Co-sponsored by: SMU LAW REVIEW ASSOCIATION,

INTERNATIONAL LAW REVIEW, and SCIENCE & TECHNOLOGY LAW REVIEW

Please direct all inquiries to John Sager at jsager@smu.edu

Law Review Write-On Competition

Information Packet

Note: The Write-On Competition Dates are May 12 – May 16, 2016

LAW REVIEW MEMBERSHIP INFORMATION

The SMU Law Review Association, International Law Review Association, and Science and Technology Law Review are student-run organizations composed of second and third year law students who are selected on the basis of first year grades and performance on the annual write-on competition. All SMU law students interested in joining one of the journals must participate in the write-on competition in the spring of their 1L year. Evening students are eligible to write on in the spring of their 2E year. JD/MBA students are required to wait until after they have completed both one JD year and one MBA year. In addition, current 2Ls and 3Es interested in journal membership may participate in the write-on competition (but may not grade-on). However, 2Ls and 3Es planning a December graduation and students who have declined past offers to join one of the SMU journals may not compete.

A committee composed of staff from the SMU Law Review scores competition packets anonymously. Each journal makes independent decisions concerning membership. Therefore, students participating in the competition may receive offers to join multiple journals. Students currently enrolled at SMU may NOT compete in the “Transfer Write-On Competition” in August.

SMU Law Review Association

There are two ways to become a member of the SMU Law Review Association. First, students in the top 10% of the 1L or 2E class who make a good faith effort in the competition automatically receive an offer. The second way to become a member is to perform well in the write-on competition. Students in the top 50%––but outside of the top 10%––are selected anonymously based on their performance in the write-on competition. Students must be in the top half of the first year class to be considered for membership on the SMU Law Review Association. Current 2Ls and 3Es are not eligible to grade on to SMULA.

Typically between 150 and 175 students participate in the write-on competition. In past years, between 45 and 50 students were invited to join the SMU Law Review Association. 1Ls are required to commit to the journal for two years. In the past, students who receive offers to join the SMU Law Review Association will be notified in mid-July. Students should be prepared to begin work on the journal as early as August 1.

International Law Review Association

The International Law Review Association (ILRA) also typically takes on 45 to 50 new students each year. Offers are automatically extended to those students who are in the top 25% of the 1L class who make a good faith effort on the write-on competition, with the remainder selected for their performance in the write-on competition. There is no grade cut-off for the ILRA. Students will begin taking part in the editing process as early as August 1. Please note that the ILRA requires a two-year commitment from 1Ls invited to join. However, 2Ls and 3Es may also write on to the ILRA.

SMU Science and Technology Law Review

The Science and Technology Law Review (STLR) typically takes 20-30 new students each year. Similar to the other law reviews, there are two ways to become a member of the STLR. Generally, students in the top 25% of the class who make a good faith effort in the write-on competition receive an offer depending on the needs of the journal. The remaining staff editors are selected based on their performance in the write-on competition. There is no grade cut-off for the STLR. Students will begin taking part in the editing process as early as August 1. All 1Ls who accept an invitation to join STLR are required to give a two-year commitment. 2Ls and 3Es may also write on to the STLR.

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Write-On Competition Dates

The 2015 write-on competition will begin at 9:00 a.m. on Thursday, May 12, and will end promptly at 9:00 a.m. on Monday, May 16. Interested students should attend one of the Law Review information sessions onApril 18, 2016. The write-on packet will be available online at:

http://smulawreview.law.smu.edu/About/Write-On-Information/Current-Competition.aspx

Honor Code Rules:

Participants are strictly prohibited from seeking or receiving any outside assistance with the write-on competition. This includes but is not limited to:

• Current law review members• Faculty members• Other write-on participants• Attorneys• Other law students• Work participants have done in the past• Writing Section: sources not included in the closed writing section• Editing/Bluebooking Sections: anything outside the Bluebook, Greenbook, legal or English

dictionary, the Texas Law Review MoUS or similar style guide, and “Edited Marks” handout

Participants will be required to sign an honor pledge stating that you neither gave nor received any assistance in the write-on competition.

• Participants who do not sign the pledge will be disqualified from the competition.• Participants who receive outside assistance in any form will be disqualified from the competition.

