...But none of this will matter much if there’s a loophole that ensures the Sept. 11 suit can’t go forward.
At the risk of oversimplifying some truly complex issues in the law of civil procedure, here’s the issue. In passing the bill, Congress was amending a law called the Foreign Sovereign Immunities Act. ...
...But the constitutional law that governs whom you can sue, and where, isn’t so simple -- and because it’s based on the Constitution, Congress can’t legislate around it. According to the Supreme Court’s interpretation, a U.S. court must have what is called “personal jurisdiction” over any defendant for a lawsuit to go forward.
Personal jurisdiction comes in two flavors, general and specific. It would be almost impossible for the courts to have general jurisdiction over the government of Saudi Arabia, because a foreign entity must be “at home” to be sued under current precedent. It was on this ground that the 2nd Circuit Court of Appeals recently rejected a lawsuit against the Palestinian Authority and Palestine Liberation Organization under the Anti-Terrorism Act. If the those groups are only “at home” in Ramallah, as the court held, the Saudi government is similarly only “at home” in Riyadh.
That leaves specific jurisdiction as the only way to haul the Saudi kingdom into court under the new bill. And the constitutional bar is probably higher than what Congress wrote into the law...
...Under this standard,.... The families would have to show that the kingdom intentionally aimed to cause harm in New York, or at least the U.S....
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