International Comity in American Law

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 confu­sion. The doctrines of American law that mediate the relationship be­tween the U.S. legal system and those of other nations are nearly all man­ifestations of international comity. Comity has long served as the basis for the conflict of laws 1 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 . . . .”). ... Close and the enforcement of foreign judgments in the United States. 2 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’”). ... Close Today, American courts also use international comity to restrain the reach of domestic law. 3 3 See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 169 (2004) (con­cluding “principles of prescriptive comity” limit U.S. antitrust law). ... Close The Supreme Court has repeatedly characterized foreign sovereign immunity as a “gesture of comity” 4 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)). ... Close and, conversely, has used comity to explain why foreign govern­ments should be allowed to bring suit as plaintiffs in American courts. 5 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.”). ... Close The act of state doctrine was once said to rest on “the highest considerations of interna­tional comity and expediency.” 6 6 Oetjen v. Cent. Leather Co., 246 U.S. 297, 303–04 (1918). ... Close The Supreme Court has looked to inter­national comity to reinforce constitutional due process limitations on per­sonal jurisdiction. 7 7 See Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (noting “risks to interna­tional comity” posed by expansive view of general jurisdiction). ... Close 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. courts 8 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 “par­ticularized analysis” of discovery requests). ... Close and the discovery of evidence in the United States for use in foreign courts. 9 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 ex­ercise of discretion in particular cases . . . .”). ... Close Lower federal courts have used “international comity” as an abstention doctrine to defer to parallel proceedings in foreign courts, 10 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”). ... Close and alternatively to decide whether to enjoin the parties from continuing such proceedings. 11 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”). ... Close American law is full of international comity doctrines. 12 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). ... Close

Yet courts and commentators repeatedly confess that they do not re­ally understand what international comity means. Courts complain that comity “has never been well-defined.” 13 13 JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir. 2005). ... Close They frequently refer to it as “vague” 14 14 Turner Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. 1994). ... Close or “elusive.” 15 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). ... Close One court recently observed that “[a]lthough comity eludes a precise definition, its importance in our globalized econ­omy cannot be overstated.” 16 16 Goss Int’l Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 360 (8th Cir. 2007). ... Close Scholars echo these complaints. 17 17 See Joel R. Paul, Comity in International Law, 32 Harv. Int’l L.J. 1, 4 (1991) [here­inafter Paul, Comity in International Law] (“[D]espite ubiquitous invocation of the doc­trine 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.”). ... Close They also point out that “courts appear to have little understanding of what exactly comity consists,” 18 18 Austen L. Parrish, Duplicative Foreign Litigation, 78 Geo. Wash. L. Rev. 237, 260 (2010). ... Close or at a minimum that courts are “not always clear or consistent.” 19 19 Pamela K. Bookman, Litigation Isolationism, 67 Stan. L. Rev. 1081, 1103 (2015); see also Michael D. Ramsey, Escaping “International Comity,” 83 Iowa L. Rev. 893, 893 (1998) (“‘International comity’ is frequently invoked by courts but rarely defined with precision.”). ... Close As Trey Childress has noted, because there is “no clear ana­lytical framework” for exercising international comity, “courts have been left to cobble together their own approach.” 20 20 Donald Earl Childress III, Comity as Conflict: Resituating International Comity as Conflict of Laws, 44 U.C. Davis L. Rev. 11, 51 (2010); see also Lawrence Collins, Comity in Modern Private International Law, in Reform and Development of Private International Law 89, 110 (James Fawcett ed., 2002) (“The vast amount of material [on comity] cries out for some synthesis . . . .”). ... Close

Confusion also surrounds the relationship between international com­ity and international law. Although doctrines of international comity some­times overlap with rules of international law, the comity doctrines are do­mestic law and are generally not required by international law. 21 21 See infra Part III (explaining differences between international comity and inter­national law). ... Close For ex­ample, no rule of customary international law requires the United States to recognize the judgment of a foreign court, 22 22 See Restatement (Third) of the Foreign Relations Law of the United States ch. 8, intro. note at 591 (Am. Law Inst. 1987) (“[T]here are no agreed principles governing re­cognition and enforcement of foreign judgments, except that no state recognizes or en­forces the judgment of another state rendered without jurisdiction over the judgment debtor.”). ... Close to treat a foreign act of state as valid, 23 23 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421 (1964) (“That inter­national law does not require application of the [act of state] doctrine is evidenced by the practice of nations.”). ... Close or to allow foreign governments to bring suit as plain­tiffs in U.S. courts. 24 24 See James Crawford, Brownlie’s Principles of Public International Law 157 (8th ed. 2012) (noting while some countries allow recognized governments to sue in local courts, “great caution is needed in using municipal cases to establish propositions about recogni­tion in general international law”). ... Close And yet the Supreme Court often seems to treat interna­tional comity and international law as interchangeable. 25 25 See infra notes 287–288 and accompanying text (citing cases in which Court equates international comity with international law). ... Close

Part of the problem is the Supreme Court’s 1895 definition of com­ity in Hilton v. Guyot, which courts often take as their point of departure:

“Comity,” in the legal sense, is neither a matter of absolute ob­ligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation al­lows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws. 26 26 Hilton v. Guyot, 159 U.S. 113, 163–64 (1895). Westlaw shows more than 470 quotations of this passage, or parts of it, by state and federal courts since Hilton. See WestlawNext, http://westlawnext.com (last visited Sept. 25, 2015) (in All State & Federal, search: (comity /s “absolute obligation”) (recognition /s “within its territory” /s “acts of another nation”) (“due regard” /s “international duty” /s “rights of its own citizens”) and Hilton). ... Close

This definition of comity is both incomplete and ambiguous. Speaking only of “recognition,” Hilton fails to capture doctrines that restrain the application of U.S. law and the jurisdiction of U.S. courts. Speaking only of “acts,” this definition leaves out foreign sovereign immunity and a for­eign state’s privilege of bringing suit in U.S. courts, both of which the Supreme Court had recognized as manifestations of international comity well before Hilton was decided. 27 27 See The Sapphire, 78 U.S. (11 Wall.) 164, 167 (1870) (recognizing privilege of bringing suit on basis of comity); The Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 353 (1822) (characterizing foreign sovereign immunity as resting on “principles of public com­ity and convenience”). ... Close Hilton is also fundamentally ambiguous about whether comity binds U.S. courts and, if so, whether it binds them as a matter of international or domestic law. If comity is “neither a matter of absolute obligation . . . nor of mere courtesy and good will,” 28 28 Hilton, 159 U.S. at 163–64. ... Close what is it? Is there an “international duty” 29 29 Id. at 164. ... Close to extend comity, or is it simply a question of “convenience”? 30 30 Id. ... Close As a recent commentator has observed, Hilton’s definition of comity is “woefully inadequate.” 31 31 Childress, supra note 20, at 34. ... Close

The supposedly indeterminate nature of comity has long made it an object of criticism. Judge Cardozo called comity a “misleading word” that “has been fertile in suggesting a discretion unregulated by general prin­ciples.” 32 32 Loucks v. Standard Oil Co. of N.Y., 120 N.E. 198, 201–02 (N.Y. 1918) (Cardozo, J.) (internal citation omitted). For further examples of criticism of comity, see infra notes 317–321 and accompanying text. ... Close Comity’s connection to foreign relations has led some to con­clude that international comity determinations would be better made by the executive branch than by courts. 33 33 See Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 Yale L.J. 1170, 1177 (2007) (“[T]here are strong reasons, rooted in constitutional under­standings and institutional competence, to allow the executive branch to resolve issues of international comity . . . .”). ... Close Yet this suggestion raises problems of its own. Many judges resist the notion that the Executive should be able to dictate results in particular cases. 34 34 See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 735 (2004) (Kennedy, J., dissenting) (observing “judicial independence . . . is compromised by case-by-case, selec­tive determinations of jurisdiction by the Executive”). Recent scholarship suggests that the Supreme Court as a whole has become more skeptical of deference to the executive branch in foreign relations cases. See Harlan Grant Cohen, Formalism and Distrust: Foreign Affairs Law in the Roberts Court, 83 Geo. Wash. L. Rev. 380, 437 (2015) (“The Court is skeptical of the executive branch’s claims that it knows better, that it should not be second-guessed, and that it needs room to maneuver in a dangerous world.”); Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign Relations Law, 128 Harv. L. Rev. 1897, 1930 (2015) (“In recent years, however, the Court has delivered a series of defeats to the executive branch in cases on executive power and statutory interpretation.”). ... Close And even the executive branch has concluded, in the context of foreign state immunity, that case-by-case discretion does not help U.S. foreign relations. 35 35 See infra notes 404–410 and accompanying text (discussing passage of Foreign Sovereign Immunities Act). ... Close

It is something of an embarrassment for U.S. foreign relations law that so many of its doctrines depend on a principle that is poorly defined and arguably leads to unbounded discretion either by the courts or by the executive branch. Michael Ramsey has argued that because “the phrase ‘international comity’ adds nothing—and obscures much—in judicial discourse,” it “should be abandoned.” 36 36 Ramsey, supra note 19, at 951–52. ... Close This Article takes a different ap­proach. It aims to rescue international comity from disrepute and sup­port its critical role in U.S. foreign relations law by providing a clearer view of both the underlying principle and its manifestations in American law.

More specifically, this Article makes three contributions to under­standing international comity in American law. First, it offers a clearer and more comprehensive definition of comity than Hilton v. Guyot, as well as a framework for analyzing international comity doctrines. It catalogues and categorizes the uses of international comity in American law, based on a reading of all the U.S. Supreme Court opinions mentioning “comity,” as well as a number of lower court decisions. This categorization shows that courts have used international comity to defer to foreign lawmakers, to foreign courts, and to foreign governments as litigants, and that interna­tional comity has operated in each category both as a principle of recog­nition and as a principle of restraint. The result is the first comprehen­sive account of international comity applied by U.S. courts. 37 37 A number of prior articles have discussed international comity in American law, but each has been restricted in some way. Eric Posner and Cass Sunstein consider only the presumption against extraterritoriality, the act of state doctrine, foreign sovereign immun­ity, and the Charming Betsy canon (which is not really a comity doctrine, see infra notes 46–48 and accompanying text), though they briefly allude to other doctrines without explain­ing them. See Posner & Sunstein, supra note 33, at 1179–80 (listing Charming Betsy canon, presumption against extraterritoriality, act of state doctrine, foreign sovereign immunity, and “comity in general” as “comity doctrines”). Jansen Calamita, Trey Childress, and Anne-Marie Slaughter are concerned only with adjudicative comity. See N. Jansen Calamita, Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings, 27 U. Pa. J. Int’l Econ. L. 601, 624–78 (2006) (discussing principles of “adjudicatory” comity); Childress, supra note 20, at 63 (limiting analysis “to one species of comity, adjudi­catory comity”); Anne-Marie Slaughter, A Global Community of Courts, 44 Harv. Int’l L.J. 191, 205–10 (2003) [hereinafter Slaughter, A Global Community of Courts] (discussing emergence of “judicial comity”). Michael Ramsey expressly limits his consideration of comity to the recognition of foreign acts. See Ramsey, supra note 19, at 896 n.16 (“I speak here and throughout this Article only of ‘international comity’ used in connection with the ‘effect-of-foreign-acts’ inquiry.”). Neither Joel Paul nor Spencer Waller attempt to distinguish dif­ferent uses of comity, Paul because his focus is on the comparative use of comity in differ­ent legal systems, and Waller because he thinks courts should engage in a single, omnibus comity inquiry. See Paul, Comity in International Law, supra note 17, at 27 (examining “how courts in other legal systems use either the classical doctrine or the broader notion of comity to manage conflicting public policies between sover­eign states”); Spencer Weber Waller, A Unified Theory of Transnational Procedure, 26 Cornell Int’l L.J. 101, 102 (1993) (proposing “single omnibus comity inquiry conducted as early as possible in the litigation process”). Moreover, with the exception of Posner and Sunstein, none of these Articles consider “sovereign party comity”—that is, foreign sovereign immunity and the recogni­tion of foreign sovereigns as plaintiffs.
For discussions of international comity in English law, see generally Adrian Briggs, The Principle of Comity in Private International Law, 354 Recueil des Cours 65 (2011) (surveying international comity’s application in English caselaw); Collins, supra note 20, at 95–110 (discussing manifestations of international comity in English law). For considera­tion of international comity in other countries in the specific context of competition law, see generally Cooperation, Comity, and Competition Policy (Andrew T. Guzman ed., 2011) (discussing comity and antitrust in laws of the European Union, Brazil, Japan, and Israel, among others). ... Close

Second, this Article explains the critical distinction between interna­tional law and international comity. International law binds the United States on the international plane, while international comity allows the United States to decide for itself how much recognition or restraint to give in deference to foreign government actors. In some areas of foreign relations law, like sovereign immunity and prescriptive jurisdiction, doc­trines of international comity are layered on top of rules of international law. In other areas, international comity does all of the work. Interna­tional comity thus describes an internationally oriented body of domestic law that is distinct from international law and yet critical to legal relations with other countries.

Third, this Article uses its categorization of international comity doc­trines to challenge two enduring myths about comity: (1) that comity must be governed by standards rather than rules; and (2) that comity determi­nations are best left to the executive branch. The Article shows that courts frequently express doctrines of international comity as rules rather than standards, and that allowing courts to apply these doctrines without in­ter­ference by the executive branch promotes not just the rule of law but al­so U.S. foreign relations.

This Article’s definition of international comity is based on a reading of all the U.S. Supreme Court cases that use the word “comity” 38 38 As of September 25, 2015, there were 637 such cases. See WestlawNext, http://
next.westlaw.com (last visited Sept. 25, 2015) (in U.S. Supreme Court, search: “comity”). The author read all 637 cases and eliminated those that discussed comity only in a domestic context, leaving more than 100 Supreme Court cases relevant to “international comity.” Id. ... Close as well as a large number of lower court cases. This approach reflects the suppo­sition that courts using the term have the sense, however inchoate, that a common principle lies behind certain doctrines. Once the doctrines that seem to rest at least in part on international comity were identified, it became clear that each involved deference to foreign lawmakers, to for­eign courts, or to foreign governments as litigants. It also became clear that some doctrines worked to recognize foreign acts or actors and that some worked to restrain U.S. acts or actors. 39 39 Recognition and restraint are often related. Recognizing foreign law as applicable to a particular case, for example, often means restraining the application of domestic law to that case. For further discussion of the interplay between recognition and restraint, see infra note 286 and accompanying text. ... Close Based on this survey, this Article adopts a functional definition of international comity that captures its uses in American law today: International comity is deference to foreign gov­ernment actors that is not required by international law but is incorporated in domestic law.

This Article’s definition of international comity differs from Hilton’s in several respects. First, international comity is not just recognition but deference—a word that captures comity’s use both as a principle of recog­nition and as a principle of restraint. Second, international comity is not just deference to foreign acts; it is deference to foreign government actors, a phrase that captures the use of international comity with respect to a foreign court prior to judgment, as well as the use of international comity in relation to foreign governments as plaintiffs or defendants in U.S. courts. Third, international comity is not international law, though the uses of international comity have changed in relation to changes in inter­national law. And fourth, international comity is domestic law—that is to say, the principle of international comity is manifested in a number of dif­ferent domestic doctrines that U.S. courts are bound to follow. 40 40 This Article is limited to doctrines of international comity applied by U.S. courts. It therefore excludes international comity by the executive branch in the exercise of its own authority. See, e.g., U.S. Dep’t of Justice & FTC, Antitrust Enforcement Guidelines for International Operations § 3.2 (1995), reprinted in 34 I.L.M. 1080, 1102 (1995) (“In enforc­ing the antitrust laws, the Agencies consider international comity.”); see also The Paquete Habana, 175 U.S. 677, 693–94 (1900) (characterizing Executive’s decision not to seize coastal fish­ing vessels as prizes of war, prior to its evolution into rule of customary international law, as exercise of comity); United States v. Rauscher, 119 U.S. 407, 411–12 (1886) (noting de­cision to deliver fugitive to foreign government in absence of extradition treaty was act of comity). ... Close

Beyond offering a definition of international comity, this Article cat­alogues and categorizes the uses of international comity in American law along two dimensions. Along one axis, it distinguishes the uses of inter­national comity based on the foreign government actor to whom defer­ence is given. Deference to foreign lawmakers constitutes “prescriptive comity,” 41 41 See infra section II.A (describing prescriptive comity). ... Close deference to foreign tribunals is termed “adjudicative com­ity,” 42 42 See infra section II.B (describing adjudicative comity). ... Close and deference to foreign governments as litigants is “sovereign par­ty comity.” 43 43 See infra section II.C (describing sovereign parity comity). ... Close Along the second axis, the Article distinguishes between the operation of comity as a “principle of recognition”—that is, as a means of recognizing foreign law, foreign judgments, and foreign sovereigns as litigants—and the operation of comity as a “principle of restraint”—that is, as a means of restraining the reach of American law, the jurisdiction of American courts, and, more specifically, the jurisdiction of American courts over foreign sovereign defendants. Each of the international comity doc­trines may be placed in one of the resulting boxes.

 

Table 1

Some of the doctrines included in the matrix above may not be rec­ognized immediately as manifestations of international comity. But each fits this Article’s definition‌—deference to foreign government actors that is not required by international law but is incorporated in domestic law—and Part II defends the inclusion of each. It is also important to note that some of the international comity doctrines rest partly on comity and partly on other bases. The modern presumption against extraterritoriality, for example, has two rationales: (1) “[i]t serves to protect against unintend­ed clashes between our laws and those of other nations which could re­sult in international discord;” 44 44 EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20–22 (1963)). ... Close and (2) it reflects the assumption that Congress is “‘primarily concerned with domestic conditions.’” 45 45 Id. (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). ... Close Only the first of these justifications reflects international comity. The discussion below will note when a doctrine rests on more than one rationale.

