Samantar, Official Immunity and Federal Common Law

This essay examines the theoretical underpinnings of the immunity of foreign government officials following the Supreme Court\u27s recent decision in Samantar. Part of a forthcoming symposium with the Lewis and Clark Law Review, the paper tackles the federal common law in the Court\u27s decision and, more broadly, international civil litigation. It criticizes the Court\u27s unexamined assumption that its federal common law power extended to create an immunity that, at best, coexists only uncomfortably alongside the legislative framework of the FSIA. It explains the problematic implications of this assertion of federal common law, both for suits against foreign officials and for international civil litigation more generally. Drawing on a longstanding stream of statutory interpretation literature, the paper concludes that the Court should have declined to exercise its gap-filling authority in this context and, instead, employed an information-forcing default rule that would have induced congressional action in the field