Expanded Universe

Divided Argument

We catch up on some odds and ends, take a long detour through a debate about the merits of the Star Wars trilogies, and then dig into Türkiye Halk Bankasi A.S. v. United States (starting at 38:10), an interesting case about the scope of foreign sovereign immunity being heard in the January sitting. 

2023-01-14 76 min Transcript

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I want something that came up at various points and came up in this Feldman amicus brief written in part-- one of the lawyers on it is a friend of the show, Adam [unintelligible , which I thought was very well done, which is just like, look, the petitioners are just totally saying that the bank equals the state and it's a lot more complicated than that. If you look back at history, there wasn't this historical tradition of providing exactly the same level of immunity for commercial enterprises owned by states versus the states themselves. I felt like maybe I wanted to see more of that groundwork laid rather than just jumping straight to this treating this as if it's a prosecution against Turkey. Now, I think if we're in the FSIA world, then we have to treat them the same.
Will: I originally started following this case because my colleague Curt Bradley, friend of the show, Jack Goldsmith, was following it and writing about it and have some blog posts on Lawfare that get into this textual issue. They make another point just in terms of the purpose and structure of the FSIA that I found pretty powerful. I'm curious if you do. I didn't see this in the briefs anywhere, I didn't see [unintelligible respond to it, which is if the government is right, then can't states, not just the federal government, but couldn't any state also prosecute foreign instrumentalities?

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