Finally, this categorization does not include the Charming Betsy canon of avoiding violations of international law, 46 46 See Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . . .”); Restatement (Third) of the Foreign Relations Law of the United States § 114 (Am. Law Inst. 1987) (“Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an interna­tional agreement of the United States.”). This Article also omits enforcement of arbitra­tion clauses, which Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. said rested in part on “concerns of international comity.” 473 U.S. 614, 629 (1985). Because enforcement of arbitration clauses does not involve deference to foreign government actors, it is not a doc­trine of international comity but rather reflects deference to private autonomy. ... Close which others have classified among the comity doctrines. 47 47 See Posner & Sunstein, supra note 33, at 1179 (listing Charming Betsy canon as comity doctrine). ... Close As Part III explains, international comity is not just distinct from international law—it is deference to foreign govern­ment actors that is not required by international law. When a court con­strues a federal statute to avoid conflict with international law under the Charming Betsy canon, it does not defer to a foreign government actor but rather to another body of law with a complex relationship to U.S. domes­tic law. 48 48 The Charming Betsy canon is more akin to the constitutional avoidance canon, with which it is sometimes linked, than to doctrines of international comity. See DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (stating consti­tutional avoidance canon “has its roots in Chief Justice Marshall’s opinion for the Court in Murray v. The Charming Betsy”); NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 500 (1979) (misciting The Charming Betsy for proposition “that an Act of Congress ought not be con­strued to violate the Constitution if any other possible construction remains available”). ... Close

Categorizing the international comity doctrines in this way reveals how each of them fits into a larger picture. For example, many of the doc­trines of adjudicative comity address the same basic question: When should a U.S. court defer to a foreign court’s resolution of a legal dispute? What changes is the time at which that question is asked—before a suit is filed in foreign court, while it is pending, or after the foreign court has ren­dered judgment. Categorizing the doctrines also facilitates comparisons within and across categories and raises new questions. Why, for example, has reciprocity been urged as a requirement for some of the comity doc­trines but not for others? 49 49 Hilton imposed a reciprocity requirement for the enforcement of foreign judg­ments under general common law. See Hilton v. Guyot, 159 U.S. 113, 228 (1895) (holding foreign judgment, “for want of reciprocity, not to be conclusive evidence of the merits of the claim”). Today, recognition of foreign judgments in the United States is governed by state law, and most states do not impose a reciprocity requirement. See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction § 404 reporters’ note 11 (Am. Law Inst., Tentative Draft No. 1, 2014) (noting no Uniform Act requires reci­procity for recognition of foreign judgment, although six states have added reciprocity as condi­tion for recognition). The American Law Institute’s proposed federal judgments statute, on the other hand, would require reciprocity. See Am. Law Inst., Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute § 7(a) (2006) (“A foreign judgment shall not be recognized or enforced in a court in the United States if the court finds that comparable judgments of the courts in the United States would not be recog­nized or enforced in the courts of the state of origin.”); see also John F. Coyle, Rethinking Judgments Reciprocity, 92 N.C. L. Rev. 1109, 1169 (2014) (“If a policy of judgments reciprocity is un­likely to persuade the nations that currently refuse to enforce U.S. judgments to change their practice—as seems to be the case—then the answer to the question of whether to adopt such a policy is easy.”). Other doctrines of international comity expressly reject a reciprocity requirement. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 411–12 (1964) (rejecting reciprocity requirement for foreign government’s privilege of bringing suit in U.S. courts); Restatement (Second) of Conflicts of Laws § 6 cmt. k (Am. Law Inst. 1971) (rejecting reciprocity requirement for conflict of laws). ... Close Why are some comity doctrines state law, 50 50 The conflict of laws and the enforcement of foreign judgments are governed by state law in the United States. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (holding conflict of law rules applied by federal court must conform to conflict of law rules in state where federal court is located); Somportex Ltd. v. Phila. Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971) (applying state law to enforcement of foreign judgment). ... Close others both state and nonpreemptive federal law, 51 51 Doctrines of adjudicative comity as principles of restraint are generally governed by federal law in federal court and state law in state court. See, e.g., Am. Dredging Co. v. Miller, 510 U.S. 443, 457 (1994) (holding federal law of forum non conveniens does not preempt state law). Doctrines of prescriptive comity that federal courts use as principles of restraint apply only to federal statutes. See, e.g., Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (applying presumption against extraterritoriality to “legislation of Congress”). By contrast, the geographic scope of state statutes (subject to any constitutional or international law limits) is a question of state law. See Skiriotes v. Florida, 313 U.S. 69, 79 (1941) (deferring to state interpretation of geographic scope of state statute despite statu­tory language apparently inconsistent with that interpretation). ... Close and still others pre­emptive federal law? 52 52 Only a few international comity doctrines clearly constitute federal law binding on state courts, including foreign sovereign immunity, due process limitations on personal jurisdiction, and the act of state doctrine. See 28 U.S.C. § 1604 (2012) (stating “foreign state shall be immune from the jurisdiction of the courts of the United States and of the States” subject to exceptions); Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (discuss­ing due process limits on personal jurisdiction); Sabbatino, 376 U.S. at 427 (holding scope of act of state doctrine “must be determined according to federal law”). ... Close

This Article uses its categorization of international comity doctrines to challenge two enduring myths about comity: (1) that comity must be governed by standards rather than rules; and (2) that comity determina­tions are best left to the executive branch. 53 53 So much has been written about international comity that it would be impossible to respond to every argument in a single article. See, e.g., supra note 37 (surveying inter­national comity scholarship). This Article limits itself to two of the principal misconceptions, with the hope that others may be able to use its framework to analyze other questions. ... Close The first myth goes back at least to the early nineteenth century. In his 1834 treatise on conflicts, Justice Joseph Story endorsed the view that “comity is, and ever must be uncertain” and “must necessarily depend on a variety of circumstances, which cannot be reduced to [sic] any certain rule.” 54 54 Joseph Story, Commentaries on the Conflict of Laws § 28, at 34 (2d ed. 1841) (1834) (quoting Saul v. His Creditors, 5 Mart. (n.s.) 665, 678 (La. 1827) (Porter, J.)) (misquotation). ... Close This discretionary aspect of international comity has been responsible for much of the criti­cism that the doctrine has attracted over the years. 55 55 See infra notes 316–321 and accompanying text (discussing criticism of comity as discretionary). ... Close But examining the full range of comity doctrines reveals that international comity can be—and often is—expressed in the form of rules rather than standards. 56 56 To be clear, this distinction relates to the range of facts a court may consider in applying a doctrine and to the corresponding degree of discretion the court enjoys. See infra notes 322–323 and accompanying text (explaining difference between rules and standards). Whether a doctrine takes the form of a rule or a standard is a separate ques­tion from whether that doctrine binds the court as a rule of law. The doctrine of forum non conveniens, for example, takes the form of a standard rather than a rule, but it is also binding on district courts. ... Close In the area of sovereign party comity, the Supreme Court has adopted a rule that any government recognized by the United States, and not at war with it, may bring suit in U.S. courts, 57 57 Sabbatino, 376 U.S. at 409 (“[T]he privilege of suit has been denied only to gov­ernments at war with the United States or to those not recognized by this country.” (cita­tions omitted)). ... Close while the Foreign Sovereign Immunities Act (FSIA) sets forth rules to determine when foreign states may be sued in federal and state courts. 58 58 See 28 U.S.C. §§ 1604–1607 (2012) (providing foreign state immunity from suit subject to specific exceptions). ... Close In the areas of prescriptive and adjudicative comity, one finds a mix of rules and standards. The act of state doctrine operates as a rule rather than a standard, 59 59 See W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 409 (1990) (“The act of state doctrine does not establish an exception for cases and controver­sies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.”); infra note 338 and accompanying text (discussing act of state doctrine). ... Close and the Supreme Court has rejected a case-by-case approach for restraining the extraterritorial reach of federal statutes. 60 60 See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 168 (2004) (re­jecting case-by-case approach to prescriptive comity as “too complex to prove workable”). ... Close The Restatement (Second) of Conflict of Laws adopts a “most significant relationship” standard, 61 61 See, e.g., Restatement (Second) of Conflict of Laws § 188(1) (Am. Law Inst. 1971) (noting contract issues “are determined by the local law of the state which, with re­spect to that issue, has the most significant relationship to the transaction and the parties”). ... Close subject to a number of pre­sumptive rules for recognizing foreign law. 62 62 See, e.g., id. § 188(3) (“If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied . . . .”). ... Close Adjudicative comity as a prin­ciple of recognition operates largely through nondiscretionary rules gov­erning the enforcement of foreign judgments, 63 63 See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction § 404 cmt. b (Am. Law Inst., Tentative Draft No. 1, 2014) (noting even “dis­cretionary” grounds for nonrecognition of foreign judgments are mostly mandatory in practice). ... Close as well as a discretionary statute authorizing judicial assistance to foreign tribunals. 64 64 See 28 U.S.C. § 1782(a) (2012) (providing district court “may” order a person to pro­vide evidence to foreign or international tribunals). ... Close It is only when adjudicative comity operates as a princi­ple of restraint through doctrines like forum non conveniens that international comity operates predomi­nantly through standards rather than rules. 65 65 See infra notes 352–353 and accompanying text (discussing doctrines of adju­dicative comity that operate as principles of restraint). Even in this area, one encounters the occasional rule, such as the presumptive limitation of general jurisdiction over corpo­rations to “the place of incorporation and principal place of business.” Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014). ... Close

The second myth challenged here is that the executive branch has great­er institutional competence to apply the comity doctrines. Eric Posner and Cass Sunstein have argued that courts should defer to the Executive in applying international comity doctrines because “the executive branch is in a better position to understand the benefits of foreign reciprocation or the likelihood and costs of retaliation than the judiciary.” 66 66 Posner & Sunstein, supra note 33, at 1205. For another excellent discussion of deference to the Executive in foreign affairs, see Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 Va. L. Rev. 649, 679–725 (2000) (discussing range of foreign affairs doctrines). ... Close Posner and Sunstein consider only a limited number of comity doctrines. 67 67 See Posner & Sunstein, supra note 33, at 1179–80 (considering only presumption against extraterritoriality, act of state doctrine, foreign sovereign immunity, and (mistak­enly) Charming Betsy canon); supra notes 46–48 and accompanying text (explaining why Charming Betsy is not truly an international comity doctrine). ... Close When one considers the full range, one sees a number of doctrines under which def­erence to the Executive would seem utterly inappropriate: the conflict of laws, the enforcement of foreign judgments, forum non conveniens, anti­suit injunctions, and questions of foreign discovery, to name a few. 68 68 Courts have declined to defer to the Executive even with respect to doctrines like forum non conveniens that expressly incorporate “public interest” factors. See, e.g., Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 950–53 (1st Cir. 1991) (Breyer, C.J.) (rejecting Securities and Exchange Commission’s (SEC) argument that district court misapplied doctrine). ... Close To be sure, the executive branch has authority to determine certain facts on which some of the comity doctrines turn. The President has unreviewable authority to recognize foreign governments, and recognition in turn en­titles foreign governments to bring suit in U.S. courts. 69 69 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 409 (1964) (noting rec­ognized foreign governments not at war with United States may bring suit in U.S. courts). Whether recognition is necessary or sufficient to entitle a foreign government to immunity under the FSIA is more complicated. See infra notes 372–374 and accompanying text (dis­cussing executive recognition and immunity under FSIA). ... Close Executive branch agencies may also have authority to determine the geographic scope of statutes they administer. 70 70 See Bradley, supra note 66, at 691–94 (arguing for deference to extraterritorial interpretations by executive branch); Posner & Sunstein, supra note 33, at 1204 (“[I]n cases in which the executive has adopted an interpretation via rulemaking or adjudication, or is otherwise entitled to deference under standard principles of administrative law, the executive’s interpretations should prevail over the comity doctrines.”). ... Close But as a general matter, the President does not have—and should not be given—authority to dispose of particular cases on foreign relations grounds. Such authority not only compromises judi­cial independence but also harms U.S. foreign relations by putting the Executive in the uncomfortable position of having to make decisions that may displease foreign governments.

This Article proceeds in four parts. Part I begins with a brief history of international comity, from its origins in the Netherlands, through its adoption by English common law, to its transmission to the United States. It also shows how the rationale for comity shifted from private interests in convenience to public interests in respecting the sovereignty of other na­tions, a shift that has obscured the comity basis of some doctrines. Part II discusses and categorizes the manifestations of international comity in American law, defending the inclusion of each doctrine and explaining why each of the categories represents a coherent group. Part III consid­ers the relationship between international comity and international law. The border between the two has shifted over time. Changes in interna­tional law have sometimes created new roles for international comity, and rules of international comity have sometimes evolved into rules of inter­national law. In some areas of foreign relations law today—like foreign sovereign immunity and prescriptive jurisdiction—one may think of an international law “core” and a comity “penumbra,” while in other areas all of the rules are rules of comity alone. Finally, Part IV challenges two of the leading comity myths: (1) that comity must be governed by standards rather than rules; and (2) that comity determinations are best left to the executive branch. Part IV shows that international comity doctrines are frequently expressed as rules rather than standards, and that allowing courts to apply these doctrines without inference by the executive branch promotes not just the rule of law but also U.S. foreign relations.

I. A Brief History of International Comity

To understand the role of international comity in American law to­day, one must have some idea of where it came from and how it devel­oped. American notions of comity find their origin in the writings of the seventeenth-century Dutch jurist Ulrich Huber, whose approach was adopt­ed in turn by the influential English judge Lord Mansfield. In the United States, Joseph Story’s treatise on the conflict of laws made comity the foun­dation for recognizing foreign laws and judgments, but U.S. courts also looked to international comity as the basis for foreign sovereign immun­ity, the act of state doctrine, and the privilege of foreign governments to bring suit in the United States. During the first half of the twentieth cen­tury, as international law moved away from a strictly territorial view of jurisdiction, comity began to play new roles, restraining the reach of U.S. laws and the jurisdiction of U.S. courts. With these new roles came new justifications for comity, specifically public interests in sovereignty and fostering friendly relations with other nations, which ultimately eclipsed comity’s original rationale of commercial convenience serving private interests.

A. From Huber to Mansfield

The history of international comity begins with the seventeenth-century Dutch jurist Ulrich Huber. 71 71 For more on Huber, see Ernest G. Lorenzen, Huber’s De Conflictu Legum, 13 Ill. L. Rev. 375 (1919), reprinted in Ernest G. Lorenzen, Selected Articles on the Conflict of Laws 136–62 (1947) (discussing Huber’s views on the conflict of laws and their influence); Hessel E. Yntema, The Comity Doctrine, 65 Mich. L. Rev. 9, 24–32 (1966) (discussing Huber’s conception of comity and comparing it to others’). ... Close After the Peace of Westphalia in 1648, the world was understood to be divided into separate and independ­ent states whose territorial sovereignty was deemed to be exclusive and ab­solute. 72 72 See Leo Gross, The Peace of Westphalia, 1648–1948, 42 Am. J. Int’l L. 20, 28–29 (1948) (noting Peace of Westphalia established “new system characterized by the coexistence of a multiplicity of states, each sovereign within its territory, equal to one another, and free from any external earthly authority”). ... Close In this era of territorial states, comity was a way to explain how rights acquired under the laws of one nation could have effect within the territory of another. Both territorial sovereignty and respect for foreign rights were of particular concern in the Netherlands, which had recently won independence from Spain but whose status as a trading nation cre­ated a pressing need to treat foreigners fairly. 73 73 See Yntema, supra note 71, at 16–19 (discussing historical concerns of Netherlands following independence). ... Close Huber’s De Conflictu Legum set forth three maxims to address the problem of foreign rights in a world of exclusive territorial sovereignty:

(1) The laws of each state have force within the limits of that government and bind all subject to it, but not beyond.

(2) All persons within the limits of a government, whether they live there permanently or temporarily, are deemed to be subjects thereof.

