Choice of Law in Terrorism Cases in the District of Columbia

Image by David Mark from Pixabay

When an Iranian-backed terrorist group operating out of Lebanon detonates a bomb in Israel that kills a U.S. citizen domiciled in Texas, what law governs civil claims brought against Iran in the District of Columbia (DDC)? Some version of this choice-of-law question has been presented to the DDC many times over the past two decades. Its answers have been frustratingly inconsistent. In some cases, it has applied the law of the place of the attack. In others, it has applied the law of the plaintiff’s domicile. In still others, it has applied the law of the forum where the plaintiff brings the claim.

In a new article, Choice of Law in Terrorism Cases, I seek to makes sense of these inconsistent case outcomes. I begin by chronicling the legislative amendments to the Foreign Sovereign Immunities Act that opened the door to lawsuits against state sponsors of terrorism. I then discuss dozens of cases brought against these foreign sovereigns in the District of Columbia during two separate time periods. In the first period—spanning 2004 to 2008—the DDC performed a choice-of-law analysis in virtually every case. In the second period—spanning 2009 to 2024—the DDC performed a choice-of-law analysis only in cases brought by non-U.S. citizen family members of individuals injured or killed in terrorist attacks. In each period, the court ostensibly applied the choice-of-law rules of the District of Columbia. In a striking number of instances, however, the outcome of the choice-of-law analysis performed by the DDC is difficult to square with the rules articulated by local courts in the District.

The article then builds upon this descriptive account to advance four normative claims. First, it contends that the DDC consistently seeks to achieve systemwide “conflicts justice” at the expense of individualized “material justice” in terrorism cases. Second, it argues that multi-factor choice-of-law balancing tests tend to ossify into simpler rules over time. Third, it suggests that applying the tort law of the District of Columbia to claims with no meaningful connection to the District raises serious due process issues. Finally, it questions whether courts should even undertake a choice-of-law inquiry in cases where state sponsors of terrorism fail altogether to enter an appearance.

The article may be downloaded here.