Amicus Curiae Brief — David Cassirer, et al., Petitioners v. Thyssen-Bornemisza Collection Foundation

NO. 20-1566

In the

Supreme Court of the United States

________________

DAVID CASSIRER, et al.,

Petitioners,

v.

THYSSEN-BORNEMISZA COLLECTION FOUNDATION,

AN AGENCY OR INSTRUMENTALITY OF THE

KINGDOM OF SPAIN,

________________

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth

Circuit

________________

BRIEF OF AMICI CURIAE 14 PROFESSORS OF

LAW IN SUPPORT OF PETITIONERS

________________

Charles J. Cooper

Counsel of Record

P. Davis Cooper

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

ccooper@cooperkirk.com

Counsel for Amici Curiae

May 24, 2021

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF THE ARGUMENT ............................ 1

ARGUMENT ............................................................... 3

I. The Petition Presents An Important Question

About The Foreign Sovereign Immunities Act

On Which The Circuit Courts Are Split. .............. 3

A. The Question Has Generated A Circuit

Split. ................................................................. 3

B. The Ninth Circuit’s Approach Is

Inconsistent With The Text Of The

Statute.............................................................. 5

C. The Ninth Circuit’s Approach Is

Inconsistent With This Court’s Precedent

On Federal Common Law. .............................. 8

II. The Question Presented And The Role Of

Federal Common Law Implicate Important

Issues Beyond This Case. ................................... 10

A. Foreign Relations........................................... 10

B. Federalism ..................................................... 11

C. Separation Of Powers .................................... 13

ii

D. The Twin Aims Of Erie .................................. 15

CONCLUSION .......................................................... 16

APPENDIX: LIST OF AMICI ................................... 1a

iii

TABLE OF AUTHORITIES

Page

CASES

Alaska Packers Ass’n v. Indus. Accident Comm’n,

294 U.S. 532 (1935) ............................................. 12

Allstate Ins. Co. v. Hague,

449 U.S. 302 (1981) ............................................. 12

Atherton v. F.D.I.C.,

519 U.S. 213 (1997) ............................................. 13

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ............................................... 8

Barkanic v. Gen. Admin. of Civil Aviation

of the People’s Republic of China,

923 F.2d 957 (2d Cir. 1991) .................................. 4

Bostock v. Clayton Cnty.,

140 S. Ct. 1731 (2020) ........................................... 6

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) ............................................. 11

Cassirer v. Thyssen-Bornemisza Collection Found.,

862 F.3d 951 (9th Cir. 2017) ................................. 5

City of Milwaukee v. Ill. & Mich.,

451 U.S. 304 (1981) ................................... 9, 10, 14

Clearfield Trust Co. v. United States,

318 U.S. 363 (1943) ............................................... 9

Day & Zimmermann v. Challoner,

423 U.S. 3 (1975) ......................................... 7, 8, 11

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) ....................................... 3, 9, 11