(3) Sovereigns will so act by way of comity that rights ac­quired within the limits of a government retain their force eve­rywhere so far as they do not cause prejudice to the power or rights of such government or of its subjects. 74 74 Ulrich Huber, De Conflictu Legum Diversarum in Diversis Imperiis (Ernest G. Lorenzen trans. 1919) (1689), reprinted in Lorenzen, supra note 71, at 164 (citations omitted). ... Close

Huber saw these maxims as part of the law of nations, 75 75 Id. (“[I]t is manifest that what the different nations observe among themselves be­longs to the law of nations.”). ... Close but there were important differences between Huber’s first two maxims and his third. The first two stated the territorial view of sovereignty in the strong­est terms and permitted no discretion on the part of the sovereign, which could not regulate extraterritorially even to promote its most compelling interests. Huber’s third maxim was different in two ways. First, it did not state the strictly territorial view of sovereignty but rather tried to solve a prob­lem that territoriality created. Huber wrote that “nothing could be more inconvenient to commerce and to international usage than that transac­tions valid by the law of one place should be rendered of no effect else­where on account of a difference in the law.” 76 76 Id. at 165. ... Close Comity avoided that in­convenience. Second, Huber’s final maxim expressly permitted discre­tion by the sovereign, which could deny the effect of foreign law to the extent necessary to protect itself and its subjects. The discretion not to recognize foreign rights was captured in the word “comity.” 77 77 Posner and Sunstein characterize the public policy exception to the recognition of foreign laws and judgments as an “anti-comity” doctrine because it “assert[s] American interests . . . at the expense of the interests of other countries.” Posner & Sunstein, supra note 33, at 1182. In fact, the discretion not to defer to foreign government actors has been an inherent part of comity itself since the very beginning. See Huber, supra note 74, at 164 (“Sovereigns will so act by way of comity that rights acquired within the limits of a govern­ment retain their force everywhere so far as they do not cause prejudice to the power or rights of such government or of its subjects.” (emphasis added)). ... Close

Scottish lawyers brought Huber’s ideas to Britain, where Lord Mansfield adopted them in his conflicts decisions. 78 78 See D.J. Llewelyn Davies, The Influence of Huber’s De Conflictu Legum on English Private International Law, 18 Brit. Y.B. Int’l L. 49, 52–55 (1937) (discussing reception of Huber’s ideas in English law). ... Close In Robinson v. Bland, Mansfield wrote that “the general rule established ex comitate et jure gentium is, that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract.” 79 79 Robinson v. Bland (1760) 96 Eng. Rep. 141, 141; 1 Black W. 257, 258 (K.B.) (citing Huber). ... Close In Holman v. Johnson, he added: “The doctrine Huberus lays down, is founded in good sense, and upon general principles of justice. I entirely agree with him.” 80 80 Holman v. Johnson (1775) 98 Eng. Rep. 1120, 1121; 1 Cowp. 342, 344 (K.B.). Today, comity appears to play a smaller role in England than in America. As a leading English writer explained, “Dicey . . . was scornful of comity being used as a basis for taking decisions, and English private international law has never really gotten over it.” Briggs, supra note 37, at 149; see also Collins, supra note 20, at 91–94 (recounting criticism of comity in England). ... Close

B. American Beginnings

Comity came to America with the rest of English common law. Coun­sel cited Huber and courts relied on him. In 1797, Alexander Dallas even published a translation of Huber in the U.S. Reports. 81 81 See Emory v. Grenough, 3 U.S. (3 Dall.) 369, 370 n.* (1797) (providing transla­tion of Huber). The case, in which Dallas served as counsel, was dismissed on jurisdic­tional grounds, but Dallas apparently felt that his translation should not go to waste. Id. ... Close Riding circuit two years later, Justice Washington invoked Huber for the proposition that “by the courtesy of nations, to be inferred from their tacit consent, the laws which are executed within the limits of any government are per­mitted to operate everywhere, provided they do not produce injury to the rights of such other government or its citizens.” 82 82 Banks v. Greenleaf, 2 F. Cas. 756, 757 (C.C.D. Va. 1799) (No. 959) (Washington, J.). ... Close Justice Story, also on circuit, wrote that Huber’s doctrine “has become incorporated into the code of national law in all civilized countries.” 83 83 Van Reimsdyk v. Kane, 28 F. Cas. 1062, 1063 (C.C.D.R.I. 1812) (No. 16,871) (Story, J.). ... Close

Story’s 1834 treatise Commentaries on the Conflict of Laws cemented com­ity into the foundations of American conflicts law. Echoing Huber, Story began with three maxims: (1) “that every nation possesses an exclusive sovereignty and jurisdiction within its own territory;” 84 84 Story, supra note 54, § 18, at 25. ... Close (2) “that no state or nation can, by its laws, directly affect or bind property out of its own territory, or bind persons not resident therein;” 85 85 Id. § 20, at 26. ... Close and (3) “that whatever force and obligation the laws of one country have in another, depend sole­ly upon the laws and municipal regulations of the latter; that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent.” 86 86 Id. § 23, at 30. Story’s first maxim combines Huber’s first two, Story’s second maxim restates a part of Huber’s first, and Story’s third maxim tracks Huber’s third. See supra note 74 and accompanying text (quoting Huber’s maxims). ... Close After paraphrasing and defending Huber, Story en­dor­sed comity as the basis for enforcing foreign law. The “‘comity of na­tions,’” he wrote, “is the most appropriate phrase to express the true founda­tion and extent of the obligation of the laws of one nation within the ter­ritories of another.” 87 87 Story, supra note 54, § 38, at 41. ... Close Like Huber, Story justified comity on the basis of “mutual convenience and utility.” 88 88 Id. § 30, at 36. ... Close Yet Story also thought that the terri­torial sovereign could trump other considerations and refuse to enforce foreign law: “No nation can . . . be required to sacrifice its own interests in favour of another; or to enforce doctrines which, in a moral or politi­cal view, are incompatible with its own safety or happiness, or conscien­tious regard to justice and duty.” 89 89 Id. § 25, at 31. In a provocative book, Alan Watson argues that Story (and James Kent for that matter) misread Huber, who did not in fact intend to allow sovereigns unfet­tered discretion not to enforce foreign law. See Alan Watson, Joseph Story and the Comity of Errors 18–44 (1992). Watson goes on to argue that Huber’s view would have required a different outcome in Somerset v. Stewart (1772) 98 Eng. Rep. 499; Lofft. 1 (K.B.), a famous decision in which Lord Mansfield refused to recognize foreign laws making some­one a slave. Watson speculates that Mansfield “was deliberately ignoring Huber in order to reach his decision,” Watson, supra, at 68, and that the attorneys for Somerset’s owners must not have raised Huber since that would have forced Mansfield’s hand, id. at 70. It seems more likely that Mansfield, Kent, and Story correctly read Huber to allow discretion not to enforce foreign law. In any event, that is certainly how the doctrine of comity devel­oped in England and the United States. ... Close In England and America, this discre­tion was exercised in the first instance by courts but subject always to leg­islative control. 90 90 See Story, supra note 54, § 23, at 30 (“When its own code speaks positively on the subject, it must be obeyed . . . .”). ... Close This comity, Story emphasized, was “not the comity of the courts, but the comity of the nation.” 91 91 Id. § 38, at 42. For discussion of what Story meant by this distinction, see infra notes 213–214 and accompanying text. ... Close

During the nineteenth century, American courts invoked comity re­peatedly as the basis for enforcing foreign laws—from those governing contracts, 92 92 See, e.g., Van Reimsdyk v. Kane, 28 F. Cas. 1062, 1064 (C.C.D.R.I. 1812) (No. 16,871) (Story, J.) (“The general rule is, that a discharge of a contract according to the lex loci contractus is good every where. The rule is founded upon public convenience, and the comity of nations.”). ... Close to those respecting the ownership of personal property, 93 93 See, e.g., Holmes v. Remsen, 4 Johns. Ch. 460, 487 (N.Y. 1820) (Kent, J.) (“We are bound to give effect to the assignment [of personal property] . . . by the comity of nations.”). ... Close to those organizing corporations. 94 94 See, e.g., Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 590 (1839) (recognizing foreign corporation “is but the usual comity of recognising the law of another state”). ... Close “It is needless to enumerate here,” Chief Justice Taney wrote in Bank of Augusta v. Earle, “the instances in which, by the general practice of civilized countries, the laws of the one, will, by the comity of nations, be recognised and executed in another, where the right of individuals are concerned.” 95 95 Id. at 589. ... Close Comity also gave the states of the Union some room—though in the end not enough—to manage the issue of slav­ery. 96 96 For an excellent discussion of comity and slavery, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity 4 (1981) (“Such comity . . . was indispensable in a union of states, for if states refused to recognize and enforce each other’s laws, interstate relations would collapse and the Union would founder.”). ... Close “By the general law of nations, no nation is bound to recognise the state of slavery, as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions,” Justice Story wrote in Prigg v. Pennsylvania. 97 97 41 U.S. (16 Pet.) 539, 611 (1842). ... Close “If it does it, it is as a matter of comity, and not as a matter of international right.” 98 98 Id. Scholars have differed over the importance of slavery in shaping Story’s views of comity. Compare Paul, Comity in International Law, supra note 17, at 20 (“Story’s in­tention in formalizing the doctrine was to enshrine comity as a mediating principle be­tween free and slave states and thereby save the republic.”), with Watson, supra note 89, at 40 (finding no evidence “slavery was in the forefront of Story’s mind on this matter”). ... Close

Comity served not just as the basis for enforcing foreign laws in American courts, but also as the basis for recognizing foreign judg­ments, 99 99 See Huber, supra note 74, at 168 (stating comity “applies equally to the subject of res judicata”); see also id. at 165 (“[A]ll transactions and acts, in court as well as out, . . . rightly done according to the law of any particular place, are valid even where a different law prevails.”). While Story found “much diversity of practice as well as of opinion among jurists and nations,” Story, supra note 54, § 584, at 847, he also cited comity as the basis for enforcing foreign judgments. See id. § 598, at 857 (“[A sovereign] acts in executing [a for­eign judgment] upon the principles of comity.”). ... Close most famously in Hilton v. Guyot. 100 100 See 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’”); see also Croudson v. Leonard, 8 U.S. (4 Cranch) 434, 437 (1808) (noting “spirit of comity” lies be­hind enforcement of foreign judgments). ... Close Justice Gray began by restat­ing the traditional rule of strictly territorial sovereignty: “No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived.” 101 101 Hilton, 159 U.S. at 163. ... Close Thus, the effect not just of an executive order or legislative act but also of a judicial decree “depends upon what our greatest jurists have been content to call ‘the comity of nations.’” 102 102 Id. ... Close Like Huber and Story, Gray noted the territorial sovereign’s discretion not to enforce foreign law against its own interests. Comity was “neither a mat­ter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.” 103 103 Id. at 163–64. ... Close Despite its slippery definition of comity, 104 104 See supra notes 26–31 and accompanying text (discussing Hilton’s definition of comity). ... Close Hilton articulated clear rules for the enforcement of foreign judgments in the United States:

[W]here there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurispru­dence likely to secure an impartial administration of justice be­tween the citizens of its own country and those of other coun­tries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in pro­curing the judgment, or any other special reason why the com­ity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judg­ment, be tried afresh . . . . 105 105 Hilton, 159 U.S. at 202–03. The Court refused to enforce the judgment in Hilton on reciprocity grounds, because France would not enforce U.S. judgments. Id. at 227 (“[J]udgments rendered in France, or in any other foreign country, by the laws of which our own judgments are reviewable upon the merits, are not entitled to full credit and con­clusive effect when sued upon in this country . . . .”). On the same day, the Court held that a Canadian judgment was entitled to enforcement because Canada gave full effect to U.S. judgments. See Ritchie v. McMullen, 159 U.S. 235, 242 (1895) (“By the law of England, prevailing in Canada, a judgment rendered by an American court under like circum­stances would be allowed full and conclusive effect.”). ... Close

These rules were generally followed by state courts, and have been codified in two uniform state acts that govern the enforcement of most foreign judg­ments in the United States today. 106 106 Unif. Foreign-Country Money Judgments Recognition Act (Nat’l Conference of Comm’rs on Unif. State Laws 2005) [hereinafter 2005 Uniform Act]; Unif. Foreign Money-Judgments Recognition Act (Nat’l Conference of Comm’rs on Unif. State Laws 1962) [hereinafter 1962 Uniform Act]. ... Close

While comity was the basis for enforcing foreign laws and judgments in American courts during the nineteenth century, it also served to re­strain the exercise of jurisdiction over foreign sovereigns. In The Schooner Exchange v. McFaddon, Chief Justice Marshall held that a French warship was immune from suit by its former owners to recover it. 107 107 See 11 U.S. (7 Cranch) 116, 147 (1812) (Marshall, C.J.) (“[T]he Exchange, being a public armed ship, in the service of a foreign sovereign, . . . should be exempt from the jurisdiction of the country.”). ... Close The Schooner Exchange is sometimes read as applying international law, but Marshall treated the international rules governing immunity as defeasible by the United States. 108 108 The law of nations at the time was said to consist of four categories: (1) the nec­essary; (2) the voluntary; (3) the customary; and (4) the conventional. See Sarah H. Cleveland & William S. Dodge, Defining and Punishing Offenses Under Treaties, 124 Yale L.J. 2202, 2212 (2015) (discussing early American understanding of law of nations). Nations were bound by the voluntary law of nations but were free to withdraw from the customary law of nations by giving proper notice. See Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 Yale L.J. 202, 215–23 (2010) (discussing distinction between voluntary and customary law of nations). Whether or not rules of foreign sovereign im­munity properly fell into the defeasible category, Marshall’s opinion in The Schooner Exchange certainly treated them that way. See William S. Dodge, Withdrawing from Customary International Law: Some Lessons from History, 120 Yale L.J. Online 169, 188 (2010), http://www.yalelaw
journal.org/forum/withdrawing-from-customary-international-law-some-lessons-from-history (on file with the Columbia Law Review) (“The Schooner Exchange v. McFaddon treated for­eign sov­ereign immunity as part of the customary law.”). ... Close “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute,” Marshall wrote. 109 109 The Schooner Exchange, 11 U.S. (7 Cranch) at 136. ... Close Thus, any immunity of a foreign sovereign in the courts of the United States “must be traced up to the consent of the nation itself.” 110 110 Id. ... Close For “mutual benefit,” 111 111 Id. ... Close all na­tions had consented to treat the foreign sovereign himself, his foreign min­ister, and his military forces as immune from arrest or detention within their territories. 112 112 See id. at 137–46 (discussing immunity of the sovereign, foreign ministers, and foreign troops). ... Close But Marshall emphasized that the territorial sovereign was “capable of destroying this implication” and of “subjecting such ves­sels to the ordinary tribunals.” 113 113 Id. at 146. ... Close

Marshall’s treatment of foreign sovereign immunity bears a striking resemblance to Huber and Story’s descriptions of comity. Each began with the assumption that sovereignty was strictly territorial, each made excep­tions based on “mutual benefit,” and each maintained the discre­tion of the territorial sovereign to deny such exceptions if it so chose. Although Chief Justice Marshall did not use the word “comity,” Justice Story, who joined the opinion in The Schooner Exchange, would write just a decade lat­er that the doctrine expounded in that case “stands upon principles of public comity and convenience.” 114 114 The Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 353 (1822). ... Close In more recent times, the Supreme Court has consistently characterized foreign sovereign immunity as “a matter of grace and comity on the part of the United States.” 115 115 Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983); see also infra note 275 (collecting cases treating sovereign immunity as comity). Modern customary in­ternational law requires sovereign immunity in some cases, although the exact contours of the customary international law rules are uncertain. See Jurisdictional Immunities of the State (Ger. v. It.), Judgment, 2012 I.C.J. Rep. 99, ¶ 77 (Feb. 3) (finding international law required immunity for acta jure imperii committed by armed forces during armed conflict). For a discussion of the relationship between customary international law and comity with respect to immunity today, see infra notes 300–301 and accompanying text. ... Close

Beginning in the nineteenth century, comity was also invoked to al­low a foreign sovereign to bring suit in U.S. courts. “To deny him this privilege,” the Supreme Court said in The Sapphire, “would manifest a want of comity and friendly feeling.” 116 116 78 U.S. (11 Wall.) 164, 167 (1870). ... Close An earlier case allowing the Spanish King to bring suit had rested not on comity but on the reference in Article III of the Constitution to controversies involving foreign states. 117 117 See King of Spain v. Oliver, 14 F. Cas. 577, 579 (C.C.D. Pa. 1810) (No. 7814) (Washington, J.) (“[I]t is sufficient to observe, that the constitution of the United States gives jurisdiction to the courts of the United States, in cases where foreign states are parties . . . .”). ... Close But by grounding the privilege in comity, the Court preserved the discretion of the United States to deny it, at least to foreign states that are at war with the United States or not recognized by it. 118 118 See Pfizer, Inc. v. Gov’t of India, 434 U.S. 308, 319–20 (1978) (“It has long been established that only governments recognized by the United States and at peace with us are entitled to access to our courts, and that it is within the exclusive power of the Executive Branch to determine which nations are entitled to sue.”); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 409 (1964) (noting privilege of bringing suit had been denied “only to gov­ernments at war with the United States . . . or to those not recognized by this country”). ... Close

The act of state doctrine is another manifestation of international comity in American law. 119 119 The doctrine provides that American courts will not question the validity of a foreign act of state fully performed within the state’s own territory. See W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 405 (1990) (noting act of state doctrine bars U.S. courts from “declar[ing] invalid the official act of a foreign sovereign performed within its own territory”). ... Close In Oetjen v. Central Leather Co., the Supreme Court said that the doctrine “rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign State to be reexamined and perhaps condemned by the courts of another would very certainly ‘imperil the amicable relations between governments and vex the peace of nations.’” 120 120 246 U.S. 297, 303–04 (1918). ... Close Later cases have emphasized separation of powers as the basis for the act of state doc­trine. 121 121 See Sabbatino, 376 U.S. at 423 (“The act of state doctrine . . . arises out of the basic relationships between branches of government in a system of separation of pow­ers.”); see also Kirkpatrick, 493 U.S. at 404 (noting evolution in “jurisprudential foundation for the act of state doctrine” from comity to separation of powers). But see First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765 (1972) (plurality opinion) (Rehnquist, J.) (“The act of state doctrine, like the doctrine of immunity for foreign sovereigns, has its roots, not in the Constitution, but in the notion of comity between independent sovereigns.”). ... Close But this separation of powers rationale ultimately rests on comity, for it reflects “the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country’s pursuit of goals both for itself and for the community of nations as a whole in the international sphere.” 122 122 Sabbatino, 376 U.S. at 423. Lower courts have continued to rely on comity to en­force foreign acts of state not covered by the doctrine because they were not fully per­formed within the foreign state’s own territory. See, e.g., Allied Bank Int’l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 519 (2d Cir. 1985) (noting “principles of comity” would require recognition of extraterritorial acts of state if consistent with U.S. policy). ... Close