Questions:

• Please direct all inquiries to John Sager at jsager@smu.edu• For more information please visit the law reviews’ websites:

o SMULRA: http://www.smu.edu/lra/o ILRA: http://www.smu.edu/ilra/o STLR: http://www.smu.edu/csr/

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WHAT DO LAW REVIEW STAFF EDITORS DO?

During their first year of membership all law review members are considered Staff Editors. Law Review staff editors have two primary responsibilities: (1) editing and (2) writing. In addition, editors are required to attend monthly staff meetings and may be required to attend law review-related events and symposia. If a law review member seeks promotion to the Editorial Board during their second year of membership, these responsibilities may change markedly. Members of the Editorial Board perform a broad range of editing and managerial activities and are generally considered the leadership of the Law Review.

Cite Checks

Cite checks are the primary responsibility of staff editors and are essential to the operation of every journal. A staff editor assigned a cite check must locate and consult every source cited by the author. A typical law review article contains hundreds of footnotes, so the responsibility for checking the accuracy of the author’s citations is divided among several staff editors. Once each cited source has been verified, the staff editor is responsible for editing and verifying the Bluebook form of each citation. Finally, the staff editor reads the body of the article and makes whatever spelling or grammatical changes may be necessary. The number and length of cite checks will vary according to the publication. Most staff editors report spending between 40 and 60 hours on cite checks each semester.

Writing Requirements

Staff editors are also required to write two scholarly articles and, based on the quality of these articles, may have the opportunity to be published. Topics for these articles are selected under the supervision of a student member of the Editorial Board. In the fall, staff editors compose a Casenote, a short 10-15 page piece that focuses on a recent trial or appellate court decision. A well-written Casenote will typically describe the decision and then either applaud or critique the court’s ruling. Most staff editors spend between 20 and 30 hours researching and writing the Casenote.

In the spring, staff editors write a Comment, a 40-55 page analysis of an emerging area of the law. Writing the Comment requires extensive research into a particular field of law. Ultimately the student must take a position as to how the law is emerging, what these changes in the law mean, and whether the changes are appropriate. As with the Casenote, staff editors receive supervision from a student member of the Editorial Board in their topic selection, research, and writing. Staff editors should expect to spend 60 to 75 hours researching and writing the comment.

Benefits of Membership

5 hours of class credit (3 hours for 2L/3E year; 2 hours for 3L/4E year)o NOTE: Students who will be 3Ls and 4Es receive only 3 hours of total class credito NOTE: Students may opt to wait and use all 5 hours of credit in their 3L/4E year.

Membership fulfills General Writing (GW) requirement Opportunity to be published Opportunity to hone Bluebook and editing skills Opportunity to network with Law Review alumni and other practitioners in the area

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SMU LAW REVIEW ASSOCIATION The SMU Law Review & The Journal of Air Law and Commerce

The SMU Law Review Association (SMULRA) is a student-run organization responsible for publishing both the SMU Law Review and the Journal of Air Law and Commerce. The SMU Law Review is the flagship legal journal at SMU. The journal typically publishes four issues annually. Three of the issues tend to be generalist, while the fourth issue is the Annual Survey of Texas Law, focusing on recent evolutions in the state’s jurisprudence. The Journal of Air Law and Commerce is the preeminent journal in the field of aviation law—even extending its focus into the realm of aviation business. The student-members of the SMULRA participate in publishing both journals by soliciting submissions, selecting articles for publication, editing the articles, and distributing the completed journals to subscribers.

The SMULRA also organizes and hosts two annual symposia: the Corporate Counsel Symposium and the Air Law Symposium. Students participate in the symposia by recruiting speakers, advertising and marketing the event, organizing Continuing Legal Education accreditation in all fifty states, running the pre- and post-event conferences, and overseeing the actual symposia.

Qualifications: There are two ways to become a member of the SMULRA. First, students in the top 10% of the 1L class who make a good faith effort in the write-on competition automatically receive an offer. The remaining editors are selected anonymously according to their performance in the write-on competition. Students must be in the top half of the 1L class to be considered for membership in the SMULRA. In past years, between 45 and 50 students were invited to join the SMULRA.

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The International Law Review Association (ILRA) is responsible for the publishing and editorial process of SMU’s two international law journals: The International Lawyer (TIL) and Law & Business Review of the Americas (LBRA).