iv

Fed. Republic of Germany v. Philipp,

141 S. Ct. 703 (2021) ........................................... 10

First Nat’l City Bank v. Banco Para El

Comercio Exterior de Cuba,

462 U.S. 611 (1983) ....................................... 1, 3, 6

Griffin v. McCoach,

313 U.S. 498 (1941) ............................................... 7

Hanna v. Plumer,

380 U.S. 460 (1965) ............................................. 15

Ins. Co. of N. Am. v. Fed. Express Corp.,

189 F.3d 914 (9th Cir. 1999) ................................. 7

Jesner v. Arab Bank, PLC,

138 S. Ct. 1386 (2018) ......................................... 14

Klaxon Co. v. Stentor Electric

Manufacturing Co.,

313 U.S. 487 (1941) ....................... 1, 4, 7, 8, 12, 13

Northrop Grumman Ship Sys., Inc. v. Ministry

of Def. of Republic of Venezuela,

575 F.3d 491 (5th Cir. 2009) ................................. 4

O’Bryan v. Holy See,

556 F.3d 361 (6th Cir. 2009) ............................. 4, 5

O’Melveny & Myers v. F.D.I.C,

512 U.S. 79 (1994) ............................................... 14

Oveissi v. Islamic Republic of Iran,

573 F.3d 835 (D.C. Cir. 2009) ............................... 4

Owens v. Republic of Sudan,

864 F.3d 751 (D.C. Cir. 2017) ............................... 3

Rodriguez v. Fed. Deposit Ins. Corp.,

140 S. Ct. 713 (2020) ......................................... 8, 9

v

Schoenberg v. Exportadora de Sal, S.A. de C.V.,

930 F.2d 777 (9th Cir. 1991) ................................. 5

Semtek Int’l Inc. v. Lockheed Martin Corp.,

531 U.S. 497 (2001) ............................................. 12

United States v. Kimbell Foods,

440 U.S. 715 (1979) ......................................... 9, 11

Watson v. Emp. Liab. Assurance Corp.,

348 U.S. 66 (1954) ............................................... 12

STATUTES AND LEGISLATIVE MATERIALS

28 U.S.C. § 1606 ..................................................... 3, 6

28 U.S.C. § 1603(b) ................................................... 15

H.R. REP. NO. 94–1487 (1976) ................................ 4, 6

OTHER AUTHORITIES

Russell J. Weintraub, The Erie Doctrine and State

Conflict of Laws Rules,

39 IND. L.J. 228 (1963) ........................................ 12

Symeon C. Symeonides, Choice of Law in the

American Courts in 2019: Thirty-Third Annual

Survey, 68 AM. J. COMP. L. 235 (2020) ................. 5

Zachary D. Clopton, Horizontal Choice of Law in

Federal Court, U. PA. L. REV.

(forthcoming 2021), available at

https://bit.ly/3fBcRWb ....................................... 5, 9

1

INTEREST OF AMICI CURIAE 1

Amici curiae are 14 professors of law (listed in

Appendix A) with expertise in the Foreign Sovereign

Immunities Act, civil litigation, federal common law,

and the federal courts. They have a strong interest in

the proper treatment of these issues by U.S. courts.

SUMMARY OF THE ARGUMENT

This case raises an important question about the

choice of law rules applicable to state law claims

under the Foreign Sovereign Immunities Act (FSIA).

In the FSIA, Congress provided that foreign sovereign

defendants should be liable “to the same extent as a

private individual under like circumstances.” 28

U.S.C. § 1606. In this case and others, the Ninth

Circuit has departed from this simple command.

As this Court stated in First Nat’l City Bank v.

Banco Para El Comercio Exterior de Cuba, 462 U.S.

611, 622 n.11 (1983): “[W]here state law provides a

rule of liability governing private individuals, the

FSIA requires the application of that rule to foreign

states in like circumstances.” In Klaxon Co. v. Stentor

Electric Manufacturing Co., 313 U.S. 487 (1941), this

Court held that a federal court sitting in diversity

1 No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than Amici or their counsel made a monetary

contribution intended to fund the preparation or submission of

this brief. All parties have consented to the filing of this brief,

and all parties received timely notice of Amici’s intent to file this

brief.

2

applies the state law that the forum state would have

chosen. To effectuate Congress’s command in the

FSIA, therefore, federal courts in FSIA cases should

apply the horizontal choice of law rules of the forum

state.

The Second, Fifth, Sixth, and D.C. Circuits follow

this approach, but the Ninth Circuit—in this case and

others—deviated from Congress’s direction and

created a federal common law rule for choice of law.

The Ninth Circuit’s decision is wrong. It is

inconsistent with the text of the FSIA, and it is

inconsistent with this Court’s precedent on federal

common law.

The Ninth Circuit’s decision also raises an

important question of federal law. It implicates issues

of foreign affairs. It implicates federalism principles

embodied in choice of law rules. It implicates the

separation of powers that traditionally allocates

lawmaking authority to Congress, not the courts. And

it implicates forum shopping and the inequitable

administration of law that motivated this Court’s

decision in Erie R.R. Co. v. Tompkins, 304 U.S. 64

(1938).

For these reasons, this Court should grant the

petition and resolve this pressing circuit split.

3

ARGUMENT

I.

The Petition Presents An Important

Question About The Foreign Sovereign

Immunities Act On Which The Circuit

Courts Are Split.