C. New Roles

In most of the preceding examples, American courts used comity to address problems created by a strictly territorial view of sovereignty—how to explain the enforcement of a foreign law or judgment outside the for­eign state’s territory, or the decision not to exercise jurisdiction over a foreign sovereign inside the United States’ territory. As this territorial view of sovereignty weakened, however, comity came to play new roles in American law. In American Banana Co. v. United Fruit Co., the Supreme Court had to decide whether the Sherman Act reached anticompetitive conduct in another country. 123 123 213 U.S. 347, 355–58 (1909). ... Close In the past, it would have answered that question by relying on rules of international law. 124 124 See, e.g., The Apollon, 22 U.S. (9 Wheat.) 362, 370 (1824) (“The laws of no nation can justly extend beyond its own territories, except so far as regards its own citi­zens.”); see also John H. Knox, A Presumption Against Extrajurisdictionality, 104 Am. J. Int’l L. 351, 352 (2010) (“For most of U.S. history, the Supreme Court determined the reach of federal statutes in the light of international law—specifically, the international law of legislative jurisdiction.”). ... Close But international law’s strictly territorial view of jurisdiction had faded by 1909, 125 125 See 1 L. Oppenheim, International Law: A Treatise § 147, at 196 (1905) (“Many States claim jurisdiction and threaten punishments for certain acts committed by a for­eigner in foreign countries.”); John B. Moore, Report on Extraterritorial Crime (1887), reprinted in 2 John Bassett Moore, A Digest of International Law § 202, at 244 (1906) (“The principle that a man who outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is done, is recognized in the crim­inal jurisprudence of all countries.”). ... Close and so Justice Holmes adopted a territorial approach using comity instead:

For another jurisdiction, if it should happen to lay hold of the actor, to treat him according to its own notions rather than those of the place where he did the acts, not only would be unjust, but would be an interference with the authority of another sover­eign, contrary to the comity of nations, which the other state con­cerned justly might resent. 126 126 American Banana, 213 U.S. at 356. The Supreme Court expressly invoked comity in later cases to limit the geographic scope of the Federal Employers’ Liability Act and the Jones Act. See Lauritzen v. Larsen, 345 U.S. 571, 582 (1953) (citing “considerations of comity” in construing Jones Act); N.Y. Cent. R.R. v. Chisholm, 268 U.S. 29, 32 (1925) (re­ferring to “‘comity of nations’” while interpreting Federal Employers’ Liability Act (quot­ing American Banana, 213 U.S. at 356)). ... Close

Despite American Banana, U.S. courts soon began to apply U.S. anti­trust law extraterritorially on the basis of effects. 127 127 See, e.g., United States v. Sisal Sales Corp., 274 U.S. 268, 276 (1927) (applying U.S. antitrust law to “contract, combination and conspiracy intended to restrain trade in those articles and to increase the market price within the United States”); United States v. Aluminum Co. of Am., 148 F.2d 416, 444 (2d Cir. 1945) (Hand, J.) (holding agreements in restraint of trade “were unlawful, though made abroad, if they were intended to affect im­ports and did affect them”). ... Close Starting in the 1970s, some turned to comity—now expressed as a weighing of contacts and in­terests—as a way of limiting the Sherman Act’s reach. 128 128 See, e.g., Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1297–98 (3d Cir. 1979) (listing “factors” to determine extraterritorial jurisdiction); Timberlane Lumber Co. v. Bank of Am., 549 F.2d 597, 614 (9th Cir. 1976) (listing “elements to be weighed” to determine extraterritoriality). ... Close The question, the Ninth Circuit wrote in Timberlane, was “whether American authority should be asserted in a given case as a matter of international comity and fairness.” 129 129 549 F.2d at 613. ... Close Section 403 of the Restatement (Third) of Foreign Relations Law adopted Timberlane’s interest balancing approach. 130 130 Restatement (Third) of the Foreign Relations Law of the United States § 403 (Am. Law Inst. 1987) (listing factors to determine if exercise of prescriptive jurisdiction is unreasonable); see also id. § 403 reporters’ note 2 (citing Timberlane). The Restatement departed from Timberlane by conceptualizing this balancing of interests not as “a require­ment of comity” but “a rule of international law.” Id. § 403 cmt. a. For a critique, see David B. Massey, Note, How the American Law Institute Influences Customary Law: The Reasonableness Requirement of the Restatement of Foreign Relations Law, 22 Yale J. Int’l L. 419, 428–34 (1997) (arguing section 403 does not reflect customary international law). ... Close But when the geographic scope of the Sherman Act again reached the Supreme Court in Hartford Fire Insurance Co. v. California, the Court refused to consider dismissal on grounds of “international comity” unless the conduct pro­hibited by U.S. law was required by foreign law. 131 131 See 509 U.S. 764, 799 (1993) (concluding if defendants could comply with both U.S. and foreign law, there was no need “to address other considerations that might in­form a decision to refrain from the exercise of jurisdiction on grounds of international comity”). ... Close This provoked a strong dissent from Justice Scalia, who thought the case should have been dis­missed on the basis of “‘prescriptive comity’: the respect sovereign na­tions afford each other by limiting the reach of their laws.” 132 132 Id. at 817 (Scalia, J., dissenting). ... Close Although Hartford was considered “a near death blow” for comity, 133 133 Spencer Weber Waller, The Twilight of Comity, 38 Colum. J. Transnat’l L. 563, 564 (2000); see also Edward T. Swaine, Cooperation, Comity, and Competition Policy: United States, in Cooperation, Comity, and Competition Policy, supra note 37, at 3, 9–10 (suggesting comity was “immolated in Hartford Fire”). ... Close just a decade later the Court looked to “principles of prescriptive comity” to limit the extraterritorial reach of American antitrust law in F. Hoffmann-La Roche Ltd. v. Empagran S.A. 134 134 542 U.S. 155, 165, 169 (2004). Although Empagran adopted Justice Scalia’s notion of prescriptive comity, its approach was quite different from his Hartford dissent. Empagran rejected comity as a case-by-case balancing approach, which it said was “too complex to prove workable,” and instead looked to comity as the basis for more categorical rules about when antitrust law applies abroad. Id. at 168. The following Term, a plurality of the Court again invoked “international comity” as the basis for limiting application of the Americans with Disabilities Act to matters affecting the internal affairs of foreign-flag ships. Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 130 (2005) (plurality opinion) (Kennedy, J.). Although Justice Scalia argued for a balancing of interests in Hartford, 509 U.S. at 818–19 (Scalia, J., dissenting), he retreated in Spector to a more characteristic pref­erence for categorical rules. See Spector, 545 U.S. at 158 (Scalia, J., dissenting) (“The fine tuning of legislation that the plurality requires would be better left to Congress. To at­tempt it through the process of case-by-case adjudication is a recipe for endless litigation and confusion.”). ... Close

Developments in the area of adjudicative jurisdiction mirrored those in the area of prescriptive jurisdiction as America moved from the nine­teenth century to the twentieth. The Supreme Court had applied a strict­ly territorial approach to personal jurisdiction in Pennoyer v. Neff. 135 135 95 U.S. 714, 722 (1877) (holding no state “can extend its process beyond that territory so as to subject either persons or property to its decisions”). ... Close But in the first half of the twentieth century, this territorial approach gave way to the more flexible framework of International Shoe Co. v. Washington, which required only “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” 136 136 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). ... Close The expansion of personal jurisdiction cre­ated more opportunities for parallel proceedings, which American courts developed new tools to manage, like the doctrine of forum non conven­iens 137 137 See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507–12 (1947) (recognizing authority of district court to dismiss on grounds of forum non conveniens). ... Close and (more questionably) the doctrines of prudential exhaustion 138 138 See Sarei v. Rio Tinto, PLC, 550 F.3d 822, 831 (9th Cir. 2008) (en banc) (plurality opinion) (McKeown, J.) (“[I]n ATS cases where the United States ‘nexus’ is weak, courts should carefully consider the question of exhaustion . . . .”). ... Close and international comity abstention, 139 139 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”). ... Close each of which allows a district court to stay or dismiss a case over which it has personal jurisdiction. 140 140 For further discussion, see infra notes 228–258 and accompanying text (discuss­ing adjudicative comity as principle of restraint). ... Close U.S. courts have also looked to comity when considering whether to enjoin par­allel proceedings in a foreign court. 141 141 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”). ... Close Recently, the Supreme Court has relied on “international comity” to reinforce limits on personal jurisdic­tion under the Due Process Clause itself. 142 142 See Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (“[I]nternational com­ity . . . reinforce[s] our determination that subjecting Daimler to the general jurisdiction of courts in California would not accord with the ‘fair play and substantial justice’ due process demands.” (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945))). ... Close And finally, even when a U.S. court takes jurisdiction, comity has been deemed relevant to how that ju­risdiction is exercised with respect to matters such as the discovery of evi­dence abroad under the Hague Evidence Convention. 143 143 See Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 543 (1987) (noting “concept of international comity” requires “par­ticularized analysis” of discovery requests). Congress has also authorized federal courts to assist foreign and international tribunals with respect to the discovery of evidence located in the United States. See 28 U.S.C. § 1782(a) (2012) (“The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal . . . .”). The Supreme Court has noted that “comity and parity concerns may be important as touchstones for a district court’s exercise of discretion in particular cases.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 261 (2004). ... Close

D.  New Justifications

The changing role of international comity—attributable to interna­tional law’s movement away from strict territoriality—led in turn to a shift in the justifications for comity. Until the turn of the twentieth century, a private rationale for comity predominated, most often expressed as com­mercial convenience. With the increased use of comity as a principle of restraint, however, more public rationales like respect for foreign sover­eignty and the fostering of friendly relations took over. 144 144 But see Joel R. Paul, The Transformation of International Comity, Law & Contemp. Probs., Summer 2008, at 19, 20 (“Whereas once courts justified applying foreign law out of deference to foreign sovereigns, courts later justified their decisions out of deference to the autonomy of private parties or to the political branches.”). ... Close The original reason for international comity was commercial convenience. Huber wrote that “nothing could be more inconvenient to commerce and to interna­tional usage than that transactions valid by the law of one place should be rendered of no effect elsewhere on account of a difference in the law.” 145 145 Huber, supra note 74, at 165. ... Close Public interests found expression only as a justi­fication for not extending comity to foreign laws, because under Huber’s third maxim, one nation would enforce the laws of another only insofar “as they do not cause preju­dice to the power or rights of such govern­ment or of its subjects.” 146 146 Id. at 164. ... Close

American courts in the nineteenth century tended to follow Huber in this regard. They consistently cited “mutual convenience” as the basis for extending comity to foreign laws, subject to the proviso that “they do not produce injury to the rights of [the] government or its citizens.” 147 147 Banks v. Greenleaf, 2 F. Cas. 756, 757 (C.C.D. Va. 1799) (No. 959) (Washington, J.); see also Holmes v. Remsen, 4 Johns. Ch. 460, 472 (N.Y. 1820) (Kent, J.) (noting recog­nition of foreign law “is founded on the mutual respect, comity and convenience of com­mercial nations”); Blanchard v. Russell, 13 Mass. (13 Tyng) 1, 4 (1816) (Parker, C.J.) (not­ing “courtesy, comity, or mutual convenience of nations, amongst which commerce has in­troduced so great an intercourse, has sanctioned the admission and operation of foreign laws relative to contracts”). ... Close Justice Story wrote in his treatise that “this comity of nations” was “found­ed upon the notion of mutual convenience and utility.” 148 148 Story, supra note 54, § 30, at 36. ... Close The justifica­tion for extending comity to foreign judgments was the same. 149 149 Croudson v. Leonard, 8 U.S. (4 Cranch) 434, 437 (1808) (“[P]ublic convenience seems to require that a question, which has once been fairly decided, should not be again litigated between the same parties . . . .”). ... Close Strik­ingly, the convenience rationale was adapted even to the seemly public doctrine of foreign sovereign immunity, which, the Court noted, “stands upon principles of public comity and convenience.” 150 150 The Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 353 (1822). ... Close To be sure, the con­venience rationale for comity was not exclusive in the nineteenth cen­tury. In Bank of Augusta v. Earle, Chief Justice Taney declared that comity helped not just “to promote justice between individuals” but also “to pro­duce a friendly intercourse between the sovereignties to which they be­long.” 151 151 38 U.S. (13 Pet.) 519, 589 (1839); see also The Sapphire, 78 U.S. (11 Wall.) 164, 167 (1870) (allowing foreign sovereign to bring suit in U.S. courts because “[t]o deny him this privilege would manifest a want of comity and friendly feeling”). ... Close But such references to the public interest in fos­tering friendly relations were rare during the nineteenth century, when the dominant rationale for comity was convenience, mostly conceived in terms of pri­vate interests.

Public interests began to play a larger role around the turn of the twentieth century. It was easy to justify comity as a principle of recogni­tion on grounds of convenience because both parties to a contract had an interest in having it be enforceable and, by extension, in the enforce­ability of judgments based on the contract. But comity as a principle of restraint was more difficult to explain in convenience terms. Exemption from extraterritorial legislation or adjudicative jurisdiction might be con­venient for the defendant, but hardly so for the plaintiff. Respect for for­eign sovereignty seemed a more natural fit. Thus, Justice Holmes in American Banana explained that to apply the Sherman Act extraterritori­ally “not only would be unjust, but would be an interference with the au­thority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent.” 152 152 Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909); see also F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (relying on prescrip­tive comity “to avoid unreasonable interference with the sovereign authority of other na­tions”); Hartford Fire Ins. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissent­ing) (defining prescriptive comity as “respect sovereign nations afford each other by limit­ing the reach of their laws”). ... Close Since the start of the twenti­eth century, American courts have invoked the public interest rationale for comity in other areas of law too. In Oetjen v. Central Leather Co., the Supreme Court said that the act of state doctrine rests “upon the highest considerations of international comity and expediency” and that to ques­tion the validity of a foreign act of state “would very certainly ‘imperil the amicable relations between governments and vex the peace of nations.’” 153 153 246 U.S. 297, 303–04 (1918). ... Close In sovereign party cases too, the interest in preserving relations with other nations and respecting foreign sovereignty came to the fore. 154 154 See Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003) (noting foreign sover­eign immunity “is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns”); 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 . . . .”). ... Close The exception to this trend has been adjudicative jurisdiction, where courts seem to have moved away from respect for sovereignty 155 155 See, e.g., Pennoyer v. Neff, 95 U.S. 714, 722 (1877) (observing because “[t]he several States are of equal dignity and authority, . . . the laws of one State have no opera­tion outside of its territory, except so far as is allowed by comity”). ... Close towards greater consideration of private interests. 156 156 See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (holding forum non conveniens requires consideration of “private interest of the litigant” as well as “[f]actors of public interest”); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (adopting due process standard of “fair play and substantial justice”). The author is grateful to Mary Kay Kane for this point. ... Close

The shift from private to public rationales for comity—from conven­ience to sovereignty—had a number of consequences. First, it bolstered the use of comity as a principle of restraint. Commercial convenience could explain why a foreign contract or judgment should be enforced, but it did not explain why a nation should restrict its prescriptive or adju­dicative jurisdiction. As noted above, 157 157 See supra note 152 and accompanying text (explaining restraint was difficult to justify on basis of convenience). ... Close the notion that another nation might have an interest in seeing a particular dispute resolved under its law or in its courts, which American courts should respect out of comity, seemed a better fit for judges seeking to justify restraint.

Second, the shift from private to public obscured the basis in comity of certain doctrines that protect private interests, like forum non conven­iens. For example, Quackenbush v. Allstate Insurance Co. distinguished Burford abstention from forum non conveniens on the ground that ab­stention was concerned with “comity and federalism,” principles involv­ing “deference to the paramount interests of another sovereign,” where­as the doctrine of forum non conveniens reflected a broader range of considerations, “most notably the convenience to the parties.” 158 158 Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 723 (1996). ... Close Histori­cally, comity had a great deal to do with the convenience of the parties. But once comity came to be seen exclusively in terms of “deference to the paramount interests of another sovereign,” 159 159 Id. ... Close doctrines that consid­ered private interests were excluded almost by definition.

Finally, the increasing reliance on maintaining friendly relations with foreign governments as a justification opened the door to arguments for increased deference to the executive branch on questions of interna­tional comity. Posner and Sunstein have argued that, because comity doc­trines are designed “to reduce tensions between the United States and other nations,” 160 160 Posner & Sunstein, supra note 33, at 1173. ... Close the Executive is in the best position to determine how they should apply. This is one of the international comity myths that Part IV will challenge.

International comity has performed a variety of functions in American law. It has served as the basis for recognizing foreign laws, foreign judg­ments, and the privilege of foreign governments to bring suit in U.S. court. It has also served as the basis for restraining the application of American law, the jurisdiction of American courts, and, more specifically, the jurisdiction of American courts over foreign governments. Interna­tional law’s move away from strict territorial sovereignty in the early twen­tieth century strongly influenced the evolution of international comity in American courts. This not only led American courts to use comity in new ways but also shifted the dominant rationale for comity from private in­terests in convenience to public interests in sovereignty and fostering friendly relations. Having briefly surveyed the historical development of international comity, this Article now looks in greater detail at the uses of international comity in American law today.

