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International Comity in American Law

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International Comity in American Law COLUMBIA LAW REVIEW VOL. 115 DECEMBER 2015 NO. 8 ARTICLES INTERNATIONAL COMITY IN AMERICAN LAW William S. Dodge* International comity is one of the principal foundations of U.S. for- eign relations law. The doctrines of American law that mediate the rela- tionship between the U.S. legal system and those of other nations are nearly all manifestations of international comity—from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to the doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government’s privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This Article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of in- ternational comity and a framework for analyzing its manifestations in American law; (2) to explain the relationship between international com- ity and international law; and (3) to challenge the myths that interna- tional comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch. INTRODUCTION ........................................................................................2072 I. A BRIEF HISTORY OF INTERNATIONAl COMITY......................................2084 A. From Huber to Mansfield..........................................................2085 B. American Beginnings ................................................................2087 C. New Roles...................................................................................2092 D. New Justifications.......................................................................2095 II. THE FACES OF COMITY .........................................................................2099 A. Prescriptive Comity....................................................................2099 *. Martin Luther King, Jr. Professor of Law, University of California, Davis, School of Law. My thanks to Pamela Bookman, Curtis Bradley, Stephen Bundy, Hannah Buxbaum, JanseN Calamita, Trey Childress, Anthony Colangelo, John Coyle, Joshua Davis, KristeN Eichensehr, Katherine Florey, Jean Galbraith, Geoffrey Hazard, Deborah Hensler, Mary Kay Kane, Chimène Keitner, Xandra Kramer, David Levine, Richard Marcus, David Moore, Joel Paul, Eric Posner, David Pozen, Zachary Price, Michael Ramsey, Kal Raustiala, Brett Scharffs, Linda Silberman, David Sloss, Adam Steinman, Paul Stephan, Spencer Waller, and Ingrid Wuerth for their comments, suggestions, and insights. 2071 2072 COLUMBIA LAW REVIEW [Vol. 115:2071 1. As a Principle of Recognition ............................................2100 2. As a Principle of Restraint..................................................2102 B. Adjudicative Comity...................................................................2105 1. As a Principle of Recognition ............................................2107 2. As a Principle of Restraint..................................................2109 C. Sovereign Party Comity..............................................................2116 1. As a Principle of Recognition ............................................2116 2. As a Principle of Restraint..................................................2117 D. Summary ....................................................................................2119 III. INTERNATIONAL COMITY AND INTERNATIONAl lAW...........................2120 IV. TWO MYTHS OF INTERNATIONAl COMITY ...........................................2124 A. Rules and Standards ..................................................................2125 B. The Role of the Executive Branch ............................................2132 CONCLUSION ............................................................................................2140 INTRODUCTION For a principle that plays such a central role in U.S. foreign relations law, international comity is surrounded by a surprising amount of confu- sion. The doctrines of AmericaN law that mediate the relationship be- tween the U.S. legal system and those of other nations are nearly all man- ifestations of international comity. Comity has long served as the basis for the conflict of laws1 and the enforcement of foreign judgments in the United States.2 Today, American courts also use international comity to restrain the reach of domestic law.3 The Supreme Court has repeatedly characterized foreign sovereign immunity as a “gesture of comity”4 and, conversely, has used comity to explain why foreign governments should be allowed to bring suit as plaintiffs in American courts.5 The act of state doctrine was once said to rest on “the highest considerations of interna- tional comity and expediency.”6 The Supreme Court has looked to inter- national comity to reinforce constitutional due process limitations on per- 1. See Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 589 (1839) (“[T]he laws of the one [country], will, by the comity of nations, be recognised and executed in another ....”). 2. See Hilton v. Guyot, 159 U.S. 113, 163 (1895) (noting enforcement of “judicial decree . depends upon what our greatest jurists have been content to call ‘the comity of nations’”). 3. See F. Hoffmann-La Roche Ltd. v. EmpagraN S.A., 542 U.S. 155, 169 (2004) (con- cluding “principles of prescriptive comity” limit U.S. antitrust law). 4. See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 696 (2004) (citing Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003)). 5. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408–09 (1964) (“Under principles of comity governing this country’s relations with other nations, sovereign states are allowed to sue in the courts of the United States.”). 6. Oetjen v. Cent. Leather Co., 246 U.S. 297, 303–04 (1918). 2015] INTERNATIONAl COMITY 2073 sonal jurisdiction.7 The Court has also told district courts to engage in a comity analysis when considering the discovery of evidence abroad for use in U.S. courts8 and the discovery of evidence in the United States for use in foreigN courts.9 Lower federal courts have used “international comity” as an abstention doctrine to defer to parallel proceedings in foreign courts,10 and alternatively to decide whether to enjoin the parties from continuing such proceedings.11 AmericaN law is full of international comity doctrines.12 Yet courts and commentators repeatedly confess that they do not re- ally understand what international comity means. Courts complain that comity “has never been well-defined.”13 They frequently refer to it as “vague”14 or “elusive.”15 One court recently observed that “[a]lthough comity eludes a precise definition, its importance in our globalized econ- omy cannot be overstated.”16 Scholars echo these complaints.17 They also point out that “courts appear to have little understanding of what exactly comity consists,”18 or at a minimum that courts are “not always clear or consistent.”19 As Trey Childress has noted, because there is “no clear ana- 7. See Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (noting “risks to interna- tional comity” posed by expansive view of general jurisdiction). 8. See Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 543–44 (1987) (noting “concept of international comity” requires “par- ticularized analysis” of discovery requests). 9. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 261 (2004) (“[C]omity and parity concerns may be important as touchstones for a district court’s ex- ercise of discretion in particular cases . .”). 10. See, e.g., Royal & Sun All. Ins. Co. of Can. v. Century Int’l Arms, Inc., 466 F.3d 88, 92 (2d Cir. 2006) (applying “doctrine of international comity abstentioN”). 11. See, e.g., China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 37 (2d Cir. 1987) (concluding factors favoring antisuit injunction “are not sufficient to overcome the restraint and caution required by international comity”). 12. For a recent discussion of domestic comity doctrines, see Gil Seinfeld, Reflections on Comity in the Law of American Federalism, 90 Notre Dame L. Rev. 1309, 1314–35 (2015) (surveying comity in law of American federalism). 13. JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir. 2005). 14. Turner Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. 1994). 15. Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 886 (9th Cir. 2012); Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 18 (1st Cir. 2004); Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 75 (3d Cir. 1994); Laker Airways Ltd. v. Sabena, BelgiaN World Airlines, 731 F.2d 909, 937 (D.C. Cir. 1984). 16. Goss Int’l Corp. v. Man Roland DruckmaschineN Aktiengesellschaft, 491 F.3d 355, 360 (8th Cir. 2007). 17. See Joel R. Paul, Comity in International Law, 32 Harv. Int’l L.J. 1, 4 (1991) [here- inafter Paul, Comity in International Law] (“[D]espite ubiquitous invocation of the doc- trine of comity, its meaning is surprisingly elusive.”); Anne-Marie Slaughter, Court to Court, 92 Am. J. Int’l L. 708, 708 (1998) (“Comity . .. is a concept with almost as many meanings as sovereignty.”). 18. Austen L. Parrish, Duplicative Foreign Litigation, 78 Geo. Wash. L. Rev. 237, 260 (2010). 19. Pamela K. Bookman, Litigation Isolationism, 67 Stan. L. Rev. 1081, 1103 (2015); see also Michael D. Ramsey,
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