This case raises an important question about the

choice of law rules applied to state law claims under

the Foreign Sovereign Immunities Act (FSIA). The

Ninth Circuit’s decision conflicts with decisions of

other federal courts, including four circuit courts. The

Ninth Circuit’s decision is also inconsistent with the

text of the statute and with this Court’s precedent on

the making of federal common law. This Court,

therefore, should grant the petition and reverse the

decision below.

A. The Question Has Generated A Circuit

Split.

The FSIA provides that “the foreign state shall

be liable in the same manner and to the same extent

as a private individual under like circumstances.” 28

U.S.C. § 1606.

This provision has been characterized as a “passthrough” for state law. See Owens v. Republic of

Sudan, 864 F.3d 751, 763 (D.C. Cir. 2017). As this

Court explained: “The language and history of the

FSIA clearly establish that the Act was not intended

to affect the substantive law determining the liability

of a foreign state or instrumentality, or the attribution

of liability among instrumentalities of a foreign state.”

First Nat’l City Bank, 462 U.S. at 620. The House

Report accompanying the FSIA was similarly clear:

4

“The bill is not intended to affect the substantive law

of liability.” H.R. REP. NO. 94–1487, at 12 (1976).

To effectuate the “same extent as a private

individual under like circumstances” command, most

federal courts interpreting this provision have applied

the forum state’s choice of law rules to non-federal

claims, as they would in a suit against a private party

under Klaxon Co. v. Stentor Electric Manufacturing

Co., 313 U.S. 487 (1941). See, e.g., Barkanic v. Gen.

Admin. of Civil Aviation of the People’s Republic of

China, 923 F.2d 957, 961 (2d Cir. 1991) (“Because we

believe that applying the forum state’s choice of law

analysis will help ensure that foreign states are liable

‘in the same manner and to the same extent as a

private individual under like circumstances,’ 28 U.S.C.

§ 1606, we conclude that incorporation of state choice

of law rules is appropriate here.”); Oveissi v. Islamic

Republic of Iran, 573 F.3d 835, 841 (D.C. Cir. 2009)

(“We thus agree with the Second Circuit that applying

the forum state’s choice-of-law principles, rather than

constructing a set of federal common law principles,

better effectuates Congress’ intent that foreign states

be ‘liable in the same manner and to the same extent

as a private individual’ in FSIA actions.”); Northrop

Grumman Ship Sys., Inc. v. Ministry of Def. of

Republic of Venezuela, 575 F.3d 491, 498 (5th Cir.

2009) (“Because this case arises under the FSIA, we

apply the choice-of-law rules of the forum state.”);

O’Bryan v. Holy See, 556 F.3d 361, 381 n.8 (6th Cir.

2009) (“[I]n FSIA cases, we use the forum state’s

5

choice of law rules to resolve ‘all issues,’ except

jurisdictional ones.”) (citations omitted). 2

The Ninth Circuit, however, applies a federal

common law rule on the horizontal choice of law,

derived from the Second Restatement. See, e.g.,

Schoenberg v. Exportadora de Sal, S.A. de C.V., 930

F.2d 777, 782 (9th Cir. 1991). That is what the Ninth

Circuit did in this case. See Cassirer v. ThyssenBornemisza Collection Found., 862 F.3d 951, 961 (9th

Cir. 2017).

These differing approaches can result in different

law being applied in different circuits on the same

facts. See, e.g., Symeon C. Symeonides, Choice of Law

in the American Courts in 2019: Thirty-Third Annual

Survey, 68 AM. J. COMP. L. 235 (2020) (collecting state

choice of law approaches, many of which deviate from

the Second Restatement). As a result, the circuit split

identified in the petition may have real and important

consequences in cases arising under the FSIA,

including this one.

B. The

Ninth

Circuit’s

Approach

Is

Inconsistent With The Text Of The Statute.

The Ninth Circuit is not only in the minority on

the issue of the appropriate choice of law rule for FSIA

cases, but it is also on the wrong side of the circuit

2 At least the Second and D.C. Circuits permit exceptions

from forum state choice of law to effectuate federal interests.