II. The Faces of Comity

As noted in the introduction, many doctrines of American law mani­fest the principle of international comity. If international comity is defer­ence to foreign government actors, then one may begin by dividing the comity doctrines into three categories based on the actors to whom def­erence is given: deference to foreign lawmakers is “prescriptive comity”; deference to foreign courts is “adjudicative comity”; and deference to foreign governments as litigants is “sovereign party comity.” Within each of these categories, one must further distinguish based upon the function of the doctrine. Does it operate as a “principle of recognition” to recog­nize foreign law, foreign courts, and foreign sovereigns as litigants? Or does it operate as a “principle of restraint” to limit the reach of American law, the jurisdiction of American courts, and, more specifically, the juris­diction of American courts over foreign sovereign defendants?

A. Prescriptive Comity

Justice Scalia coined the phrase “prescriptive comity” in his Hartford dissent, defining it as “the respect sovereign nations afford each other by limiting the reach of their laws.” 161 161 Hartford Fire Ins. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissent­ing). ... Close The Supreme Court’s decision in Empagran employed “prescriptive comity” in the same sense, as a means “to avoid unreasonable interference with the sovereign authority of other nations.” 162 162 F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004); see also Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 130 (2005) (plurality opinion) (Kennedy, J.) (referring to “international comity” to limit interference with internal affairs of foreign-flag ship); Sosa v. Alvarez-Machain, 542 U.S. 692, 761 (2004) (Breyer, J., concur­ring in part and concurring in the judgment) (referring to “notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its laws and their enforcement”). ... Close As noted above, the Court first used international comity this way in American Banana Co. v. United Fruit Co. 163 163 213 U.S. 347 (1909). ... Close to limit the extraterrito­rial application of the Sherman Act. For a country to treat a defendant “according to its own notions rather than those of the place where he did the acts,” Justice Holmes wrote, “not only would be unjust, but would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent.” 164 164 Id. at 356. ... Close

The label “prescriptive comity” also fits Huber’s and Story’s concep­tion of comity as the recognition of foreign law. 165 165 See supra notes 74–91 and accompanying text (discussing Huber and Story). ... Close The word “prescrip­tive” refers to “jurisdiction to prescribe”—that is, “to make [a state’s] law applicable to the activities, relations, or status of persons, or the interests of persons in things.” 166 166 Restatement (Third) of the Foreign Relations Law of the United States § 401(a) (Am. Law Inst. 1987). Jurisdiction to prescribe is distinct from jurisdiction to adjudicate. See id. § 401(b) (defining jurisdiction to adjudicate as jurisdiction “to subject persons or things to the process of its courts or administrative tribunals”). Jurisdiction to prescribe is also distinct from jurisdiction to enforce. See id. § 401(c) (defining jurisdiction to enforce as jurisdiction “to induce or compel compliance or to punish noncompliance with its laws or regulations”). ... Close When one nation applies the laws of another in its courts, it recognizes that the other nation has jurisdiction to prescribe rules for the transaction or event. If that recognition occurs as a matter of comity, as has traditionally been the case with the conflict of laws in the United States, it may properly be deemed an exercise of “prescriptive comity.”

Some writers have preferred “legislative comity,” 167 167 See Ramsey, supra note 19, at 906–37 (referring to “legislative comity”). ... Close but that phrase could describe either comity to legislatures or comity by legislatures. Pre­scriptive comity is comity to lawmakers—often legislatures, but sometimes courts or executive branch officials. 168 168 See Restatement (Third) of the Foreign Relations Law of the United States § 401(a) (noting prescriptive jurisdiction may be exercised “by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court”). ... Close Furthermore, prescriptive comity is exercised by courts. It is true that courts sometimes justify the extension of comity through assumptions about what the legislature would want. 169 169 See, e.g., Hartford Fire Ins. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (“‘[P]rescriptive comity’ . . . is exercised by legislatures when they enact laws, and courts assume it has been exercised when they come to interpreting the scope of laws their legislatures have enacted.”); Story, supra note 54, § 38, at 42 (“In the silence of any positive rule, affirming, or denying, or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless they are re­pugnant to its policy, or prejudicial to its interests.”). ... Close It is also true that legislatures sometimes speak directly to the recognition of foreign law 170 170 See, e.g., Or. Rev. Stat. §§ 15.300–.380 (2013) (codifying choice of law for con­tracts); id. §§ 15.400–.460 (codifying choice of law for torts and other noncontrac­tual claims). ... Close or the extraterritorial reach of domestic law. 171 171 See, e.g., Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 15 U.S.C. §§ 6a, 45(a)(3) (2012) (limiting geographic scope of Sherman Act and Federal Trade Commission Act). ... Close But it is ultimately courts that interpret and apply these rules, sometimes relying on background principles of “prescriptive comity” to do so. 172 172 See, e.g., F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (relying on prescriptive comity to interpret geographic scope of Sherman Act in light of FTAIA). ... Close

1. As a Principle of Recognition. — As a principle of recognition, pre­scriptive comity operates in American law today through state-law rules on the conflict of laws, the federal act of state doctrine, and the practice of some courts to recognize extraterritorial acts of state on the basis of comity. States in the United States have adopted a variety of methodolo­gies for choosing the law to apply in a case that touches more than one jurisdiction. 173 173 See Symeon C. Symeonides, Choice of Law in the American Courts in 2013: Twenty-Seventh Annual Survey, 62 Am. J. Comp. L. 223, 282 (2014) (summarizing choice-of-law methodologies). ... Close In a few states, conflicts rules are codified by statute, 174 174 See, e.g., Or. Rev. Stat. §§ 15.300–.380 (codifying choice of law for contracts); id. §§ 15.400–.460 (codifying choice of law for torts and other noncontractual claims). ... Close but in most they are judge-made common law. American courts generally ap­ply the same choice-of-law rules in interstate and international cases. 175 175 Restatement (Second) of Conflicts of Laws § 10 (Am. Law Inst. 1971) (“The rules in the Restatement of this Subject apply to cases with elements in one or more States of the United States and are generally applicable to cases with elements in one or more foreign nations.”). ... Close In deciding conflicts cases today, U.S. courts rarely invoke comity directly. Instead, they simply apply the choice-of-law rules of the state in which they sit. 176 176 See, e.g., Pounders v. Enserch E & C, Inc., 306 P.3d 9, 11–17 (Ariz. 2013) (apply­ing Arizona choice-of-law rules to determine New Mexico law governed tort action). Fed­eral courts exercising diversity jurisdiction apply the conflicts rules of the state in which they sit. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (“The conflict of laws rules to be applied by the federal court in Delaware must conform to those prevail­ing in Delaware’s state courts.”). ... Close But the origin of these rules in comity is clearly seen in the wide­spread adoption of a public policy exception. 177 177 Restatement (Second) of Conflicts of Laws § 90 (“No action will be entertained on a foreign cause of action the enforcement of which is contrary to the strong public policy of the forum.”). ... Close This exception is a direct descendant of Huber’s third maxim that a government should enforce foreign laws “so far as they do not cause prejudice to the power or rights of such government or of its subjects.” 178 178 Huber, supra note 74, at 164; see also Story, supra note 54, § 25, at 31 (“No na­tion can . . . be required to sacrifice its own interests in favour of another; or to enforce doctrines which, in a moral or political view, are incompatible with its own safety and hap­piness, or conscientious regard to justice and duty.”). ... Close

The act of state doctrine provides another example of prescriptive comity operating as a principle of recognition. The doctrine is a rule of federal common law under which both federal and state courts must not question the validity of a foreign sovereign’s official act fully performed within its own territory. 179 179 See W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 409 (1990) (“The act of state doctrine . . . requires that, in the process of deciding [cases], the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.”). ... Close In an early case, the Supreme Court character­ized the doctrine as resting on “the highest considerations of interna­tional comity and expediency.” 180 180 Oetjen v. Cent. Leather Co., 246 U.S. 297, 303–04 (1918). ... Close In contrast to state-law rules on the con­flict of laws, the act of state doctrine has no public policy exception. A U.S. court must recognize as valid a foreign act to which the doctrine applies, “[h]owever offensive to the public policy of this country and its constituent States [the act] may be.” 181 181 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436–37 (1964). ... Close This aspect of the doctrine has perhaps obscured its foundation in comity. In modern cases, the Supreme Court has said that the act of state doctrine “arises out of the basic rela­tionships between branches of government in a system of separation of powers.” 182 182 Id. at 423; see also Kirkpatrick, 493 U.S. at 404 (noting evolution in “jurispruden­tial foundation for the act of state doctrine” from comity to separation of powers). ... Close One might characterize the act of state doctrine as one that rests in part on a basis other than comity. 183 183 See supra note 45 and accompanying text (describing additional rationale for pre­sumption against extraterritoriality). ... Close But in fact, the separation-of-powers rationale for the act of state doctrine has international comity at its heart, for it rests on the perceived need for respect to foreign govern­ments. 184 184 See Sabbatino, 376 U.S. at 423 (“[The act of state doctrine] expresses the strong sense of the Judicial Branch that . . . passing on the validity of foreign acts of state may hin­der rather than further this country’s pursuit of goals . . . in the international sphere.”). ... Close Both by function and by rationale, therefore, the act of state doctrine is properly considered a manifestation of international comity. 185 185 The Second Circuit has looked to “principles of comity” to determine whether to recognize foreign acts of state having extraterritorial effect. Allied Bank Int’l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 519 (2d Cir. 1985). It has held that “[a]cts of foreign governments purporting to have extraterritorial effect—and consequently, by definition, falling outside the scope of the act of state doctrine—should be recognized by the courts only if they are consistent with the law and policy of the United States.” Id. at 522; see also Banco Nacional de Cuba v. Chem. Bank N.Y. Tr. Co., 658 F.2d 903, 908 (2d Cir. 1981) (“[W]hen enforcement has promised to further, rather than violate, the policy aims of the United States, our courts have given extraterritorial effect to foreign expropri­ations.”); Republic of Iraq v. First Nat’l City Bank, 353 F.2d 47, 51 (2d Cir. 1965) (“[W]hen property confiscated is within the United States at the time of the attempted confiscation, our courts will give effect to acts of state ‘only if they are consistent with the policy and law of the United States.’” (quoting Restatement of the Foreign Relations Law of the United States § 46 (Am. Law Inst. Proposed Official Draft 1962))). ... Close

In summary, prescriptive comity operates as a principle of recogni­tion in American law through state conflicts rules and the federal act of state doctrine. Both doctrines defer to foreign lawmakers by recognizing their authority to prescribe rules to govern a case before a U.S. court.

2. As a Principle of Restraint. — Prescriptive comity operates as a principle of restraint in American law today mainly through the pre­sumption against extraterritoriality. As noted above, the modern pre­sumption against extraterritoriality rests on two rationales: (1) “[i]t serves to protect against unintended clashes between our laws and those of other nations which could result in international discord;” 186 186 EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20–22 (1963)). ... Close and (2) it reflects the assumption that Congress is “‘primarily concerned with do­mestic conditions.’” 187 187 Id. (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). ... Close Only the first rationale reflects international com­ity. As previously noted, Justice Holmes turned to international com­ity to support the presumption against extraterritoriality in American Banana, reasoning that application of U.S. law to foreign conduct “would be an interference with the authority of another sovereign, contrary to the com­ity of nations, which the other state concerned justly might resent.” 188 188 Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909). Prior to American Banana, the presumption against extraterritoriality was thought to rest on international law, and was simply an application of the Charming Betsy canon. See Knox, supra note 124, at 362–66 (describing origins of presumption against extraterritoriality). ... Close The second rationale—that Congress is primarily concerned with domes­tic conditions—first appeared in the Supreme Court’s 1949 decision in Foley Brothers as a reasonable assumption about the focus of congressional concern in most cases. 189 189 See 336 U.S. at 285 (“[The presumption] is a valid approach whereby unex­pressed congressional intent may be ascertained. It is based on the assumption that Congress is primarily concerned with domestic conditions.”); see also William S. Dodge, Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Int’l L. 85, 117–19 (1998) (dis­cussing “domestic conditions” rationale). ... Close In recent cases, the “domestic conditions” ra­tionale has predominated, 190 190 In particular, the Court has made clear that the “presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law.” Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2877–78 (2010); see also Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 174 (1993) (noting “presumption has a foundation broader than the desire to avoid conflict with the laws of other nations”); Smith v. United States, 507 U.S. 197, 204 n.5 (1993) (rejecting argument presumption does not apply where there is no risk of conflict with foreign law). ... Close but the Court leaned heavily on comity in Kiobel v. Royal Dutch Petroleum Co. to limit the federal-common-law cause of action for human rights violations under the Alien Tort Statute (ATS), emphasizing that the “presumption ‘serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.’” 191 191 133 S. Ct. 1659, 1664 (2013) (quoting Arabian Am. Oil Co., 499 U.S. at 248). ... Close

U.S. courts have sometimes used other tools to restrain the reach of U.S. statutes. In Empagran, the Supreme Court invoked not the presump­tion against extraterritoriality but a principle of “constru[ing] ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations,” 192 192 F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004). ... Close which Justice Breyer characterized as a “principle of prescriptive comity.” 193 193 Id. at 164, 165, 169. ... Close Lower courts have sometimes engaged in a case-by-case balancing of interests under section 403 of the Restatement (Third) of Foreign Relations Law. Although the Third Restatement took the position that such interest balancing was required by customary in­ternational law, 194 194 See Restatement (Third) of the Foreign Relations Law of the United States § 403 cmt. a (Am. Law Inst. 1987) (“This section states the principle of reasonableness as a rule of international law.”). But see Massey, supra note 130, at 428–34 (arguing section 403 does not reflect customary international law). ... Close lower courts adopting section 403 have generally char­acterized it as an exercise of comity. 195 195 See, e.g., In re French, 440 F.3d 145, 153 (4th Cir. 2006) (“Applying [section 403] factors, we can only conclude that the doctrine of international comity does not require that we forego application of the United States Bankruptcy Code in favor of Bahamian bankruptcy law.”); United States v. Nippon Paper Indus. Co., 109 F.3d 1, 8 (1st Cir. 1997) (“[T]o the extent that comity is informed by general principles of reasonableness, see Restatement (Third) of the Foreign Relations Law of the United States § 403, the indict­ment lodged against NPI is well within the pale.”); In re Maxwell Commc’n Corp., 93 F.3d 1036, 1046–53 (2d Cir. 1996) (applying section 403 factors under heading of “internation­al comity”). ... Close But the Supreme Court has spe­cifically rejected a case-by-case approach to extraterritoriality. 196 196 See Empagran, 542 U.S. at 168 (“[T]his approach is too complex to prove worka­ble.”). Justice Scalia has also retreated from the balancing approach he advocated in Hartford. See supra note 134 (explaining Justice Scalia’s approaches in Empagran and Hartford). ... Close Going forward, it seems likely that prescriptive comity will continue to operate as a principle of restraint in American law, but primarily through the pre­sumption against extraterritoriality, which the Supreme Court in Morrison instructed lower courts to apply “in all cases.” 197 197 Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2881 (2010). To say that the presumption applies in all cases is not to say that U.S. statutes apply only to conduct in the United States. Morrison rejected such a mechanical approach and instructed lower courts to determine the “focus” of the statute, which (as in Morrison) may be a place other than where the regulated conduct occurs. Id. at 2884. ... Close

Occasionally, conduct prohibited by U.S. law may be required by for­eign law, in which case compliance with U.S. law may be excused under the doctrine of foreign state compulsion. 198 198 See Restatement (Third) of the Foreign Relations Law of the United States § 441 (restating doctrine of foreign state compulsion); see also Anthony J. Colangelo, Absolute Conflicts of Law, 91 Ind. L.J. (forthcoming 2016) (manuscript at 7–48) (on file with the Columbia Law Review) (discussing doctrine of foreign state compulsion). The doctrine is also sometimes called “foreign sovereign compulsion.” Id. (manuscript at 12). ... Close In Hartford Fire Insurance Co. v. California, the Supreme Court acknowledged the possibility of declin­ing jurisdiction “under the principle of international comity” if the con­duct prohibited by U.S. antitrust law were required by the law of another nation, although the Court found no such conflict in Hartford. 199 199 See 509 U.S. 764, 797, 799 (1993) (“Since the London reinsurers do not argue that British law requires them to act in some fashion prohibited by the law of the United States . . . or claim that their compliance with the laws of both countries is otherwise im­possible, we see no conflict with British law.”). ... Close Lower courts applying the doctrine of foreign state compulsion in antitrust cases have noted its basis in comity. 200 200 See, e.g., In re Vitamin C Antitrust Litig., 810 F. Supp. 2d 522, 544 (S.D.N.Y. 2011) (noting foreign state compulsion doctrine “acknowledges comity principles by accommo­dating the interests of equal sovereigns and giving due deference to the official acts of for­eign governments”); Trugman-Nash, Inc. v. N.Z. Dairy Bd., 942 F. Supp. 905, 909 (S.D.N.Y. 1996) (observing “doctrines of act of state, foreign sovereign compulsion, and inter­national comity . . . overlap to a large degree”). ... Close Lower courts have also required a comity analysis before ordering compliance with an injunction that would require violating foreign law. 201 201 See, e.g., Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 138 (2d Cir. 2014) (holding “district court should undertake a comity analysis” in light of “apparent conflict between the obligations set forth in the Asset Freeze Injunction and applicable Chinese banking laws”). ... Close Sometimes, Congress itself writes a for­eign state compulsion defense into the text of a statute. In 1991, for ex­ample, Congress created an exception to Title VII of the 1964 Civil Rights Act for “a workplace in a foreign country if compliance with [Title VII] would cause such employer . . . to violate the law of the foreign country in which such workplace is located.” 202 202 42 U.S.C. § 2000e-1(b) (2012); see also Age Discrimination in Employment Act, 29 U.S.C. § 623(f)(1) (2012) (incorporating defense similar to that in Title VII); Americans with Disabilities Act, 42 U.S.C. § 12112(c)(1) (incorporating defense similar to that in Title VII). ... Close Properly understood, the foreign state compulsion defense rests on the expressed or presumed intent of the legislature, and its availability depends on the interpretation of the particular statute or rule at issue. 203 203 See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction § 222 cmt. a (Am. Law Inst., Preliminary Draft No. 3, 2015) (noting “extent of discretion depends on the statute”). It may also depend on the good faith of the person raising the defense. See id. § 222 cmt. d (“U.S. courts have refused to permit persons who have acted in bad faith to rely on the defense.”). ... Close Although recognition of foreign law is a prerequisite for foreign state compulsion, the doctrine operates as a principle of restraint because its effect is to limit the application of U.S. law that would otherwise govern.