The International Lawyer is the official quarterly publication of the American Bar Association'sSection of International Law and Practice. TIL has grown to become one of the most widelydistributed U.S. international law reviews in the world, and it currently enjoys subscriptions ofover 17,000 readers (second only to the Harvard Law Review) in more than 75 countries. GivenTIL’s worldwide readership, the publication focuses primarily on practical issues ofinternational law, including international trade, licensing, direct investment, finance, taxation,litigation, and dispute resolution.

The Law & Business Review of the Americas is a student-edited, quarterly publication dedicatedto serving the informational needs of the global legal and business community. To achieve thisgoal, LBRA provides a forum in which academics, practitioners, policy makers, and studentsdiscuss the developments and controversies stemming from the legal, business, economic,political, and social dimensions of Western Hemispheric integration efforts (e.g. NAFTA,FTAA, MERCOSUR, etc.), as well as their implementation, evolution, and overall impact ondoing business in the Americas.

Given the subject matter of both of its journals, ILRA offers its members a unique opportunity to interact with a diverse range of issues and sources of international law. ILRA Members are responsible for checking citations and editing articles on topics of international law. During their first year, ILRA Members are also required to write both a Case Note and Comment on an emerging topic of international law.

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ILRA Membership Information: ILRA typically extends invitations to 45 to 50 new editors each year.

Offers are automatically extended to those students who are in the top 25% of the 1L classwho exhibit a good faith effort in the write-on competition.

Additional invitations will be extended based upon some combination of:(1) Performance in the write-on competition, (2) Class ranking, (3) A specific interest ininternational law, and (4) Foreign language skills.

ILRA will consider both rising 2Ls and rising 3Ls and 3Es in extending invitations to newmembers.

ILRA requires a two-year time commitment from rising 2Ls invited to join.

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Description The Science and Technology Law Review (STLR) typically takes 20-30 new students each year. Similar to the other law reviews, there are two ways to become a member of the STLR. Generally, students in the top 25% of the class who make a good faith effort in the write-on competition receive an offer depending on the needs of the journal. The remaining staff editors are selected based on their performance in the write-on competition. There is no grade cut-off for the STLR. Students will begin taking part in the editing process as early as August 15. All 1Ls who accept an invitation to join STLR are required to give a two-year commitment. 2Ls and 3Es may also write-on to the STLR.

Staff Editor Requirements STLR staff editors must perform both writing and editing tasks. Staff editors write a Case Note in the fall and a Comment in the spring. STLR staff editors enjoy a greater likelihood of publication and are more likely to hold an editorial board position during their second year. STLR publishes four issues each year. STLR’s cite checks are scheduled in advance to provide as much notification as possible so the staff editor can manage his or her time appropriately.

Symposia This year STLR will host a Healthcare Law symposium, which will focus on immerging technological issues as they relate to healthcare laws. The symposium will bring together professors, judges, lawyers, and other experts in the field to discuss health law trends and developments. Additionally, STLR hosts a rapidly growing IP symposium that has proven to be immensely popular with IP practitioners due to its focus on emerging issues. In response to the popularity of these symposia, STLR dedicates a full issue to the articles and information presented in each conference.

Commonly Asked Questions STLR’s focus extends beyond IP law to other issues involving the intersection of technology, science, and law. These topics include social media, e-commerce, the Internet, trademark, and copyright, as well as animal law, environmental issues, constitutional law, criminal law, privacy rights, and other innovative and interesting legal topics. Our members are not required to have a background in science. STLR members are encouraged to explore topics they believe are at the forefront of the legal conversation today as they relate to science and technology.

Still Have Questions? Reach out to anyone you know on the journal or feel free to send an email to one of the people below:

Editor-in-Chief: Evan Atkinson eatkinson@smu.edu Managing Editor: Farshad Marzban fmarzban@smu.edu Associate Managing Editor: Catherine Barbaree cbarbaree@smu.edu

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RULES AND REGULATIONS

The Write-On Problem Packet will be available beginning at 9:00am CST, Thursday, May 12, 2016.

There are two ways you may obtain a packet: (1) Download the PDF file packet located

at: http://smu.edu/lra/About/CurrentCompetitions.asp(2) Pick up a Problem Packet at AlphaGraphics by the SMU Bookstore (3032 Mockingbird

Lane, Dallas, TX 75205). Please note that you will be responsible for the copyingexpenses if you choose this option.