When these exceptions apply, courts in these circuits may select

different law in FSIA cases than they would in diversity cases

under like circumstances. See Zachary D. Clopton, Horizontal

Choice of Law in Federal Court, U. PA. L. REV. (forthcoming 2021),

available at https://bit.ly/3fBcRWb.

6

split. In particular, the Ninth Circuit’s rule is

inconsistent with Congress’s command that a foreign

sovereign defendant is liable to the same extent as a

private individual under like circumstances. This

conflict with the text of the statute makes the question

presented even more important.

The touchtone of statutory interpretation is the

text of the statute. See, e.g., Bostock v. Clayton Cnty.,

140 S. Ct. 1731, 1738 (2020). (“[O]nly the words on the

page constitute the law adopted by Congress and

approved by the President. If judges could add to,

remodel, update, or detract from old statutory terms

inspired only by extratextual sources and our own

imaginations, we would risk amending statutes

outside the legislative process reserved for the

people’s representatives.”).

Again, the relevant text of the FSIA provides

that “the foreign state shall be liable in the same

manner and to the same extent as a private individual

under like circumstances.” 28 U.S.C. § 1606. Both this

Court and Congress acknowledged that this language

was not meant to change the substantive law

applicable to the claims at issue. See First Nat’l City

Bank, 462 U.S. at 620 (quoted above); H.R. REP. NO.

94–1487, at 12 (1976) (quoted above). Indeed, this

language must reach the substantive law to be applied,

because applying different substantive law will

frequently affect the extent of liability, as it did in this

case, where the defendant’s liability (or nonliability)

was determined entirely by the choice of law applied

by the courts below.

The key question, then, is what is the “extent” of

liability of a private individual under like

7

circumstances? When a federal court hears a statelaw claim in a case arising under diversity jurisdiction

(including a claim by a U.S. citizen against a citizen of

a foreign state), this Court has made clear that the

federal court should apply the horizontal choice of law

rule of the forum state. See Klaxon, 313 U.S. at 496.3

This was the law at the time the FSIA was adopted,

and it is the law today. In a case such as this one, the

federal court in California should apply California’s

horizontal choice of law rule.

Moreover, the Klaxon rule gives no quarter to

concerns of foreign affairs. In Day & Zimmermann v.

Challoner, 423 U.S. 3 (1975), plaintiffs sued the

manufacturer of a howitzer round for death and

personal injury resulting from its premature

explosion during U.S. military operations in

Cambodia. The foreign-affairs concerns raised by a

suit arising out of U.S. military operations in a foreign

conflict are unambiguous. And yet, not only did this

Court call for the application of forum-state choice of

law, it did so in a short per curiam reversal. Id. “A

federal court in a diversity case is not free to engraft

onto those state rules exceptions or modifications

which may commend themselves to the federal court,

3 The same result would hold under many other bases of

jurisdiction, see, e.g., Griffin v. McCoach, 313 U.S. 498 (1941)

(applying forum-state choice of law in a statutory interpleader

case decided on the same day as Klaxon); Ins. Co. of N. Am. v.

Fed. Express Corp., 189 F.3d 914, 920 (9th Cir. 1999) (applying

state choice of law in a case under the Warsaw Convention), but

this brief discusses diversity-of-citizenship jurisdiction because

it presents the most “like circumstances” to cases such as this

one.

8

but which have not commended themselves to the

State in which the federal court sits.” Id. at 4.

To be sure, foreign-affairs interests may lead a

federal court to apply a substantive rule derived from

federal common law in a diversity case. See, e.g.,

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398

(1964) (applying federal common law Act of State

doctrine in a case arising under diversity jurisdiction).

But once a federal court has decided it must apply

state substantive law in a diversity case, then it must

apply state choice of law as well. See Klaxon, 313 U. S.

at 496; Day & Zimmermann, 423 U.S. at 4. And

because there is no contention that federal

substantive law applies in this case, a federal court

adjudicating a claim against a private individual

under like circumstances would have followed Klaxon

where it applies.

C. The

Ninth

Circuit’s

Approach

Is

Inconsistent With This Court’s Precedent

On Federal Common Law.