Thus, prescriptive comity operates as a principle of restraint in American law chiefly through the presumption against extraterritoriality and the doc­trine of foreign state compulsion. These doctrines defer to foreign law­makers by limiting the reach of U.S. laws and thus protecting against possible conflicts with foreign law.

B. Adjudicative Comity

Prescriptive comity has an adjudicative counterpart—here called “adjudicative comity” 204 204 Some authors have used the phrase “adjudicatory comity.” See Calamita, supra note 37, at 615 (distinguishing “adjudicatory comity” from “prescriptive comity”); Childress, supra note 20, at 16 (stating “adjudicatory comity is perhaps the most robust use of the comity doctrine in transnational litigation”). This Article uses “adjudicative” as counter­part to “prescriptive,” but no difference in meaning is intended. ... Close —which may be defined as deference to foreign courts. 205 205 In this respect, international comity mirrors international law, which recognizes both “jurisdiction to prescribe” and “jurisdiction to adjudicate.” Restatement (Third) of the Foreign Relations Law of the United States § 401(a)–(b) (Am. Law Inst. 1987). As Part III of this Article explains, however, international comity is distinct from international law. See infra Part III (explaining differences between international comity and international law). ... Close As a principle of recognition, adjudicative comity operates in American law through the rules for recognizing foreign judgments and through judicial assistance to foreign courts with the discovery of evi­dence under 28 U.S.C. § 1782. 206 206 See 28 U.S.C. § 1782(a) (2012) (“The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal . . . .”). ... Close As a principle of restraint, adjudicative comity operates through a multitude of doctrines that limit the exercise of U.S. courts’ jurisdiction, often with the aim of avoiding multiple proceedings.

Although adjudicative comity arises in many different contexts, the basic question is often the same—whether to defer to a foreign tribunal’s resolution of a dispute. What changes is the time at which the question is asked. In the judgments context, the foreign tribunal has already made its decision. When a U.S. court is asked to decline jurisdiction in favor of a pending foreign proceeding (or alternatively to enjoin the parties from continuing such a proceeding), the foreign tribunal has taken jurisdic­tion but not yet issued a judgment. And when the court is asked to de­cline jurisdiction for lack of personal jurisdiction or on grounds of forum non conveniens, a foreign proceeding may not even have begun. These different ways of exercising adjudicative comity can best be viewed as parts of a larger whole. 207 207 See Am. Law Inst., Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute § 11 cmt. a, at 132 (2006) (“Declination of jurisdiction—whether via lis pendens or via forum non conveniens—is closely related to recognition and enforcement of foreign judgments.”); see also Calamita, supra note 37, at 650 (placing doctrines along continuum). Paul Stephan similarly notes that “[e]ncounters between courts may be retrospective, prospective, or on-going.” Paul B. Stephan, Courts on Courts: Contracting for Engagement and Indifference in International Judicial Encounters, 100 Va. L. Rev. 17, 24 (2014). But he analyzes the doctrines from the perspective of contract theory rather than comity. See id. at 54–64 (providing contract theory analysis); see also id. at 23 (“Vague terms, such as ‘comity,’ promise much and deliver little in terms of usa­ble instructions for judges facing a potential encounter with foreign courts.”). ... Close

Others have used the phrases “judicial comity” 208 208 Ramsey, supra note 19, at 897–906; Slaughter, A Global Community of Courts, supra note 37, at 194. ... Close or “the comity of courts.” 209 209 Roger P. Alford, Ancillary Discovery to Prove Denial of Justice, 53 Va. J. Int’l L. 127, 147 (2012); Childress, supra note 20, at 16. ... Close The problem with these phrases—and particularly with the latter—is that they are liable to be misunderstood as referring to comity by courts rather than comity to courts. All the international comity doc­trines discussed in this Article are exercised by courts. What distinguishes the doctrines in this section is that they manifest comity to foreign courts, whether by recognizing those courts’ judgments or by restraining the ju­risdiction of U.S. courts.

Some responsibility for the terminological confusion must be laid at Justice Scalia’s door. In his Hartford dissent, Scalia referred to Justice Story’s distinction between the “comity of courts” and the “comity of na­tions.” 210 210 Hartford Fire Ins. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissent­ing) (citing Story, supra note 54, § 38, at 42). ... Close The “comity of courts,” Scalia said, referred to doctrines “where­by judges decline to exercise jurisdiction over matters more appropri­ately adjudged elsewhere.” 211 211 Id. ... Close By contrast, the “comity of nations” (which Scalia equated with prescriptive comity) was “exercised by legislatures when they enact laws.” 212 212 Id. ... Close In fact, Justice Story meant nothing of the kind. In Story’s day, U.S. courts did not have authority to decline jurisdiction in favor of another tribunal. 213 213 See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.) (“We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.”); Wadleigh v. Veazie, 28 F. Cas. 1319, 1320 (C.C.D. Me. 1838) (No. 17,031) (Story, J.) (rejecting idea of “discretionary authority” to avoid parallel pro­ceedings and stating no federal court “can escape from its duty, in any case, which congress has confided to its jurisdiction”). ... Close Story’s reference to the “comity of courts” was simply a rhetorical flourish to emphasize that courts exercise comity not on behalf of themselves but on behalf of their sovereign. 214 214 See Story, supra note 54, § 38, at 42 (“In the silence of any positive rule, . . . courts of justice presume the tacit adoption of [foreign laws] by their own government, unless they are repugnant to its policy, or prejudicial to its interests. It is not the comity of the courts, but the comity of the nation . . . .”). ... Close For Story, there was no separate category called the “comity of courts.” All comity was the “comity of nations,” and all of it was exer­cised by courts.

1. As a Principle of Recognition. — U.S. courts exercise adjudicative comity as a principle of recognition when they give effect to foreign judg­ments. U.S. courts have long invoked a “spirit of comity” to recog­nize foreign judgments at common law. 215 215 Croudson v. Leonard, 8 U.S. (4 Cranch) 434, 437 (1808). ... Close Before Erie, 216 216 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). ... Close the rules for recognizing foreign judgments were considered rules of general com­mon law. 217 217 A state court’s recognition of a foreign judgment did not raise a federal ques­tion. See Aetna Life Ins. v. Tremblay, 223 U.S. 185, 190 (1912) (holding Supreme Court had no jurisdiction to review state court’s decision on recognition of foreign judgment). Further, state courts were not obliged to follow the Supreme Court’s decision in Hilton requiring reciprocity as a condition for recognizing foreign judgments. See Johnston v. Compagnie Générale Transatlantique, 152 N.E. 121, 123 (N.Y. 1926) (concluding state court “is not bound to follow the Hilton Case”). ... Close After Erie, it was generally assumed that the recognition of foreign judgments was governed by state rather than federal law. 218 218 See, e.g., Somportex Ltd. v. Phila. Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971) (applying Pennsylvania law to enforcement of foreign judgment); Restatement (Third) of the Foreign Relations Law of the United States § 481 cmt. a (Am. Law Inst. 1987) (stating “recognition and enforcement of foreign country judgments is a matter of State law”). ... Close In a majority of states, these rules are codified for money judgments in two uniform acts. 219 219 2005 Uniform Act, supra note 106; 1962 Uniform Act, supra note 106. ... Close These acts generally follow the rules set forth by the U.S. Supreme Court in Hilton (minus the reciprocity requirement). As with the recognition of foreign law, 220 220 See supra notes 177–178 and accompanying text (explaining public policy excep­tion in conflict of laws). ... Close Huber’s influence appears most clearly in the public policy exception, which permits a U.S. court to refuse re­cognition if the foreign judgment “is repugnant to the public policy of this state or of the United States.” 221 221 2005 Uniform Act, supra note 106, § 4(c)(3); see also 1962 Uniform Act, supra note 106, § 4(b)(3) (noting foreign judgment need not be recognized if cause of action “on which the judgment is based is repugnant to the public policy of this state”). ... Close State courts consider the uniform acts to be codifications of international comity, 222 222 See, e.g., Sung Hwan Co. v. Rite Aid Corp., 850 N.E.2d 647, 650–51 (N.Y. 2006) (characterizing 1962 Uniform Act as adoption of “well-settled comity principles”); Kwongyuen Hangkee Co. v. Starr Fireworks, Inc., 634 N.W.2d 95, 97 (S.D. 2001) (“[1962 Uniform Act] is a codification of the common-law doctrine of comity applied to foreign nation money judgments.”). ... Close and they continue to recognize foreign judgments not covered by the acts as a matter of comity. 223 223 See 2005 Uniform Act, supra note 106, § 11 (“This [act] does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment not within the scope of this [act].”); see also Manco Contracting Co. (W.W.L.) v. Bezdikian, 195 P.3d 604, 608 (Cal. 2008) (“Comity remains the basis for recognizing foreign judg­ments not covered by the act . . . .”); Roxas v. Marcos, 969 P.2d 1209, 1261 n.36 (Haw. 1998) (“The Act does not preclude recognition of other types of judg­ments through the doctrine of comity.”). ... Close

Federal courts also exercise adjudicative comity as a principle of recognition when they assist foreign courts with the discovery of evidence in the United States. In 28 U.S.C. § 1782, Congress authorized district courts to order discovery “for use in a proceeding in a foreign or interna­tional tribunal.” 224 224 28 U.S.C. § 1782(a) (2012). The request for discovery may be made by the tribu­nal itself or by “any interested person.” Id. Lower courts are divided on whether § 1782 may be used for discovery in international arbitrations. See Alford, supra note 209, at 133–39 (discussing different approaches to discovery for international arbitrations). ... Close The Supreme Court refused in Intel Corp. v. Advanced Micro Devices, Inc. to impose a rule limiting assistance to evidence that would be discoverable under the foreign tribunal’s rules, but the Court noted that “comity and parity concerns may be important as touchstones for a district court’s exercise of discretion in particular cases.” 225 225 542 U.S. 241, 261 (2004). ... Close Since Intel, lower courts have recognized international comity as the underlying basis of § 1782, 226 226 See, e.g., In re Berlamont, No. 14–mc–00190 (JSR), 2014 WL 3893953, at *1 (S.D.N.Y. Aug. 4, 2014) (“In the interests of international comity, 28 U.S.C. § 1782 permits federal courts to grant discovery within the United States for use in foreign proceedings.”). ... Close and have declined to order discovery when doing so would interfere with the foreign proceedings. 227 227 See, e.g., In re Microsoft Corp., No. 06-10061-MLW, 2006 WL 1344091, at *4 (D. Mass. Apr. 17, 2006) (“[C]onsiderations of comity strongly favor quashing the subpoe­na.”); In re Microsoft Corp., No. C 06-80038 JF (PVT), 2006 WL 825250, at *3 (N.D. Cal. Mar. 29, 2006) (“[I]ssues of comity weigh against allowing the discovery in this case.”). This possibility of interference arises when an “interested person,” rather than the foreign court itself, seeks discovery. See supra note 224 (discussing 28 U.S.C. § 1782(a)). ... Close As a form of deference to a foreign tribunal, adjudicative comity under § 1782 operates as a principle of recognition, although quashing discovery when it would in­terfere with foreign proceedings also combines an element of restraint.

In short, adjudicative comity operates as a principle of recognition in American law through state law providing for the recognition of for­eign judgments and a federal statute authorizing district courts to help foreign courts with the discovery of evidence in the United States. Under these laws, U.S. courts defer to foreign courts by assisting in their resolu­tion of cases or by recognizing their judgments.

2. As a Principle of Restraint. — As a principle of restraint, adjudica­tive comity finds expression in a number of doctrines. Many are designed to mitigate the possibility of parallel proceedings, which the Supreme Court’s expansion of personal jurisdiction in International Shoe made more likely. 228 228 See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (permitting exercise of personal jurisdiction based on “certain minimum contacts with it such that the mainte­nance of the suit does not offend ‘traditional notions of fair play and substantial justice’” (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)); see also supra note 136 and accom­panying text (discussing International Shoe). ... Close

Just two years after International Shoe, in Gulf Oil Corp. v. Gilbert, 229 229 330 U.S. 501 (1947). ... Close the Supreme Court recognized the authority of a federal court to dismiss a suit over which it had jurisdiction on grounds of forum non conveniens. Under this doctrine, a court will first look to see if an adequate alterna­tive forum exists. 230 230 Id. at 506–07 (“In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to pro­cess . . . .”); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981) (“At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alter­native forum.”). ... Close If so, the court will weigh the private and public inter­ests 231 231 Gilbert, 330 U.S. at 508–09 (outlining private and public interest factors); see also Piper, 454 U.S. at 257–61 (discussing district court’s application of private and public interest factors). ... Close to see if they are sufficient to overcome the “strong presumption in favor of the plaintiff’s choice of forum.” 232 232 Piper, 454 U.S. at 255. The presumption in favor of a foreign plaintiff’s choice of a U.S. forum is less strong. See id. at 256 (stating “foreign plaintiff’s choice deserves less deference”). ... Close Although an early Supreme Court case applying the doctrine in admiralty had referred to “motives of convenience or international comity,” 233 233 The Belgenland, 114 U.S. 355, 363 (1885). ... Close forum non conveniens generally has not been considered a comity doctrine. 234 234 But see Am. Dredging Co. v. Miller, 510 U.S. 443, 467 (1994) (Kennedy, J., dis­senting) (noting “forum non conveniens defense promotes comity and trade”). ... Close In fact, the Court has dis­tinguished forum non conveniens from comity in a domestic context on the ground that comity gives “deference to the paramount interests of another sovereign,” while forum non conveniens reflects a broader range of considerations like “convenience to the parties.” 235 235 Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 723 (1996). ... Close Historically, how­ever, comity had as much to do with private interests in convenience as with the public interests of other sovereigns. 236 236 See supra notes 145–156 and accompanying text (discussing justifications for comity). ... Close Because the doctrine of forum non conveniens allows U.S. courts to restrain their exercise of ju­risdiction in deference to foreign courts, it is properly considered a doc­trine of international comity. 237 237 Other scholars have likewise identified the doctrine of forum non conveniens as a manifestation of comity. See, e.g., Calamita, supra note 37, at 637 (noting “adjudicatory comity serves as the founding principle for the court’s acceptance of [forum non conven­iens]”); Slaughter, A Global Community of Courts, supra note 37, at 205 (“As courts grap­ple with issues such as forum selection clauses, forum non conveniens motions, and parallel suits, they are developing a more nuanced conception of judicial comity.”). ... Close

The Supreme Court has repeatedly emphasized “the virtually unflag­ging obligation of the federal courts to exercise the jurisdiction given them.” 238 238 Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (quoting Colorado River); Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013) (quoting Colorado River). ... Close Forum non conveniens is an exception that applies “in certain narrow circumstances.” 239 239 Quackenbush, 517 U.S. at 721. ... Close In the domestic context, a few other abstention doctrines exist. The Court has held that federal courts may stay their pro­ceedings in deference to other federal courts. 240 240 See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (“[T]he power to stay pro­ceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.”); see also Colorado River, 424 U.S. at 817 (1976) (describing Landis as rule “be­tween federal district courts”). ... Close The Court has also de­veloped specific doctrines for abstaining in favor of state courts and has permitted abstention in cases falling outside these doctrines in “excep­tional” circumstances. 241 241 Colorado River, 424 U.S. at 818. ... Close Finally, the Court has recognized that federal courts may decline to hear a case “where the relief being sought is equi­table in nature or otherwise discretionary,” like a declaratory judgment. 242 242 Quackenbush, 517 U.S. at 721. ... Close With the possible exception of the last, however, none of these doctrines authorizes abstention in favor of foreign courts, and the Supreme Court has never done so except under the doctrine of forum non conveniens.

