The Restatements of Foreign Relations Law of the United States have been cited in recent noteworthy opinions. The Restatement Fourth, which is still in draft form, was cited in a federal circuit case—the first ever citation to that project. The Restatement Second and Restatement Third were cited in opinions delivered this term by the U.S. Supreme Court.
In Jerez v. Republic of Cuba, 775 F.3d 419, Dec. 30, 2014, the U.S. Court of Appeals for the District of Columbia Circuit affirmed a district-court ruling that a Florida state court lacked subjectmatter jurisdiction when it granted a default judgment against the Republic of Cuba. In that case, a former Cuban national attempted to enforce a $200 million default judgment that it had obtained in Florida state court against the Cuban government based on claims that he was unlawfully incarcerated and tortured in a Cuban prison in the 1960s and 1970s. The court held that “because no statutory exception to sovereign immunity under the FSIA applies, the Florida state court and the Florida district court lacked subject-matter jurisdiction.” The court cited the Reporters’ Note 2 to § 463 of Restatement Fourth, The Foreign Relations Law of the United States – Sovereign Immunity (Preliminary Draft No. 2, Nov. 5, 2014), in explaining that the FSIA contains a provision that “provides foreign sovereigns a special protection” for the reason that “‘the government is sometimes slow to respond and that the public fisc should be protected from claims that are unfounded but would be granted solely because the government failed to make a timely response.’”
In Jennings v. Stephens, 135 S. Ct. 793, Jan. 14, 2015 (No. 13- 7211), the U.S. Supreme Court reversed a Fifth Circuit judgment that held that the court lacked jurisdiction over one of a criminal defendant’s theories of relief because an underlying federalcourt judgment had granted habeas relief to the defendant on two other theories of relief but not the theory that was at issue. Justice Scalia, writing for the Court, rejected the state of Texas’s argument that “each additional basis [for habeas relief ] requires a cross-appeal.” The Court noted that “[c]ourts reduce their opinions and verdicts to judgments precisely to define the rights and liabilities of the parties,” and cited §§ 481-482 of Restatement Third, The Foreign Relations Law of the United States, for the example that “[p]arties seeking to enforce a foreign court’s decree do not attempt to domesticate an opinion; they domesticate a judgment.” The court also cited Restatement Second, Judgments § 27, and, in a dissenting opinion, Justice Thomas cited §§ 18 and 19 of that Restatement.
In Zivotofsky v. Kerry, 135 S. Ct. 2076, Jun. 8, 2015 (No. 13-628), the U.S. Supreme Court affirmed the judgment of the Court of Appeals for the District of Columbia Circuit, invalidating § 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, which directed the Secretary of State, if so requested, to record “Jerusalem, Israel,” rather than simply “Jerusalem” on the passports of American citizens born in Jerusalem. Justice Kennedy, writing for the majority, quoted § 204 of Restatement Third, The Foreign Relations Law of the United States, in concluding that the President “possesses the exclusive power of recognition” of a foreign state, and quoted the definition of “recognition” found in § 203 of that Restatement. In a dissent, Justice Scalia questioned whether enforcement of § 214(d) of the Act would amount to recognition at all, and argued that “§ 214(d) leaves the President free to dispel” any doubts about “whether the United States recognizes Israel’s sovereignty over Jerusalem” by “issuing a disclaimer of intent to recognize.” Citing Restatement Second, Foreign Relations Law of the United States § 104, he argued that such a disclaimer “always suffices to prevent an act from effecting recognition.”