The Ninth Circuit’s rule is also inconsistent with

this Court’s precedent on when federal courts can

appropriately make federal common law. This, too,

makes the question presented worthy of this Court’s

attention.

As this Court recently reminded, “[j]udicial

lawmaking in the form of federal common law plays a

necessarily modest role under a Constitution that

vests the federal government's ‘legislative Powers’ in

Congress and reserves most other regulatory

authority to the States.” Rodriguez v. Fed. Deposit Ins.

Corp., 140 S. Ct. 713, 717 (2020). Federal common law

9

in specialized areas survived Erie’s admonition that

“[t]here is no federal general common law,” 304 U.S.

at 78, “[b]ut before federal judges may claim a new

area for common lawmaking, strict conditions must be

satisfied.” Rodriguez, 140 S. Ct. at 717. See also

United States v. Kimbell Foods, 440 U.S. 715 (1979);

Clearfield Trust Co. v. United States, 318 U.S. 363

(1943).

Among its many virtues, Klaxon’s decision to

follow forum-state choice of law maintains the modest

role of federal common law and reserves regulatory

authority to the states. Rather than asking federal

judges to develop a federal choice of law regime,

Klaxon tells federal judges to repair to the welldeveloped choice of law rules of the forum state. Once

it is decided that state law should provide the

substantive law (as it was in this case), there is no

uniquely federal interest in the choice among state

laws. Again, there may be a federal interest justifying

the application of uniform federal substantive law in

the first instance. But in cases raising state law

claims, there is no special federal interest in the choice

among state laws that would justify federal judicial

lawmaking. See Zachary D. Clopton, Horizontal

Choice of Law in Federal Court, U. PA. L. REV.

(forthcoming

2021),

available

at

https://bit.ly/3fBcRWb.

It is especially concerning for a federal court to

make federal common law that displaces a

congressional command calling for a contrary result.

See supra Section I.B; infra Section II.C. Cf. City of

Milwaukee v. Ill. & Mich., 451 U.S. 304, 313–14 (1981)

(“We have always recognized that federal common law

10

is subject to the paramount authority of Congress. It

is resorted to [i]n absence of an applicable Act of

Congress, and because the Court is compelled to

consider federal questions which cannot be answered

from federal statutes alone. Federal common law is a

necessary expedient . . . .”) (internal quotation marks

and citations omitted). And yet the Ninth Circuit did

exactly that, adopting federal common law despite

contrary direction from Congress.

II.

The Question Presented And The Role

Of Federal Common Law Implicate

Important Issues Beyond This Case.

The substantive law applied in cases against

foreign states (and instrumentalities) and the role of

federal judges in making law implicate important

issues of foreign relations, federalism, the separation

of powers, and the twin aims of Erie. Granting the

petition for a writ of certiorari will allow this Court to

resolve a circuit split implicating these important

issues.

A. Foreign Relations

It almost goes without saying that the proper

interpretation of the Foreign Sovereign Immunities

Act implicates the foreign relations of the United

States. See, e.g., Fed. Republic of Germany v. Philipp,

141 S. Ct. 703, 714 (2021) (“We interpret the FSIA as

we do other statutes affecting international relations:

to avoid, where possible, producing friction in our

relations with [other] nations and leading some to

reciprocate by granting their courts permission to

embroil the United States in expensive and difficult

litigation.”) (internal quotation marks omitted).

11

Importantly, though, a mere mention of foreign

relations should not be treated as an invitation to

create uniform federal common law. Cf. Kimbell Foods,

440 U.S. at 730 (suggesting that uniform federal

common law is not justified by “generalized pleas for

uniformity”); Day & Zimmermann, 423 U.S. at 4

(applying forum-state choice of law in a case

implicating foreign affairs). Indeed, even the Ninth

Circuit’s approach will result in federal courts

applying different states’ laws in different cases.

Instead, foreign relations should be treated as a

reason for this Court to provide clear guidance on

these questions, even if that guidance involves

reference to state law.

B. Federalism

The creation of uniform federal common law

necessarily affects important issues of federalism.

