By directing courts to focus on the narrow question of whether the validity of a sovereign act is at issue, the Court clears some of the confusion that has arisen over the scope of the doctrine. It is no longer sufficient for courts to cite the mere possibility of embarrassment to foreign governments as a rationale for applying this doctrine when those governments' acts are not at issue. This opinion overrules Hunt and Clayco and their progeny.' In reminding courts that they possess "the power, and ordinarily the obligation, to decide cases and controversies properly presented to them," 'the Court further directs United States courts to hear cases, and not to rely on doctrines such as act of state to refrain from deciding difficult international cases. The Supreme Court's decision also advances several United States policy goals. By precluding inquiry into the validity of a foreign state's acts but not into the motivation behind its acts, the Court limits the act of state doctrine to its proper scope which will better serve the ends of United States justice; the United States is concerned with the illegal activities of United States corporations abroad, not the illegal activities of foreign governments. The approach the Supreme Court espoused therefore both serves the policy goals behind laws such as the Foreign Corrupt Practices Act and the antitrust regulations at no expense to United States foreign relations and moreover assists those seeking private enforcement of the United States laws.
What is worrisome about the decision in Kirkpatrick is the Court's reliance on cases from the "vested rights" era of the act of state doctrine's jurisprudential development. These cases do provide needed precedent to decide the instant case: the act of state doctrine is implicated only when the validity of the acts of a foreign sovereign is at issue. Since Sabbatino, however, the doctrine is thought to be grounded in the constitutional doctrine of separation of powers." To the extent that the Court relies on outmoded vested rights notions of territorial sovereignty, the Court further muddies the already confusing legal basis for the act of state doctrine and provides opportunities for lower courts to do the same. Future courts should therefore read the decision in Kirkpatrick narrowly--the act of state doctrine is inapplicable when foreign sovereign acts are not at issue--and view the discussion of the legal foundation of the doctrine as an obiter dictum.
Mark D. Pethke,
22 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol22/iss5/5