This article argues that the Flatow Amendment does not provide a cause of action against a foreign state itself and, further, that judicial consultation of the State Department is appropriate and desirable in cases affecting foreign policy, such as those requiring interpretation of the Flatow Amendment. Part I analyzes early judicial interpretation of the Flatow Amendment, examine and critique the methodology of Cronin and its progeny, explain application of the Charming Betsy principle to this line of cases, and conclude that the Flatow Amendment provides a cause of action against the officials, employees, or agents of a foreign state, but not against the foreign state itself. Part II examines the constitutional foundations of the foreign relations power and its development in U.S. courts, and will explain the benefits of executive branch participation in cases that interpret the Flatow Amendment and that affect foreign policy.
Joseph Keller, The Flatow Amendment and State-Sponsored Terrorism, 28 SEATTLE U. L. REV. 1029 (2005).