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Kilburn v. Libya: Cause for Alarm? |
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Stephen Townley [View as PDF]
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115 Yale L.J. 1177 (2006)
In Kilburn v. Libya, the D.C. Circuit held that a plaintiff may turn to United States courts to seek recovery from a foreign nation for injuries suffered at the hands of a terrorist organization with which the foreign nation was affiliated--if actions taken by that foreign nation were a proximate cause of the plaintiff's injury. Kilburn is part of an emerging pattern. Over the past ten years, Congress and the courts have made it increasingly easy for plaintiffs to secure compensation from foreign nations for injuries arising out of terrorist acts. In particular, courts have liberally interpreted the state sponsor of terrorism amendment to the Foreign Sovereign Immunities Act of 1976 (FSIA), which permits plaintiffs to sue those nations designated as state sponsors of terrorism for damages in U.S. courts.
Yet Kilburn also broke with prior cases. Kilburn involved an unusual set of facts and resolved the questions they presented in atypical fashion. Prior to Kilburn, most cases brought pursuant to the terrorism amendment had involved terrorist acts committed directly by a foreign nation or instigated by a foreign nation and committed by that nation's agent. Kilburn, by contrast, involved damage done by a nonstate actor who received material support and resources from the defendant nation but who was not its agent. Moreover, prior to Kilburn, courts had seldom permitted plaintiffs to seek relief for injuries foreign nations had not specifically intended to cause. Indeed, the United States, appearing as amicus curiae in Kilburn, asserted that it was not clear from existing case law that "the allegation of a foreign state's general support for the terrorist group that carried out the act of terrorism is sufficient to satisfy the statute." The Kilburn court, by contrast, adopted a more relaxed, proximate cause standard for jurisdiction.
This Comment argues that Kilburn is inconsistent with the FSIA scheme. I do not weigh the merits of the Kilburn causation standard on its own terms. Rather, I contend that Kilburn will lead to extensive jurisdictional discovery. Permitting such discovery not only would create a disjunction between foreign sovereign immunity practice on the one hand and domestic sovereign immunity practice and international law on the other, but it also might frustrate Congress's goals in passing the terrorism amendment. I begin by explaining why the adoption of the Kilburn standard makes it more likely that courts will engage in jurisdictional discovery. In Part II, I elucidate the history of the FSIA and use that history to demonstrate why extensive jurisdictional discovery is incompatible with the FSIA. Finally, in Part III, I offer alternatives to the Kilburn standard.
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