47 Winter 2026 To reach this result, the Court applied standards developed for tangible property and failed to acknowledge, let alone evaluate, the difference between it and money which is intangible property. Consequently, the Court drastically and improperly narrowed the exception to immunity Congress intended when property is taken in violation of international law.13 Money is not merely fungible; it is intangible property.14 As the Supreme Court explained more than 85 years ago: When we deal with intangible property, such as credits and choses in action15 generally, we encounter the difficulty that by reason of the absence of physical characteristics they have no situs in the physical sense, but have the situs attributable to them in legal conception.16 Thus, there are “[v]ery different considerations, both theoretical and practical, [that] apply to … intangibles, that is, rights which are not related to physical things.”17 Such rights are but relationships between persons, natural or corporate, which the law recognizes by attaching to them certain sanctions enforceable in courts. … These are not in any sense fictions. They are indisputable realities.18 The Court has long recognized a “cleavage between the rules of law applicable to tangibles and those relating to intangibles.”19 The approach to tangibles originated, it has stated, “in the tendency of the mind to identify rights with their physical subjects.”20 Congress was clearly aware of this significant distinction between tangible and intangible property when it enacted the expropriation exception. The statutory language21 addresses “rights in property,” not just “property” in the physical sense. As the Supreme Court reconfirmed just four days after deciding Simon, “when Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice” — as it did in referring in the FSIA to “rights in property” — “it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.”22 Nevertheless, in evaluating Congress’s expropriation exception, the Court failed to analyze the case in the context of intangible property and the courts’ longaccepted specialized understanding of its distinctive qualities. Instead, in Simon the Court employed principles 13. The D.C. Circuit recognized the extreme curtailment of the expropriation exception resulting from the approach ultimately taken by the Supreme Court. The Circuit Court explained that this approach could “thwart most claims under the expropriation exception: A foreign sovereign would need only commingle the proceeds from illegally taken property with general accounts to insulate itself from suit under the expropriation exception. We decline to ascribe to Congress an intent to create a safe harbor for foreign sovereigns who choose to commingle rather than segregate or separately account for the proceeds from unlawful takings.” Supra note 6, at 1118. 14. City of Milwaukee v. Koeffler, 116 U.S. 219, 222 (1886); see also Delaware v. New York, 507 U.S. 490, 494 (1993) (“funds” are “intangible personal property”). 15. A “chose in action” is “an interest in property not immediately reducible to possession … includ[ing] a financial interest such as a debt, a legal claim for money, or a contractual right.” Sprint Communications Co., L.P. v. APCC Services, Inc., 554 U.S. 269, 275 (2008) (citations and quotation marks deleted). 16. Wheeling Steel Corp. v. Fox, 298 U.S. 193, 209 (1936). In Harris v. Balk, 198 U.S. 215, 223 (1905), the Court had acknowledged that “possession cannot be taken of a debt or of the obligation to pay it, as tangible property might be taken possession of.” 17. Curry v. McCanless, 307 U.S. 357, 365 (1939). 18. Id., at 365-66. 19. Id., at 364. 20. Ibid. 21. 28 U.S.C. § 1605(a)(3). 22. Lackey v. Stinnie, 604 U.S. 192, 200 (2025) (quotation marks and citations deleted). 23. 604 U.S. at 127. derived from tangible property, yielding a result clearly out of sync with the intangible property at issue. Specifically, the Court reasoned that the statutory language — referring to the confiscated “rights in property” or “any property exchanged for such property” — “inevitably requires that plaintiffs show a tracing of some sort that explains the property’s lineage and how it found itself in the United States.”23 The Hungarian plaintiffs had alleged the unlawful seizure and liquidation of their property and the deposit of the proceeds into Hungary’s general treasury. Neither defendant had asserted (nor could it) that it had paid the plaintiffs’ claims from its treasury or withdrawn the
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