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Textualism Prevails (Unanimously) in Cassirer v. Thyssen-Bornemisza
Michael Ramsey

Yesterday the Supreme Court unanimously reversed the Ninth Circuit in Cassirer v. Thyssen-Bornemisza, in a (mostly) textualist opinion by Justice Kagan.  And rightly so.  From my previous post about the case:

[Cassirer] involves an effort to recover a painting seized by the Nazis that ended up in the hands of a Spanish Museum.   The question presented is a technical one:

Whether a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.

To my mind the answer is blindingly obvious.  The Foreign Sovereign Immunities Act (FSIA), Section 1606, directs that:

As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances...

The  defendant in Cassirer is a Spanish state-owned entity (the museum) that is defined as a "foreign state" under the FSIA.  It is not entitled to immunity as a result of an exception to immunity under Section 1605.  Therefore, by Section 1606, it "shall be liable in the same manner and to the same extent as a private individual under like circumstances."  No one disputes any of this.

Further, no one disputes that under the Court's longstanding decision in Klaxon v. Stentor Electric Manufacturing Co., a similar suit against a private defendant would be governed by the substantive law chosen by the forum state's choice-of-law rules.  That is, a "private individual under like circumstances" would be governed by the choice of law rules where the suit is heard (here, California).  Thus, it seems (to me) necessarily to follow  that the state-owned defendant in Cassirer should also be governed by the choice of law rules where the suit is heard.  (I joined a law professors' amicus brief, principally written by Professor Zachary Clopton of Northwestern, saying basically that.) 

Justice Kagan's opinion follows similar textualist reasoning.  After quoting FSIA Section 1606, she writes:

So when a foreign state is not immune from suit, it is subject to the same rules of liability as a private party. Which is just to say that the substantive law applying to the latter also applies to the former. ... The provision thus ensures that a foreign state, if found ineligible for immunity, must answer for its conduct just as any other actor would.

And in so doing, Section 1606 also dictates the selection of a choice-of-law rule: It, too, must mirror the rule that
would apply in a similar suit between private parties. For only the same choice-of-law rule can guarantee use of the same substantive law—and thus (see above) guarantee the same liability. ...

In this case, then, Section 1606 requires the use of California’s choice-of-law rule—because that is the rule a court would use in comparable private litigation. Consider the just-hypothesized suit against a private museum for return of a piece of art, brought as this case was in California. The claims asserted (again, as in this case) turn only on state or foreign property law, with no substantive federal component. If the private suit were filed in state court, California’s choice-of-law rule would of course govern. And if the private suit were filed in federal court, under diversity-of-citizenship jurisdiction, the same would be true. According to long-settled precedent, a federal court sitting in diversity borrows the forum State’s choice-of-law rule. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487, 496 (1941). So the private-museum suit would begin with the application of California’s choice-of-law rule, to decide on the governing substantive law. And if that choice-of-law rule applies in the private-museum suit, so too it must apply in the suit here, against the Foundation. That is the only way to ensure—as Section 1606 demands—that the Foundation, although a Spanish instrumentality, will be liable in the same way as a private party.

Agreed.  I'm especially pleased by this sharp rebuke of the Ninth Circuit panel, which (as I wrote before) was an excellent trio of rule-of-law-oriented judges who reached a bizarrely non-textual result.  Sometimes even the best judges get off track in cases with foreign affairs implications.  It's good to see this strong correction from the Supreme Court.