CSLG to Host Discussion of Holocaust Reparations Case
The Center for the Study of Law & Genocide is hosting a session to listen to and discuss the U.S. Supreme Court oral arguments in Philipp v. Germany at 5 p.m. PST today, Dec. 7. Hosted by the Center's Deputy Director Rajika Shah, the listening session will also include Prof. Michael Bazyler, one of the world's leading Holocaust legal scholars and a fellow amici in the amicus brief filed by the Center in Philipp and its companion case, Simon v. Hungary.
Listening Session Chat Transcript
Associate Justice Clarence Thomas
(a)(3) = 28 U.S.C. § 1605(a)(3). It states in relevant part: “A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case in which rights in property taken in violation of international law are in issue.” A commercial nexus with the United States is also required.
FSIA = Foreign Sovereign Immunities Act
Associate Justice Stephen Breyer
Republic of Austria v. Altmann, 541 U.S. 677 (2004)
Associate Justice Samuel Alito
From Rajika Shah to Everyone: 05:20 PM
Associate Justice Sonia Sotomayor
From Rajika Shah to Everyone: 05:27 PM
Questions presented in Philipp:
1. Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3), which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a
foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property.
2. Whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even where the foreign nation has a domestic framework for addressing the claims.
Associate Justice Elena Kagan
Associate Justice Neil Gorsuch
Domestic takings rule = the international law of takings traditionally is concerned with takings by a state of property of nations other than its own (ie, non-nationals).
From Rajika Shah to Everyone: 05:48 PM
*property of nationals other than its own
Associate Justice Brett Kavanaugh
Associate Justice Amy Coney Barrett
Edwin Kneedler, arguing on behalf of the United States
Chief Justice John Roberts again, now Associate Justice Clarence Thomas. Each justice will again ask questions of Mr. Kneedler in order of seniority.
Associate Justice Stephen Breyer
Associate Justice Samuel Alito
Associate Justice Sonia Sotomayor
Associate Justice Elena Kagan
"International law at the time" = 1976, when Congress passed the Foreign Sovereign Immunities Act.
Restatement = Restatement of Foreign Relations Law of the United States.
Associate Justice Neil Gorsuch
Clarification Act = a 2016 amendment to the Foreign Sovereign Immunities Act. 28 U.S.C. § 1605(h): Exempts certain artworks that are the subject of claims based on a Nazi-era property taking from the general rule that the import into the United States of artworks for temporary exhibition or display does not constitute commercial activity that would satisfy the commercial nexus of 28 U.S.C. § 1605(a)(3).
From Rajika Shah to Everyone: 06:22 PM
Associate Justice Brett Kavanaugh
Associate Justice Amy Coney Barrett
Nicholas O’Donnell, arguing on behalf of Alan Philipp et al (Plaintiffs/Respondents)
Chief Justice John Roberts again.
Associate Justice Clarence Thomas
Associate Justice Stephen Breyer
Associate Justice Samuel Alito
Associate Justice Sonia Sotomayor
Associate Justice Elena Kagan
Associate Justice Neil Gorsuch
The Second Hickenlooper Amendment restricts application of the act of state doctrine, but only with respect to a confiscation or other taking after January 1, 1959. The act of state doctrine requires American courts to presume the validity of an official act of a foreign sovereign performed within its own territory.
From Rajika Shah to Everyone: 06:25 PM
Associate Justice Brett Kavanaugh
From Rajika Shah to Everyone: 06:29 PM
Associate Justice Amy Coney Barrett. This will be the last set of questions to counsel.
From Rajika Shah to Everyone: 06:34 PM
Back to Jonathan Freiman, counsel for Germany et al (Defendants/Petitioners)