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938),

struck a blow for federalism, announcing that “[t]here

is no federal general common law.” Id. at 78. The

Court’s reasoning was deeply connected to federalism,

explaining that the expansive role for federal law

under Swift v. Tyson was an “invasion of the authority

of the state, and, to that extent, a denial of its

independence.” Id. at 79 (internal quotation marks

omitted). See also Boyle v. United Technologies Corp.,

487 U.S. 500, 517 (1988) (Brennan, J., dissenting)

(“Erie was deeply rooted in notions of federalism, and

is most seriously implicated when, as here, federal

judges displace the state law that would ordinarily

govern with their own rules of federal common law.”).

12

This federalism interest extends to choice of

law. 4 Choice of law rules are expressions of

substantive policies. See, e.g., Russell J. Weintraub,

The Erie Doctrine and State Conflict of Laws Rules, 39

IND. L.J. 228, 242 (1963) (“[T]he choice-of-law rules of

a state are important expressions of its domestic

policy.”); see also Allstate Ins. Co. v. Hague, 449 U.S.

302 (1981); Watson v. Emp. Liab. Assurance Corp.,

348 U.S. 66 (1954); Alaska Packers Ass’n v. Indus.

Accident Comm’n, 294 U.S. 532 (1935). This Court

recognized as much in its seminal decision on choice

of law in federal court. In Klaxon, this Court explained

that a federal court’s application of forum-state choice

of law is intimately connected with the state’s ability

to make policy via choice of law:

Whatever lack of uniformity this may

produce between federal courts in different

states is attributable to our federal system,

which leaves to a state, within the limits

permitted by the Constitution, the right to

pursue local policies diverging from those of

its neighbors. It is not for the federal courts

to thwart such local policies by enforcing an

independent ‘general law’ of conflict of laws.

Subject only to review by this Court on any

federal question that may arise, Delaware is

free to determine whether a given matter is

to be governed by the law of the forum or

some other law. This Court’s views are not

the decisive factor in determining the

applicable conflicts rule. And the proper

4 Indeed, in Semtek Int’l Inc. v. Lockheed Martin Corp., 531

U.S. 497 (2001), this Court looked to state law for the content of

the federal common law of preclusion in diversity cases.

13

function of the Delaware federal court is to

ascertain what the state law is, not what it

ought to be.

313 U.S. at 496–97 (internal citations omitted). The

Ninth Circuit’s federal common law rule thwarts the

local policies of forum states, which under Klaxon are

entitled to determine whether a case should be

governed by their own law or the law of another

jurisdiction. In this case, the Ninth Circuit’s

application of federal common law to select Spanish

law thwarts the policies underlying California’s choice

of law rules, which would call for application of

California substantive law to protect the property

rights of California residents and prevent the transfer

of stolen art. See Pet. for a Writ of Certiorari at 17–22

(May 6, 2021).

More generally, whether and when federal courts

should make uniform federal common law are

important questions of federalism that require this

Court’s attention.

C. Separation Of Powers

The decision to make uniform federal common

law invokes the authority of the federal courts and

thus implicates the separation of powers.

First, the limited role of uniform federal common

law is a corollary of the limited power of federal courts

to make law. “Whether latent federal power should be

exercised to displace state law is primarily a decision

for Congress, not the federal courts.” Atherton v.

F.D.I.C., 519 U.S. 213, 218 (1997) (internal quotation

marks omitted). This is not to say that federal courts

14

should never make law, but only that their lawmaking

should be limited to “few and restricted” topics. See

O’Melveny & Myers v. F.D.I.C, 512 U.S. 79, 87 (1994)

(quoting Wheeldin v. Wheeler, 373 U.S. 647, 651

(1963)).

Second, the separation of powers questions

implicated by federal common law are even more

pressing when there is a federal statute on point.

Indeed, given that “federal common law is ‘subject to

the paramount authority of Congress.’ ” City of

Milwaukee, 451 U.S. at 313 (quoting New Jersey v.

New York, 283 U.S. 336, 348 (1931)), federal common

law contradicting a statutory command—as it does in

this case—is a particularly troubling affront to the

separation of powers. As this Court explained four

decades ago, “Our commitment to the separation of

powers is too fundamental to continue to rely on

federal common law by judicially decreeing what

accords with common sense and the public weal when

Congress has addressed the problem.” City of

Milwaukee, 451 U.S. at 315 (internal quotation marks

omitted).