How to submit your entry: (1) If you are in Dallas or any surrounding area, you may return a hard copy of your

problem packet and a disk of your problem packet in the LRWA mailbox in theMailroom, 2nd story of Storey Hall (same slot that you turned in your memos and briefsfor LRWA). Entries must be received by 9:00am CST, Monday, May 16, 2016.o The disk should contain a copy of everything you submitted in hard copy form (the

entire problem packet). This includes the Editing, Bluebooking, and Writing sections.o The disk should NOT have anything written on the front. Absolutely nothing. No

name, SMU ID #, nor description of what documents are contained on the disk.Nothing.

o Please do not staple or hole punch your submissions. A simple paper clip or binderclip will suffice. Staples and hole punches may cause parts of your submission to bedamaged or lost when processed by the copy machines by the grading staff.

(2) If you are unable to submit your hard copy in person, please contact John Sager atjsager@smu.edu BEFORE THE WRITE-ON COMPETITION so that we can discuss alternativearrangements.

NO LATE ENTRIES WILL BE ACCEPTED!!!

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WRITE-ON EXERCISES DESCRIPTION

PART I: EDITING EXERCISE

• Everyone will be required to make all editing marks by HAND in RED ink.• All edits must be made in accordance with the “Editing Marks” handout provided in your

instruction packet.• You may NOT make edits electronically. This includes the “tracked changes” function.• The ONLY resources you are permitted to use in completing this section are:

1. Bluebook, 20th Edition2. Texas Rules of Form, 13th Edition (Greenbook)3. Texas Law Review Manual on Usage and Style 13th Edition (MoUS) or similar style guide

a. MoUS Availablehere: http://utdirect.utexas.edu/txshop/item_details.WBX?application_name=LOLSPUBS&component=0&dept_prefix=LO&item_id=130&cat_seq_chosen=04&subcategory_seq_chosen=003

4. Legal or English dictionary5. Editing Marks handout

• You may NOT use any other sources, including the cited sources themselves. Use of any outsidesources is a violation of the Honor Code and will result in your disqualification from the write-on competition.

• You are only responsible for making format, punctuation, and grammatical changes. You areNOT responsible for making stylistic changes (such as a passive voice or word choice issues).

• When editing the footnotes, please use the Bluebook rules specific to law review typefaceconventions (NOT practitioner’s typeface convention). Do NOT follow any rules on typefaceconventions in the Greenbook that conflict with those of the Bluebook.

• If the Bluebook requires the use of SMALL CAPS in a citation, use the appropriate “bold” editingmark (squiggly underline) for correcting any applicable errors (not the “set in small caps”editing mark: <<word>>). Note that, throughout the editing section, Bold and Underlinetypefaces are intentionally used in place of SMALL CAPS and Italics respectively.

• For purposes of the Editing Exercise, “recommended” or “encouraged” usage in the Bluebook ismandatory.

• All marks must be clear and easy to read to the extent possible.• TIP: It may help to make 2-3 extra copies of the editing portion. You may not need all of the

copies, but it may be hard to see all the errors if you try to edit everything on one copy.Nevertheless, you will turn in only ONE copy – the copy in which you have incorporated all yourediting from any and all other copies you may have used.

• If you are approved to submit your write-on packet electronically, you will need to scan theediting section in color and attach it with your email submission.

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PART II: BLUEBOOKING EXERCISE

• You will be given a certain number of sources that you must properly cite. • The ONLY resources you are permitted to use in completing this section are:

1. Bluebook, 20th Edition 2. Texas Rules of Form, 13th Edition (Greenbook) 3. Legal or English dictionary

• If there are discrepancies between the Bluebook and the Greenbook, follow the Bluebook. However, the Greenbook must be followed when dealing with Texas-specific material. For any other material, the Bluebook controls and must be followed.

• For Texas cases, any necessary petition/writ status and history will be provided to you as it appears in the Texas Subsequent History Table.

• When using the Bluebook, use the rules specific to law review typeface. Do NOT follow the practitioner’s typeface convention, and do NOT follow any rules on typeface conventions in the Greenbook that conflict with those of law review typeface convention in the Bluebook.

• If the Bluebook instructs you to use Small Caps, BOLD the part of the citation you wish to be in small caps, rather than actually changing the citation to small caps, so that we can more easily discern your intention.

PART III: WRITING EXERCISE

• You will be given a principle case, and you will be required to agree or disagree with the majority opinion and explain your reasoning based on other sources that will be provided to you.