Nevertheless, lower courts have developed other comity doctrines to restrain adjudicative jurisdiction in international cases. The Seventh and Ninth Circuits have adopted a doctrine of “prudential exhaustion” for in­ternational law claims, requiring plaintiffs “to exhaust their local reme­dies in accordance with the principle of international comity.” 243 243 Sarei v. Rio Tinto PLC, 550 F.3d 822, 831 (9th Cir. 2008) (en banc) (plurality opinion) (McKeown, J.); see also Fischer v. Magyar Államvasutak Zrt., 777 F.3d 847, 859 (7th Cir. 2015) (characterizing its holding as “prudential exhaustion requirement based on international comity concerns”). These opinions also assumed that international law required exhaustion. See id. at 857 (“[C]ustomary international law may impose an exhaustion requirement that limits plaintiffs’ ability to bring [expropriation] claim outside the country against which they bring suit.”); Sarei, 550 F.3d at 829–30 (en banc) (plurality opinion) (McKeown, J.) (discussing exhaustion of local remedies under international law). But customary international law requires the exhaustion of local remedies in domes­tic courts only before a claim is brought in an international tribunal. See Interhandel (Switz. v. U.S.), Judgment, 1959 I.C.J. Rep. 6, 27 (Mar. 21) (“The rule that local remedies must be exhausted before international proceedings may be instituted is a well-established rule of customary international law . . . .”); Crawford, supra note 24, at 710–11 (“A claim will not be admissible on the international plane unless the individual alien or corporation con­cerned has exhausted the legal remedies available in the state which is alleged to be the author of injury.”). There is no international law rule requiring the exhaustion of local remedies before a claim is brought in another domestic court. ... Close The Ninth Circuit developed this doctrine in the context of human rights lit­igation under the Alien Tort Statute. 244 244 28 U.S.C. § 1350 (2012). ... Close Inspired by a footnote in the Supreme Court’s Sosa decision, 245 245 See Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004) (stating “we would certainly consider [an exhaustion] requirement in an appropriate case”). Section 2(b) of the Torture Victim Protection Act imposes an exhaustion requirement by statute for human rights claims brought under that act. See 28 U.S.C. § 1350 note (Torture Victim Protection) (“A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.”). ... Close the Ninth Circuit held “that in ATS cas­es where the United States ‘nexus’ is weak, courts should carefully con­sider the question of exhaustion, particularly—but not exclusively—with respect to claims that do not involve matters of ‘universal concern.’” 246 246 Sarei, 550 F.3d at 831 (plurality opinion) (McKeown, J.). Other circuits have re­jected an exhaustion requirement in ATS cases. See Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1025 (7th Cir. 2011) (rejecting argument “that plaintiffs must exhaust their legal remedies in the nation in which the alleged violation of customary international law occurred”); Jean v. Dorélien, 431 F.3d 776, 781 (11th Cir. 2005) (“[T]he exhaustion re­quirement does not apply to the [ATS].”); see also Doe v. Exxon Mobil Corp., 654 F.3d 11, 27 (D.C. Cir. 2011) (declining to consider whether exhaustion is required under ATS), vacated on other grounds, 527 F. App’x 7 (D.C. Cir. 2013). ... Close A panel of the Ninth Circuit later applied the doctrine to an expropriation claim brought under the FSIA, though that decision was later vacated when the case was reheard en banc. 247 247 See Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1062 (9th Cir. 2009) (holding “prudential exhaustion applies equally to cases brought against foreign states (and their instrumentalities) under the FSIA”), vacated, 616 F.3d 1019 (9th Cir. 2010) (en banc). The en banc court did not reach the question of prudential exhaustion. See 616 F.3d at 1037 (“[W]e do not consider whether exhaustion may apply to the claims asserted in this case.”). ... Close The Seventh Circuit took up the prudential exhaustion baton in another FSIA expropriation case, basing its exhaustion requirement on “the comity between sovereign nations that lies close to the heart of most international law.” 248 248 Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 684 (7th Cir. 2012). ... Close On appeal from the district court’s decision upon remand, the Seventh Circuit clarified that exhaustion was required not as a substantive requirement of the in­ternational law on expropriation but as a procedural limitation on where international law claims could be brought. 249 249 See Fischer v. Magyar Államvasutak Zrt., 777 F.3d 847, 857 (7th Cir. 2015) (“Un­derstood correctly, however, the prior opinion imposed an exhaustion requirement that limits where plaintiffs may assert their international law claims. We did not hold that plain­tiffs failed to allege violations of international law in the first instance.”). In the ATS con­text, an exhaustion requirement might be justified as an exercise of the federal courts’ authority to shape the federal common law cause of action. See, e.g., Sosa, 542 U.S. at 732 (limiting ATS cause of action to violations of international law norms that are generally accepted and specifically defined); id. at 733 n.21 (mentioning exhaustion as a further potential limitation). But there is no similar basis of authority for imposing an exhaustion requirement on international law claims more generally. ... Close

A larger number of circuits have recognized a doctrine of abstention based on “international comity.” 250 250 See Mujica v. AirScan Inc., 771 F.3d 580, 598 (9th Cir. 2014) (“International comity is a doctrine of prudential abstention . . . .”); Perforaciones Exploración y Producción v. Marítimas Mexicanas, S.A. de C.V., 356 F. App’x 675, 681 (5th Cir. 2009) (“Dismissal of a suit on international comity grounds may sometimes be appropri­ate . . . .”); Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 467 (6th Cir. 2009) (applying Colorado River abstention to foreign proceedings); Royal & Sun All. Ins. Co. of Can. v. Century Int’l Arms, Inc., 466 F.3d 88, 95 (2d Cir. 2006) (recognizing possibility of “international comity abstention”); Gross v. German Found. Indus. Initiative, 456 F.3d 363, 393 (3d Cir. 2006) (recognizing possibility of abstaining “on international comity grounds”); Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1238 (11th Cir. 2004) (dismissing suit under “doctrine of international comity”); AAR Int’l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 518 (7th Cir. 2001) (“[W]e apply the same general principles [of Colorado River abstention] with respect to parallel proceedings in a foreign court in the interests of international comity.”); Al-Abood ex rel. Al-Abood v. El-Shamari, 217 F.3d 225, 232 (4th Cir. 2000) (applying Colorado River abstention to foreign proceedings). ... Close In most circuits, international comity abstention is simply an application to foreign proceedings of the federal–state abstention doctrine articulated in Colorado River, 251 251 See, e.g., Finova Cap. Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d 896, 898 (7th Cir. 1999) (“[I]n the interests of international comity, we apply the same general principles [of Colorado River abstention] with respect to parallel proceedings in a foreign court.”). ... Close which requires a showing of “exceptional” circumstances after consideration of several factors. 252 252 See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 818 (1976) (identifying following factors: (1) which court first assumed jurisdiction over the property, if any; (2) “inconvenience of the federal forum”; (3) “desirability of avoiding piecemeal litigation”; and (4) “order in which jurisdiction was obtained by the concurrent forums”); see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 23, 26 (1983) (advising district courts to consider additionally: (1) whether “federal law pro­vides the rule of decision on the merits”; and (2) whether nonfederal proceeding would adequately protect federal plaintiff’s rights). ... Close The circuits following Colorado River have held that internation­al comity abstention is appropriate only where parallel foreign proceed­ings are pending, 253 253 Answers in Genesis, 556 F.3d at 467 (“Colorado River instructed courts to consider several factors in determining whether to abstain in favor of a parallel proceeding in the courts of another sovereign.”); Royal & Sun All., 466 F.3d at 94 (“For two actions to be considered parallel, the parties in the actions need not be the same, but they must be sub­stantially the same, litigating substantially the same issues in both actions.”); Gross, 456 F.3d at 393–94 (rejecting international comity abstention absent pending foreign proceeding); AAR Int’l, 250 F.3d at 518 (“In evaluating the propriety of the district court’s decision to abstain under Colorado River, we must first determine whether the fed­eral and foreign proceedings are parallel.”); Al-Abood, 217 F.3d at 232 (“The threshold question in deciding whether Colorado River abstention is appropriate is whether there are parallel suits.”). ... Close and then only upon a showing of “exceptional” circumstances. 254 254 Answers in Genesis, 556 F.3d at 467 (“‘Abstention from the exercise of federal jurisdiction is the exception, not the rule.’” (quoting Colorado River, 424 U.S. at 813)); Royal & Sun All., 466 F.3d at 95 (“[C]ircumstances that routinely exist in connection with parallel litigation cannot reasonably be considered exceptional circumstances, and there­fore the mere existence of an adequate parallel action, by itself, does not justify the dismis­sal of a case on grounds of international comity abstention.”); AAR Int’l, 250 F.3d at 518 (stating district court “must consider the factors listed in Colorado River and its progeny and determine whether in light of those factors exceptional circumstances exist warrant­ing abstention”). In the bankruptcy context, U.S. courts have been more willing to abstain in favor of foreign proceedings because of express congressional authorization. See 11 U.S.C. § 1517 (2012) (authorizing order recognizing foreign bankruptcy proceeding); see also In re Vitro S.A.B. de C.V., 701 F.3d 1031, 1053 (5th Cir. 2012) (“Chapter 15 provides courts with broad, flexible rules to fashion relief appropriate for effectuating its objectives in accordance with comity.”); Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452, 458 (2d Cir. 1985) (“American courts have consistently recognized the interest of foreign courts in liquidating or winding up the affairs of their own domestic business entities.”). ... Close

The Eleventh Circuit, however, has articulated a broader version of the doctrine, which—contrary to Colorado River—does not require a showing of exceptional circumstances but instead considers: “(1) a proper level of respect for the acts of our fellow sovereign nations—a rather vague concept referred to in American jurisprudence as interna­tional comity; (2) fairness to litigants; and (3) efficient use of scarce judi­cial resources.” 255 255 Turner Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. 1994). ... Close In Ungaro-Benages v. Dresdner Bank AG, the Eleventh Circuit went further and upheld abstention on international comity grounds, despite the absence of parallel foreign proceedings, to support a foundation established by the United States and Germany to hear claims brought by victims of the Nazi regime. 256 256 See 379 F.3d 1227, 1240–41 (11th Cir. 2004) (“Although it may not be her forum of choice, the plaintiff should pursue her claim through the Foundation, which was established by the American and German governments to address exactly these types of claims from the Nazi era.”). The court called dismissal in the absence of a pending proceeding “prospective[]” comity. Id. at 1238. Ungaro-Benages also adapted the factors relevant to abstention. See id. (“Applied prospectively, federal courts evaluate several factors, including the strength of the United States’ interest in using a foreign forum, the strength of the foreign governments’ interests, and the ade­quacy of the alternative fo­rum.”). On almost identical facts, however, the Third Circuit rejected abstention. See Gross, 456 F.3d at 394 (“We remain skeptical of this broad applica­tion of the international comity doctrine, noting our ‘virtually unflagging obligation’ to exercise the jurisdiction granted to us . . . .” (quoting Colorado River, 424 U.S. at 817)). The Eleventh Circuit has recently characterized Ungaro-Benages as a one-time exception to the requirement of parallel foreign proceedings. See GDG Acquisitions, LLC v. Gov’t of Belize, 749 F.3d 1024, 1034 (11th Cir. 2014) (“To date, we have reserved prospective international comity absten­tion for rare (indeed often calamitous) cases in which powerful diplomatic interests of the United States and foreign sovereigns aligned in supporting dismissal.”); see also Perforaciones Exploración y Producción v. Marítimas Mexicanas, S.A. de C.V., 356 F. App’x 675, 681 (5th Cir. 2009) (noting possibility of abstention “when there is litigation pending in a foreign forum or, even absent such litigation,” but finding abstention inappropriate in that case). ... Close Most recently, in Mujica
v. AirScan Inc., a divided panel of the Ninth Circuit dismissed state-law claims in a human rights suit filed against two U.S. corporations on grounds of international comity despite the absence of parallel foreign proceed­ings. 257 257 See 771 F.3d 580, 615 (9th Cir. 2014) (“[W]e conclude that all of the claims before us are nonjusticiable under the doctrine of international comity.”). ... Close The court applied the Eleventh Circuit’s test from Ungaro-Benages, engrafting onto it the reasonableness factors for prescriptive comity artic­ulated in section 403 of Restatement (Third) of the Foreign Relations Law and giving significant weight to the view of the U.S. executive branch that the case should be dismissed. 258 258 Id. at 603–15. Judge Zilly dissented from this part of the opinion, finding the doctrine inapplicable in the absence of a pending foreign proceeding. See id. at 622 (Zilly, J., concurring in part and dissenting in part) (“I would join the Third Circuit in declining to follow the Eleventh Circuit down the ‘prospective’ comity path.”). ... Close

Sometimes, U.S. courts are asked to address the possibility of parallel foreign proceedings not by dismissing the U.S. suit but by enjoining the foreign proceeding. Courts in the United States are quite reluctant to do this, and frequently cite international comity as a reason to exercise re­straint. As the Second Circuit has observed, “principles of comity counsel that injunctions restraining foreign litigation be ‘used sparingly’ and ‘granted only with care and great restraint.’” 259 259 Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 652 (2d Cir. 2004) (quoting China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 36 (2d Cir. 1987)); see also E. & J. Gallo Winery v. Andina Licores S.A., 446 F.3d 984, 989 (9th Cir. 2006) (“‘A federal district court with jurisdiction over the parties has the power to enjoin them from proceeding with an action in the courts of a foreign country, although the power should be used sparingly. The issue is not one of jurisdiction, but one of comity.’” (quoting Seattle Totems Hockey Club, Inc. v. Nat’l Hockey League, 652 F.2d 852, 855 (9th Cir. 1981))); Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 17 (1st Cir. 2004) (noting decision whether to grant antisuit injunction “must take account of considerations of international comity”); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 366 (5th Cir. 2003) (“When a preliminary injunction takes the form of a foreign antisuit injunction, we are required to balance domestic judicial interests against concerns of international comity.”). ... Close

International comity has even influenced some of the Supreme Court’s rulings on personal jurisdiction under the Due Process Clause. As a gen­eral matter, “[d]ue process limits on the State’s adjudicative authority principally protect the liberty of the nonresident defendant.” 260 260 Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014). ... Close But the Court has recently relied expressly on “international comity” to support limits on general jurisdiction. In Daimler AG v. Bauman, the Supreme Court limited general jurisdiction to instances in which the defendant’s contacts with the forum state are so continuous and systematic as to ren­der it “‘essentially at home’” there. 261 261 134 S. Ct. 746, 761 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)). ... Close But the Court also faulted the Ninth Circuit for ignoring “the risks to international comity its expansive view of general jurisdiction posed.” 262 262 Id. at 763. ... Close Justice Ginsburg noted that general ju­risdiction under the Brussels I Regulation is limited to the place where the defendant is “domiciled” and that expansive U.S. views of general jurisdiction had impeded the negotiation of international agreements on jurisdiction and judgments. 263 263 Id. ... Close In light of all this, the Court concluded: “Considerations of international rapport thus reinforce our determina­tion that subjecting Daimler to the general jurisdiction of courts in California would not accord with the ‘fair play and substantial justice’ due process demands.” 264 264 Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). ... Close The Supreme Court has also looked to interna­tional comity to limit the exercise of specific jurisdiction under the head­ing of “reasonableness.” When determining whether an exercise of per­sonal jurisdiction is “reasonable” under the Due Process Clause, the Supreme Court has expressly required lower courts “to consider the pro­cedural and substantive policies of other nations whose interests are af­fected by the assertion of jurisdiction.” 265 265 Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 115 (1987). It is worth noting that three of the Supreme Court’s most recent personal jurisdiction cases have involved non-U.S. defendants. See Daimler, 134 S. Ct. at 750 (considering personal jurisdiction over “claim brought by foreign plaintiffs against a foreign defendant based on events occurring entirely outside the United States”); Goodyear, 131 S. Ct. at 2850 (consid­ering personal jurisdiction in case involving “bus accident outside Paris”); J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2785 (2011) (plurality opinion) (Kennedy, J.) (con­sidering personal jurisdiction over “a British manufacturer of scrap metal ma­chines”). Looking to principles of international comity in such cases certainly makes more sense than looking to principles of federalism. See, e.g., id. at 2789–90 (plurality opinion) (Kennedy, J.) (invoking “unique genius of our Constitution” in establishing “two orders of government”). ... Close

Finally, even when American courts have personal jurisdiction and decide to exercise it, they sometimes employ adjudicative comity as a principle of restraint to moderate that exercise. In the Aérospatiale case, for example, the Supreme Court had to decide whether to require first resort to the Hague Evidence Convention for the gathering of evidence abroad. 266 266 Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 541–42 (1987). ... Close The majority held that “the concept of international comity re­quires . . . particularized analysis of the respective interests of the foreign nation and the requesting nation.” 267 267 Id. at 543–44. The Court turned to comity after concluding that the treaty itself did not displace U.S. discovery rules. See id. at 529–32 (considering whether treaty provided exclusive means for obtaining evidence located in another treaty party). For a more detailed discussion of the relationship between international comity and interna­tional law, see infra Part III. ... Close

In summary, adjudicative comity operates in American law through limits on personal jurisdiction as well as doctrines like forum non con­veniens (and others of more doubtful status) that allow courts to dismiss cases over which they have jurisdiction. Adjudicative comity also limits district courts in granting antisuit injunctions and ordering the discovery of information located abroad. Each of these doctrines defers to foreign courts by restraining the exercise of U.S. courts’ jurisdiction.

C. Sovereign Party Comity

Sovereign party comity is deference to foreign government actors as litigants in U.S. courts. 268 268 For a discussion of the Supreme Court’s treatment of amicus briefs filed by for­eign governments, see Kristen E. Eichensehr, Foreign Sovereigns as Friends of the Court, 102 Va. L. Rev. (forthcoming 2016) (manuscript at 33–64) (on file with the Columbia Law Review) (examining reasons for Court’s deference to views of foreign sovereigns who file amicus briefs). ... Close Although it is generally omitted from scholarly discussions of international comity, 269 269 See supra note 37 (surveying international comity literature). ... Close the Supreme Court has articulated comity-based rules to determine when foreign governments may bring suit as plaintiffs in U.S. courts, and Congress has adopted comity-based rules to determine when sovereign immunity shields them from suit as defendants. As with prescriptive comity and adjudicative comity, sover­eign party comity operates in American law both as a principle of recog­nition and as a principle of restraint.

