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Transactional Enforcement Discovery, Aaron D. Simowitz

Fordham Law Review

Joseph Stiglitz described the current Argentine sovereign debt crisis as “America throwing a bomb into the global economic system.” And yet, the U.S. Supreme Court decided to tackle only one head of this massive hydra. Presented with numerous issues arising from the controversy, the Court granted certiorari only on the issue of whether the Foreign Sovereign Immunities Act (FSIA) blocked Argentina’s creditors from obtaining discovery of Argentina’s worldwide financial transactions. Justice Scalia, writing for the Court, concluded that because the FSIA says nothing on its face about discovery—it says nothing about discovery.

But the majority did not grapple with the …