Document Type

Article

Publication Title

Southern California Law Review

Volume

(Forthcoming)

Publication Date

2020

Keywords

supreme court, justice scalia, federal courts, international, common law

Abstract

A chorus of critics, led by the late Justice Scalia, have condemned the practice of federal courts’ refraining from hearing cases over which they have subject-matter jurisdiction on the basis of international comity—respect for the governmental interests of other nations. They assail the practice as unprincipled abandonment of judicial duty and unnecessary given statutes and settled judicial doctrines that amply protect foreign governmental interests and guide the lower courts. But existing statutes and doctrines do not give adequate answers to the myriad cases in which such interests are implicated given the scope of present-day globalization and features of the U.S. legal system that attract foreign litigants. The problem is ubiquitous: four cases decided in the Supreme Court’s 2017 October Term implicated international comity and illuminate the Court’s difficulty grappling with these issues.

This Article cuts against prevailing academic commentary (endorsed by the newly-minted Restatement Fourth on the Foreign Relations Law of the United States) and presents the first sustained defense of the widespread practice of international comity abstention in the lower federal courts—a practice the Supreme Court has not yet passed upon but will almost certainly decide soon. At the same time, we acknowledge that the critics are right to assert that the way lower courts currently implement international comity—through a multi-factored interest analysis—is too manipulable and invites judicial shirking. Consequently, we propose a new federal common law framework for international comity drawn from historical practice from the Founding to the early twentieth century when the federal courts frequently dealt with cases implicating foreign governmental interests with scant congressional or executive guidance, primarily in the maritime context. What is called for is forthright recognition of a federal common law doctrine of international comity that has four essential elements: 1) measured executive deference; 2) consideration of reciprocal treatment; 3) guidance and sometimes direction from relevant legislation and treaties; and 4) awareness of the implications of foreign parallel proceedings. This doctrinal reformulation enables courts to exercise principled discretion in dealing with alleged foreign governmental interests and clears up conceptual confusion between prescriptive and adjudicative manifestations of international comity

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