Third, this case also invites this Court to address

the appropriate separation of powers considerations

in cases implicating foreign affairs. As this Court

noted in Jesner v. Arab Bank, PLC, 138 S. Ct. 1386

(2018), “Congress, not the Judiciary, is the branch

with the facilities necessary to make fairly such an

important policy decision where the possibilities of

international discord are so evident and retaliative

action so certain.” Id. at 1406 (internal quotation

marks omitted). At a minimum, issues of foreign

15

affairs call for the careful judicial attention to the

separation of powers that only this Court can provide.

D. The Twin Aims Of Erie

Famously, the decision in Erie R.R. Co. v.

Tompkins furthers twin aims: “discouragement of

forum shopping and avoidance of inequitable

administration of the laws.” Hanna v. Plumer, 380

U.S. 460, 468 (1965). This Court should provide

guidance to the lower courts on issues of horizontal

choice of law because they implicate both aims of Erie.

Horizontal choice of law implicates forum

shopping because if state and federal courts in the

same state applied different choice of law rules,

parties would have an incentive to shop for different

substantive law. Likewise, horizontal choice of law

implicates inequitable administration because if state

and federal courts in the same state applied different

choice of law rules, parties would be treated

differently depending on whether they had access to a

federal forum.

Importantly, the twin aims of Erie are also

implicated when federal courts apply different choice

of law rules depending on the basis of federal

jurisdiction, as the Ninth Circuit did in this case. If

the choice of law rule (and therefore the substantive

law) depended on the basis of federal jurisdiction,

parties would have the incentive to “shop” among

bases of jurisdiction. See Clopton, supra. Plaintiffs

might, for example, select among potential defendants

depending on whether they would qualify as agencies

or instrumentalities of foreign states. 28 U.S.C. §

1603(b). Defendants, too, might press arguments

16

about their “agency or instrumentality” status in

order to change the substantive law being applied.

The ability to affect the choice of law in some but not

all cases would thus result in the inequitable

administration of the law that Erie sought to avoid.

CONCLUSION

For the foregoing reasons, amici curiae

respectfully urge that the petition for a writ of

certiorari be granted.

May 24, 2021

Respectfully submitted,

CHARLES J. COOPER

Counsel of Record

P. DAVIS COOPER

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

ccooper@cooperkirk.com

Counsel for Amici Curiae

APPENDIX

1a

APPENDIX: LIST OF AMICI 1

Zachary D. Clopton

Professor of Law

Northwestern Pritzker School of Law

Professor Emily Behzadi

Assistant Professor of Law

California Western School of Law

Professor Andrew D. Bradt

Professor of Law

University of California, Berkeley School of Law

Professor Stephen B. Burbank

David Berger Professor for the

Administration of Justice

University of Pennsylvania Carey Law School

Professor Kevin M. Clermont

Robert D. Ziff Professor of Law

Cornell Law School

Professor Brooke D. Coleman

Associate Dean of Research &

Faculty Development

Professor of Law

Seattle University School of Law

Professor William S. Dodge

John D. Ayer Chair in Business Law

Institutions are listed for affiliation purposes only. All

signatories are participating in their individual capacity, not on

behalf of their institutions.

1

2a

Martin Luther King, Jr. Professor of Law

University of California, Davis School of Law

Professor Robin Effron

Professor of Law

Brooklyn Law School

Professor Kenneth S. Klein

Louis and Hermione Brown Professor of Law

Associate Dean for Assessment and Teaching

California Western School of law

Professor Glenn Koppel

Professor of Law

Western State College of Law

Professor Jennifer A. Kreder

Professor of Law

NKU-Chase College of Law

Professor Jonathan R. Nash

Associate Dean for Research

Robert Howell Hall Professor of Law

Emory University School of Law

Professor John T. Parry

Associate Dean of Faculty

Edward Brunet Professor of Law

Lewis & Clark Law School

Professor Maggie Gardner

Associate Professor of Law

Cornell Law School