Venezuela v. Helmerich: Will Formalism Win Over Substantive Law? Again?

The essay offers an analysis of Venezuela v. Helmerich & Payne International, a case to be argued before the Supreme Court on November 2. That case involves the interpretation and application of the Foreign Sovereign Immunities Act (FSIA). The question presented is whether, when pleading jurisdiction under the expropriation exception to the FSIA, a higher pleading standard should be employed, one under which it is necessary to show that there “actually is” a claim, essentially requiring the plaintiff to establish something more exacting than the plausibility standard. The Petitioners’ argument in Helmerich presents a classic example of arguing from a conception — sovereign immunity — to an abstract but controlling proposition of law. A more realistic approach, one that examines the facts, is put to the side in the interest of the conception. This essay resists that approach and promotes a jurisdictional and pleading analysis that is conducive to the evolution of substantive law and the enforcement of substantive rights.