• The Writing section is CLOSED such that you may ONLY use the sources provided to you in the write-on packet. You may NOT do any additional research. Researching outside the sources provided is a violation of the Honor Code and will result in disqualification from the write-on competition.

• The Writing section requires persuasive writing, not objective writing. You are arguing what the law should be, bolstered by sound legal arguments, NOT what the law is.

• THERE IS NO RIGHT OR WRONG ANSWER. The purpose of the writing section is to evaluate your ability to analyze legal arguments and communicate your conclusions in a clear and intelligent manner.

• There is NO mandatory judicial authority since there is no designated jurisdiction in which you are making your argument. You are merely fashioning the best legal arguments you can with the sources provided to you. The strength of the arguments, not the sources from which they are derived, is what is most important.

• The source materials are intended to provoke critical thought and encourage you to shape creative legal arguments. Therefore, you should not simply summarize the main case or the other sources. Your essay should reflect command of the materials you use, as well as very careful reasoning in the development of a thesis and supporting arguments.

• Do not hesitate to criticize court decisions if you believe a court’s analysis is flawed. • Your writing submission will have a length requirement of approximately 4-5 pages. • Use 12-point font for text and footnotes.

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• You MUST use FOOTNOTES for all citations. Footnotes are included in the page limit. o Footnotes: References tab Insert Footnote

• In constructing your footnotes, if the Bluebook instructs you to use SMALL CAPS, Bold the part of the citation you wish to be in small caps, rather than actually changing the citation to small caps, so that we can more easily discern your intention.

• A writing sample has been provided for you. Please remember, however, that this is only an example – it does not necessarily have to be used as a template for your writing submission either in organization, form, or substance.

Do NOT put your name on any part of the problem packet!

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STRUCTURE OF THE WRITING EXERCISE

1) Brief introduction containing the facts and holding in the main case and explaining the issuesyou will seek to resolve.

2) Critically analyze the case and determine whether the majority correctly or incorrectly decidedthe case. If the court decided the case incorrectly, critique and distinguish the court’s reasoning

based on the other legal arguments in the other sources you are given. If the court decided the case correctly, your analysis should be original based on the

court’s holding and the other sources and not merely a recitation of the court’s analysis. In your analysis you may (but you are not required to) address:

Whether the court reinterpreted, affirmed, overruled, modified, narrowed, orbroadened the prior law and whether doing so was correct or incorrect

Whether the court correctly interpreted the authorities on which it relied How the court handled opposing arguments The concerns of the concurring or dissenting opinions The extent to which the court’s holding will create future ambiguities in the law Whether the court’s reasoning is logical The assumptions, not necessarily articulated, that the court made to arrive at the

conclusion it did The weaknesses in the arguments contrary to your own conclusion The implications and ramifications of the court’s decision and how your own

analysis and conclusion may affect this area of the law

3) Conclude briefly. Address the main holding of the case, the major theories relied upon by thecourt, and the general desirability (or undesirability) of the court’s holding. You may (if youchoose) address whether the holding creates confusion or clarifies matters, and to what extentthe new rule promotes justice or merely substitutes one evil for another. Due to the generalnature of the statements in this section, the conclusion need not include many footnotes.

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LAW REVIEW TYPEFACE CONVENTION You will be required to use the “law review” typeface convention, as opposed to the “practitioner’s” (Bluepages) typeface convention, for your entire write-on entry (Editing, Bluebooking, and Writing sections). The practitioner’s typeface is what you were introduced to in your first-year legal writing class. Law review typeface differs from practitioner’s typeface in a few significant ways. The Whitepages of the Bluebook are what you will be working with both for the write-on entry and your time on law review. It is highly recommended that you read Rule 1.1 and the entirety of Rule 2 in the Bluebook Whitepages to better understand the law review typeface conventions that you will be required to apply to the text and footnotes of the three write-on sections.

• NOTE: In Bluebook Rule 2.1, there is a general comparison of typeface conventions used by most law reviews as well as alternatives used by a minority of law reviews. You must use the majority rule on the write-on.

To be clear, all of the examples throughout the Bluebook apply the law review typeface convention (unless expressly noted otherwise) so you are still responsible for ALL the rules in the Bluebook. The rules and examples laid out on the following page are specifically identified for your benefit to highlight the differences between the law review typeface convention (which you MUST use) and the practitioner’s convention you were taught in first-year legal writing (which you must NOT use if it differs from the law review typeface convention). Be aware that the “Bluepages” (literally blue) at the beginning of the Bluebook largely correspond to the practitioner’s typeface convention. As such, you must NOT use the “Bluepages” as guidance for creating or editing the text and footnotes in your write-on entry. But you may use the “Bluepages” to help point you to the correct Bluebook rule in the Whitepages, if you wish.

