Joy of Access to the Zone of Inhibition: Republic of Argentina v. Weltover, Inc. and the Commercial Activity Exception Under the Foreign Sovereign Immunities Act of 1976, 5 Minn. J. Global Trade 81,100(1996)Google Scholar (opining that “the Court held that the FSIA squarely and unambiguously precludes . . . consideration of. .. the context. . . of any ostensibly commercial activity”).

65 Dole Food Co. v. Patrickson, 538 U.S. 468, 473-77 (2003).

66 See Republic of Austria v. Altmann, 124 S.Ct. at 2254 (emphasizing the virtues of maintaining a “comprehensive jurisdictional scheme”); id. at 2261 (Breyer, J., concurring) (underscoring the “complications and anomalies” likely to result from proposed qualifications to a blanket rule).

67 See Saudi Arabia v. Nelson, 507 U.S. 349, 361-63 (1993) (holding that retaliation against an employee did not fall within the FSIA’s commercial activities exception because the state-owned employer selected uniformed policemen as the specific instrument of retribution); see also Joseph, W. Dellapenna, Refining the Foreign Sovereign Immunities Act, 9 Willamette J. Int’l L. & Disp. Resol. 57,157 (2001)Google Scholar (“The test posited in Weltover was not applied even by the Supreme Court in [Nelson][,] the very next [FSIA] case to reach the Court after Weltover.”); Robert, H. Wood, Saudi Arabia v. Nelson: Roll over Weltover, Tell Scott Nelson the News, 2 Tul. J. Int’l & Comp. L. 175,187 (1994)Google Scholar (“Whereas the Court in Weltover seemed to broaden the definition of commercial activity, the Court in Nelson did as much to narrow it, leaving the definition of commercial activity under the FSIA where it was before Weltover: in the eye of the beholder.”).

68 USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 199-200, 207-16 (3d Cir. 2003); RSM Production Corp. v. Petroleos de Venezuela Societa Anonima, 338 F.Supp.2d 1208, 1214-15 (D. Colo. 2004).

69 See Republic of Austria v. Altmann, 124 S.Ct. at 2273, 2275 (Kennedy, J., dissenting) (observing that the majority opinion “invit[es] case by case intervention by the Executive” and therefore “promises to reintroduce Executive intervention in foreign sovereign immunity determinations to an even greater degree than existed before the FSIA’s enactment”).

70 461 U.S. 480, 486(1983).

71 538 U.S. at 478-79.

72 Republic of Austria v. Altmann, 124 S.Ct. at 2247-48, 2251-52; id. at 2260-61 (Breyer, J., concurring). But see 28 U.S.C. §1602 (identifying international law as the source of certain principles governing state immunity from claims and from execution); UN Convention on Jurisdictional Immunities of States and Their Property, GA Res. 59/38, annex (Dec. 2, 2004); David P. Stewart, The UN Convention on Jurisdictional Immunities of States and Their Property, 99 AJIL 194 (2005).

73 See supra text accompanying note 52.

74 See supra notes 24,41,50; see also The Paquete Habana, 175 U.S. 677, 700 (1900) (indicating that the political branches may prevent or qualify the incorporation of customary international law into the U.S. legal system).

75 Cf. Charles, H. Brower II, The Lives of Animals, The Lives of Prisoners, and the Revelations of Abu Ghraib, 37 Vand. J. Transnat’l L. 1353, 1356 (2004 Google Scholar) (referring to the United States as “a nation widely perceived to have retreated from its commitment to the rule of law”).