The instant decision should serve to stimulate discussion on both the theoretical justifications for and the practical implications of jury trials in actions against governmental defendants, and therefore, may lead to revision of the FSIA. From a theoretical perspective, although the instant court correctly noted the changes effected by the Act, it failed to perceive the full extent of Congress' power in the domestic context. Congress, by its ability to classify entities as "agencies" or "instrumentalities" of the United States, thereby exempting specific entities from the non-jury trial provisions of FTCA, has the power, in effect, to restrict the scope of the seventh amendment in actions against the United States. Congress' ability to define the term "foreign states" and thereby restrict the right to jury trial may also be justified through its' power to regulate commerce with foreign states. Further, the FSIA, although based on the restrictive theory of sovereign immunity and purporting to make suits against foreign states acting in their private capacities a matter of right, draws its nonjury trial provisions from the FTCA and Court of Claims legislation. The amenability of the United States to suit in tort and contract depends, however, on the absolute immunity theory, under which the right of action is subject to sovereign consent. Thus the FSIA, although based on the restrictive theory, preserves, perhaps incorrectly, the absolute immunity theory's prohibitions against jury trials. From a practical perspective, Congress considered the primary purpose of nonjury trials in actions against foreign states to be the need for decisional uniformity. Nevertheless, it is questionable whether such uniformity is attainable or desirable in cases heavily reliant upon factual determinations, such as presented in wrongful death or negligence actions.
James M. Redwine,
13 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol13/iss1/9