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The following are Bluebook rules explaining the law review typeface convention that you need to be aware of and that you MUST apply in the write-on competition. These rules show the main distinctions from the practitioner’s typeface you were taught in your 1L legal writing class. While the following rules highlight the main differences for your benefit, you are responsible for all Bluebook rules. The majority of Bluebook rules use the law review typeface convention, however, and will expressly tell you otherwise if they do not. CASE NAMES

• When citing a case in the text, you must italicize or underline the case name. The first time you use the case, you must use the full name. After that, you can use an identifying name (i.e., Lemon). BB 2.2(a).

o Example: In Small v. City of Houston, the Texas Supreme Court found that steroid testing was legal.

o Example: The court explained in Small how the public policy exception did not apply to the facts of the case.

• When citing a case in FULL in the footnotes, you do NOT italicize/underline the case name. BB 2.1(a).

o Example: Lochner v. New York, 198 U.S. 45 (1905). o NOT: Lochner v. New York, 198 U.S. 45 (1905).

• When citing the SHORT form of a case in the footnotes, you MUST italicize/underline the case name. BB 2.1(a).

o Example: Lochner, 198 U.S. 45 (1905). o NOT: Lochner, 198 U.S. 45 (1905).

• NOTE: For purposes of the write-on, italics and underlining are interchangeable. Please underline rather than italicizing, as it provides greater clarity to your intention. For example, a period that should be italicized or underlined may be counted as a mistake if it is unclear whether it is italicized or set in normal type.

SMALL CAPS • When citing a book, both the author and title must be in small caps. BB 2.1(b).

o Example: RICHARD KLUGER, SIMPLE JUSTICE (1976). • When citing a periodical, the periodical name is in small caps. BB 2.1(c).

o Example: Katharine K. Baker, Once a Criminal?, 110 HARV. L. REV. 563 (1997). • NOTE: You are responsible for identifying and using small caps (also called large and small caps)

in ALL three sections of the write-on in accordance with the Bluebook rules (not simply these two rules shown here).

o In each section, indicate the use of small caps by BOLDING the part of the citation that requires it.

o Do NOT use the editing mark for small caps (<<word>>)

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WRITING EXERCISE SAMPLE SUBMISSION

In Yousuf v. Samantar, the Fourth Circuit concluded that the Foreign Sovereign

Immunities Act (FSIA), which protects foreign states and their agencies or instrumentalities from

suits in U.S. courts, does not extend immunity to individual foreign officers acting within the

scope of their official state duties.1 The Fourth Circuit reached this holding by erroneously

concluding that individual foreign officers do not fall within the definition of agencies or

instrumentalities of a foreign state for purposes of the FSIA. The court improperly strayed from

the majority view on sovereign immunity and ignored legislative intent, thereby clouding this

area of law, politicizing immunity decisions, and thickening district court dockets.

The Fourth Circuit’s holding in Yousuf is incorrect for three reasons. The holding goes

against the Fourth Circuit precedent in Velasco v. Government of Indonesia, it disregards the

legislative history and intent of the FSIA, and it duplicates the efforts of federal district courts in

sovereign immunity claims. The Velasco court noted that “[c]laims against the individual in his .

. . capacity [as a state official] are the practical equivalent of claims against the foreign state.”2

The Yousuf court, however, concluded that “Velasco was not about whether an individual

government official was entitled to sovereign immunity . . . . Rather, it was about whether the

[foreign] government was bound, through agency principles, by the unauthorized acts of

individual government officials.” Yet, according to agency law, an individual may bind an entity

only if he is an agent of that entity. Therefore, if the Velasco court found that an individual

could bind his government through agency principles, then it de facto held that such an

individual, by his ability to bind the government, is an agent of that government. As an agent of 1 Make sure your footnotes are 12-point Times New Roman font and double-spaced.

2 Both the footnote numbers and the footnote citations must be 12-point Times New Roman font.

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the government, such an individual would necessarily fall under the umbrella of the FSIA,

making the analysis and holding in Velasco directly applicable and precedential to the Yousuf

case. Because Velasco is precedential, the Yousuf holding goes against both the majority of its

sister circuits, as well as its own circuit, in order to support an incorrect interpretation of the

FSIA. The court in Yousuf incorrectly interpreted the FSIA because it disregarded legislative

intent by taking away the certainty that the FSIA was intended to instate, failing to look at the

pre-1976 sovereign immunity law that the FSIA codified, and transferring the job of determining

immunity back to the Executive Branch. First, the Yousuf holding re-introduced uncertainty

regarding foreign sovereign immunity law that Congress intended the FSIA to eradicate. The

House committee report on the FSIA states that it was enacted because “[a]t present, there are no

comprehensive provisions in our law available to inform parties when they can have recourse to

the courts to assert a legal claim against a foreign state.” If government officials acting in their

official capacity are not included in the FSIA, it is unclear whether or in what circumstances

government officials have sovereign immunity. This lack of clarity is precisely what Congress

intended to eliminate by enacting the FSIA, and what the Fourth Circuit reinstated with its

interpretation of the statute.

Second, the court failed to recognize that the FSIA, when enacted, codified the existing

common law of sovereign immunity, which—according to the Restatement (Second) of Foreign

Relations Law—extended to the “head of state . . . [or] any other public minister, official, or

agent of the state with respect to acts performed in his official capacity.” Since the FSIA was

intended to codify the prevailing common law, it must include some individuals within its sweep.

Otherwise, the FSIA would not have codified, but seriously altered, preceding common law. The

Yousuf court itself recognizes that Samantar could “successfully invoke an immunity doctrine

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arising under pre-FSIA common law.” If the FSIA codified the pre-FSIA common law

immunity doctrine, then why would Samantar need to go back to that same common law to find

sovereign immunity?

Third, Congress intended that the FSIA “discontin[ue] the practice of judicial deference

to suggestions of immunity from the executive branch;” interpretation of the FSIA is “a pure

question of statutory construction.” By holding that the FSIA does not encompass individuals

acting within the scope of their official duties, the court brings the Executive Branch back into

the determination of sovereign immunity. Under the Yousuf holding, “Samantar and future

defendants will have to rely on [pre-FSIA] ‘common law immunities,’” meaning that immunity

will be “subject to the opinion of the Executive Branch as articulated by the State Department as

to whether [common-law] act of state or head of state immunity should apply.” This is contrary

to the congressional intent that the FSIA “depoliticize sovereign immunity decisions.” Further,

the Yousuf holding will substantially increase suits in district courts. The Yousuf rule “will

encourage more suits against properly immune defendants . . . and force them to litigate on the

merits in order to avail themselves of common law immunities.” As the Fourth Circuit admitted,

defendants such as Samantar and other foreign top officials may very well gain immunity under

common law. Therefore, excluding from the FSIA such individuals acting within the scope of

their official duties does not serve to “punish” those who would otherwise evade justice, but

rather serves only to clog federal district courts with civil litigation on the merits against

defendants who likely have immunity through other avenues. Even if individuals acting in their

official capacities do have immunity under the FSIA, they are by no means escaping recompense

for their wrongdoings. There are other means by which plaintiffs may reach these defendants:

courts may certainly conclude that government officials, by committing acts of torture, are not

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within the scope of their official state duties and are thereby unprotected under the FSIA.

Further, as the Second Circuit noted, “[d]eterrence (or punishment) does not begin and end with

civil litigation” because “[o]ur government has other means at its disposal—sanctions, trade

embargos, diplomacy, military action—to . . . deter (or punish) foreign sovereigns.”

In Yousuf v. Samantar, the Fourth Circuit should not have excluded individuals acting

within the scope of their official duties from immunity under the FSIA, disregarding both its

sister circuits and its own circuit’s precedent. The Fourth Circuit ignored legislative history by

clouding an area of law that the FSIA meant to clarify, by disregarding the common law that the

FSIA codified, and by politicizing an area of law that Congress intended the FSIA to

depoliticize. By overlooking the key difference between individuals acting for personal reasons

and those acting pursuant to official duties, the Fourth Circuit substantially departed from the

legislative intent of the FSIA and will promote further litigation for defendants, who may already

be immune under the common law and who should be forced to provide redress for their

wrongdoings by alternative methods. While individuals such as Samantar should indeed pay

recompense to the civilians they harmed, excluding individuals acting within the scope of their

official duties from the FSIA is not the proper avenue.

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