1. As a Principle of Recognition. — The Supreme Court has held that “[u]nder principles of comity governing this country’s relations with other nations, sovereign states are allowed to sue in the courts of the United States.” 270 270 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408–09 (1964); see also The Sapphire, 78 U.S. (11 Wall.) 164, 167 (1870) (“To deny him this privilege would manifest a want of comity and friendly feeling.”). ... Close The Court has recognized exceptions for countries at war with the United States or not recognized by the United States. 271 271 See Sabbatino, 376 U.S. at 409 (“[T]he privilege of suit has been denied only to governments at war with the United States . . . or to those not recognized by this coun­try . . . .”). ... Close But neither the existence of unfriendly relations nor even the severing of dip­lomatic relations will be sufficient to deny this privilege. 272 272 Id. at 410–11 (rejecting argument that “unfriendliness,” including severance of diplomatic relations, should lead to denial of privilege). The Court has also expressly re­jected reciprocity as a condition to a foreign government’s privilege of bringing suit in U.S. courts. See id. at 412 (“There are good reasons for declining to extend the principle [of reciprocity] to the question of standing of sovereign states to sue.”). ... Close As the Court restated the rule most recently, “governments recognized by the United States and at peace with us are entitled to access to our courts.” 273 273 Pfizer, Inc. v. Gov’t of India, 434 U.S. 308, 319–20 (1978). The recognition of foreign governments is controlled by the executive branch. See Guar. Tr. Co. of N.Y. v. United States, 304 U.S. 126, 137 (1938) (“What government is to be regarded here as rep­resentative of a foreign sovereign state is a political rather than a judicial question, and is to be determined by the political department of the government.”). Congress has the con­stitutional power to declare war. See U.S. Const. art. I, § 8, cl. 11 (“The Congress shall have power . . . [t]o declare war . . . .”). For discussion of the extent to which the executive branch may control the access of foreign governments to U.S. courts, see infra note 371 and accompanying text. ... Close

2. As a Principle of Restraint. — Sovereign party comity operates as a principle of restraint in American law through the doctrines of foreign state immunity and foreign official immunity, both of which fall under the more general heading of foreign sovereign immunity. 274 274 See also infra Part III (discussing extent to which doctrines of foreign state im­munity and foreign official immunity also reflect international law). ... Close The Supreme Court has consistently characterized foreign sovereign immunity as a matter of comity. 275 275 Some of these references may be intended simply to emphasize that foreign sov­ereign immunity is not required by the Constitution. See, e.g., Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983) (“As The Schooner Exchange made clear, however, for­eign sovereign immunity is a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution.”); First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765 (1972) (plurality opinion) (Rehnquist, J.) (“[T]he doctrine of immunity for foreign sovereigns[] has its roots, not in the Constitution, but in the notion of comity between independent sovereigns.”); see also Republic of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250, 2255 (2014) (“Foreign sovereign immunity is and always has been, ‘a matter of grace and comity . . . .’” (quoting Verlinden, 461 U.S. at 486)). But other references emphasize comity as the normative justification for sovereign immunity. See, e.g., Republic of the Philippines v. Pimentel, 553 U.S. 851, 866 (2008) (“Giving full effect to sovereign immunity promotes the comity interests that have contributed to the develop­ment of the immunity doctrine.”); Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003) (“Foreign sovereign immunity . . . is not meant to avoid chilling foreign states or their in­strumentalities in the conduct of their business but to give foreign states and their instru­mentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns.”); The Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 353 (1822) (“[Schooner Exchange] stands upon principles of public comity and conven­ience.”). Other opinions accurately describe comity as the historical basis for sovereign im­munity. See, e.g., Samantar v. Yousuf, 130 S. Ct. 2278, 2284 (2010) (“[Schooner Exchange] was interpreted as extending virtually absolute immunity to foreign sovereigns as ‘a matter of grace and comity.’” (quoting Verlinden, 461 U.S. at 486)); Republic of Austria v. Altmann, 541 U.S. 677, 688 (2004) (“[Schooner Exchange explained] that as a matter of comity, members of the international community had implicitly agreed to waive the exercise of jurisdiction over other sovereigns in certain classes of cases, such as those involving foreign ministers or the person of the sovereign . . . .”); see also supra notes 107–115 (discussing original understanding of sovereign immunity as comity). The Court’s char­ac­terization of sovereign immunity as comity does not preclude the possibility that some measure of immunity is required by international law. See infra Part III (explaining rela­tionship between international comity and international law). But it does suggest that sov­ereign immunity in the United States cannot be understood exclusively in international law terms. ... Close The United States has codified the rules governing foreign state immunity in the FSIA, which provides that foreign states, as well as their agencies and instrumentalities, are immune from suit in both federal and state courts unless an exception to that immunity ap­plies. 276 276 28 U.S.C. §§ 1604–1607 (2012). ... Close One might think of the FSIA as an exercise of international com­ity by Congress, but it is meant to be applied by the courts. Indeed, one of the principal reasons for the FSIA was to shift determinations of for­eign state immunity from the executive branch to the courts. 277 277 See infra notes 404–410 and accompanying text (noting purpose of FSIA to trans­fer foreign state immunity determinations to courts). ... Close In this sense, the FSIA is no different from state statutes governing the recogni­tion of foreign judgments, which similarly codify rules of international comity for courts to apply. 278 278 The Supreme Court has left open the question of whether the executive branch is entitled to deference in affording immunity to particular defendants in cases governed by the FSIA. See Altmann, 541 U.S. at 702 (“[S]hould the State Department choose to ex­press its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.”); infra notes 386–388 and accompanying text (discussing Altmann). ... Close

The FSIA did not codify the immunities of foreign officials. 279 279 See Samantar, 130 S. Ct. at 2292 (concluding “FSIA does not govern petitioner’s claim of [foreign official] immunity”). ... Close Rules for the immunities of diplomatic agents and consuls are set forth in the Vienna Convention on Diplomatic Relations 280 280 Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95. ... Close and the Vienna Convention on Consular Relations. 281 281 Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. ... Close But the immunities of other foreign govern­ment officials from suit in U.S. courts are otherwise governed by federal common law. 282 282 See Samantar, 130 S. Ct. at 2292 (noting immunity of foreign official was “properly governed by the common law”). The Supreme Court did not expressly hold that the common law governing immunity was federal common law, but that is how the opin­ion has been read. See, e.g., Curtis A. Bradley & Laurence R. Helfer, International Law and the U.S. Common Law of Foreign Official Immunity, 2010 Sup. Ct. Rev. 213, 254 (ac­knowledging “Court’s holding in Samantar that federal common law now controls these issues”). ... Close Some foreign officials are immune from suit based on their status. Sitting heads of state, heads of government, and foreign min­isters are entitled to status-based immunity from suits based on any act—official or unofficial—but only while they hold those offices. 283 283 Chimène I. Keitner, The Common Law of Foreign Official Immunity, 14 Green Bag 2d 61, 63–64 (2010) (discussing head of state immunity as status-based immunity). ... Close Other foreign officials, as well as former foreign officials, may be entitled to conduct-based immunity. Conduct-based immunity differs from status-based immunity in two respects: (1) it extends only to suits based on offi­cial acts; and (2) it lasts even after the foreign official leaves office. 284 284 See id. at 64–71 (discussing conduct-based immunity). ... Close Since the Supreme Court’s 2010 decision in Samantar, the executive branch has claimed authority to make determinations with respect to official immun­ity that are binding on the courts. 285 285 See infra notes 382–385 and accompanying text (discussing deference to execu­tive branch determinations of immunity). ... Close

Thus, sovereign party comity operates in American law both as a principle of recognition and as a principle of restraint. As a principle of recognition, it allows foreign governments recognized by the United States, and not at war with it, to bring suit in U.S. courts. As a principle of re­straint, it shields foreign governments and foreign officials from certain kinds of suits in U.S. courts. In both of these aspects, sovereign party comity defers to foreign government actors as litigants in U.S. courts.

D. Summary

This Article defines international comity as deference to foreign gov­ernment actors that is not required by international law but is incorpo­rated in domestic law. Part II has surveyed the variety of ways in which international comity has been incorporated into doctrines of U.S. domes­tic law and has categorized those doctrines based on the actors to whom deference is given. Doctrines that defer to foreign lawmakers, like the conflict of laws, the act of state doctrine, and the presumption against extraterritoriality, are manifestations of prescriptive comity. Doctrines that defer to foreign courts, like the recognition of foreign judgments, the doctrine of forum non conveniens, and the limits on personal juris­diction and discovery, are expressions of adjudicative comity. And doc­trines that defer to foreign government actors as litigants, like a foreign government’s privilege of bringing suit as a plaintiff and its immunity from suit as a defendant, are forms of sovereign party comity.

In each category, deference may take the form of recognition or re­straint. But the distinction should not be overstated. There is obviously an element of restraint in recognition and an element of recognition in restraint. When an American court recognizes a foreign judgment, it re­strains the exercise of its own authority to decide the merits of that case. When an American court enforces foreign law, it not only recognizes that a foreign state has jurisdiction to prescribe, but also restrains the pre­scriptive jurisdiction of the forum. Similarly, when an American court uses international comity as a principle of restraint, it is often because that court recognizes a foreign court as the more appropriate forum, a foreign lawmaker as a more appropriate source of rules, or a foreign gov­ernment as a sovereign coequal with the United States. 286 286 In some areas, the connection between recognition and restraint is very close. The doctrine of foreign state compulsion, for example, restrains the application of U.S. law but depends on a prior recognition that foreign law requires the conduct that U.S. law would prohibit. See supra notes 198–203 and accompanying text (discussing foreign state compulsion). Under 28 U.S.C. § 1782 (2012), U.S. courts may recognize foreign proceed­ings by providing judicial assistance with discovery, but courts will exercise restraint when discovery might in fact hinder the foreign proceeding. See supra notes 224–227 and ac­companying text (discussing 28 U.S.C. § 1782). In the context of sovereign party comity, by contrast, recognition may preclude restraint. The Supreme Court has held that a for­eign government may not be recognized as a plaintiff in U.S. courts and simultaneously claim immunity from suit. See Guar. Tr. Co. of N.Y. v. United States, 304 U.S. 126, 134 (1938) (“By voluntarily appearing in the role of suitor it abandons its immunity from suit and subjects itself to the procedure and rules of decision governing the forum which it has sought.”); see also 28 U.S.C. § 1607 (denying foreign government immunity from counterclaims). ... Close Still, the prin­ciples of recognition and restraint seem useful for grouping the interna­tional comity doctrines within each category.

Having focused in Part II on how the principle of international com­ity is incorporated in U.S. domestic law, this Article now turns in Part III to consider comity’s relationship with international law.

III. International Comity and International Law

The relationship between international comity and international law is often misunderstood. Justice Scalia, in particular, seems to treat them as interchangeable. 287 287 See, e.g., Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2887 (2010) (Scalia, J.) (equating “international comity” with “customary international law”); Hartford Fire Ins. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (treating “international comity” and “international law” interchangeably); W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 404 (1990) (Scalia, J.) (“We once viewed the [act of state] doc­trine as an expression of international law, resting upon ‘the highest considerations of in­ternational comity and expediency.’” (quoting Oetjen v. Cent. Leather Co., 246 U.S. 297, 303–04 (1918))). ... Close Justice Breyer has also sometimes asserted that a rule of prescriptive comity “reflects principles of customary international law.” 288 288 F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (Breyer, J.). ... Close But understanding the difference is critical to understanding how international comity works in American law.

International law binds the United States on the international plane, 289 289 Restatement (Third) of the Foreign Relations Law of the United States, pt. I, ch. 1, intro. note at 17 (Am. Law Inst. 1987) (“States . . . treat it as law, consider themselves bound by it, attend to it with a sense of legal obligation and with concern for the conse­quence of violation.”). ... Close and the United States is responsible to other states for violating it. 290 290 Rep. of the Int’l Law Comm’n to the General Assembly, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, U.N. GAOR, 53d Sess., Supp. No. 10, art. 1, U.N. Doc. A/56/10, at 32 (2001), reprinted in [2001] 2 Y.B. Int’l L. Comm’n 20, 26, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) (“Every internationally wrongful act of a State entails the international responsibility of that State.”); Restatement (Third) of the Foreign Relations Law of the United States § 206 cmt. e (“A state is responsible to other states, and to some extent to international organiza­tions and private persons, for breach of its duties under international law or agreement.”). ... Close On the domestic plane, it is generally accepted today that Congress may pass statutes that violate customary international law or U.S. treaty obliga­tions. 291 291 See Restatement (Third) of the Foreign Relations Law of the United States § 115(1)(a) (noting act of Congress may “supersede[] an earlier rule of international law or a provision of an international agreement as law of the United States”). Such a statute is effective as domestic law but does not relieve the United States of responsibility for the in­ternational law violation. See id. § 115(1)(b) (“That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation.”). ... Close But international law may bind the courts 292 292 See The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”); The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) (Marshall, C.J.) (“Till such an act [of Congress] be passed, the Court is bound by the law of nations which is a part of the law of the land.”). ... Close and the President. 293 293 See William S. Dodge, After Sosa: The Future of Customary International Law in the United States, 17 Willamette J. Int’l L. & Disp. Resol. 21, 34–38 (2009) (arguing President is constitutionally bound to obey international law under Take Care Clause). ... Close International comity, on the other hand, does not bind the United States on the international plane or give rise to international responsibility. The courts and Congress are free to fashion rules of international comity as they wish, and—assuming those rules give the executive branch discre­tion—the President is free to deny international comity in a particular case.

From the beginning, international comity has been understood to be a matter for each nation’s discretion. Huber’s third maxim stated that a government would give effect to foreign laws within its territory only “so far as they do not cause prejudice to the power or rights of such govern­ment or of its subjects.” 294 294 Huber, supra note 74, at 164. ... Close Story described comity as an “imperfect obliga­tion—like that of beneficence, humanity, and charity” and added that “[e]very nation must be the final judge for itself, not only of the nature and extent of the duty, but of the occasions on which its exercise may be justly demanded.” 295 295 Story, supra note 54, § 33, at 38. ... Close As noted above, in the late eighteenth and early nineteenth centuries, some rules of the law of nations were understood to be optional and thus more akin to comity. 296 296 See supra note 108 (explaining early American understanding of law of nations). ... Close But under the modern view of customary international law—“a general and consistent practice of states followed by them from a sense of legal obligation” 297 297 Restatement (Third) of the Foreign Relations Law of the United States § 102(2) (Am. Law Inst. 1987). ... Close —comity is excluded by definition. A rule that makes compliance discretionary can­not be followed from a sense of legal obligation.

In some areas of foreign relations law, rules of international comity are layered on top of rules of international law. Under customary inter­national law, for example, the United States may apply its law extraterri­torially only if it has a basis for jurisdiction to prescribe. 298 298 See id. §§ 402, 404 (restating customary international law bases for jurisdiction to prescribe). ... Close But courts of­ten restrain the geographic scope of U.S. law beyond what international law requires by applying a presumption against extraterritoriality—a can­on of interpretation based in part on international comity and not re­quired by international law. 299 299 See supra notes 186–191 and accompanying text (discussing presumption against extraterritoriality). ... Close The same is true for questions of foreign state immunity and foreign official immunity. International law requires some immunities, 300 300 See, e.g., Jurisdictional Immunities of the State (Ger. v. It.), Judgment, 2012 I.C.J. Rep. 99, ¶ 78 (Feb. 3) (discussing state immunity for military activities during armed con­flict); Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment, 2002 I.C.J. Rep. 3, ¶ 51 (Feb. 14) (discussing head-of-state immunity). ... Close but domestic law is free to go beyond these mini­mum requirements and extend greater immunity as a matter of comity. 301 301 See, e.g., Estate of Kazemi v. Islamic Republic of Iran, [2014] 3 S.C.R. 176, 194 (Can.) (noting Canada’s State Immunity Act “has chosen to embrace principles of comity and state sovereignty over the interests of individuals wishing to sue a foreign state in Canadian courts for acts of torture committed abroad”); see also William S. Dodge, Is Torture an “Official Act”? Reflections on Jones v. United Kingdom, Opinio Juris (Jan. 15, 2014, 1:46 am), http://opiniojuris.org/2014/01/15/guest-post-dodge-torture-official-act-reflections-jones-v-united-kingdom/ [http://perma.cc/Q755-J42H] (arguing customary international law does not require nations to treat torture as official act for purposes of conduct-based immunity). ... Close In these areas it makes sense to think of an international law “core” and a comity “penumbra.” 302 302 Another example is discovery under the Hague Evidence Convention. See Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 529–44 (1987) (holding Hague Evidence Convention did not preclude use of U.S. discov­ery rules and then supplementing treaty with doctrine of comity); supra note 266–267 (dis­cuss­ing Aérospatiale in more detail). ... Close

In other areas, there is no international law core, and the rules me­diating the relationship of the U.S. legal system with other countries are entirely rules of international comity. 303 303 There are treaties and supranational regulations governing the jurisdiction of courts, the enforcement of foreign judgments, and the question of applicable law. See, e.g., Regulation No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast), 2012 O.J. (L 351) 1; Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations, 2008 O.J. (L 177) 6; Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2007 O.J. (L 339) 3. But the United States is not a party to any such treaty or supranational regulation. ... Close No rule of customary interna­tional law requires the recognition of foreign law, 304 304 See Restatement (Second) of the Foreign Relations Law of the United States § 9 (Am. Law Inst. 1965) (“A state is not required by international law to give effect to a rule prescribed or enforced by another state . . . , so long as its refusal to give it effect is not arbitrary according to the rules of the conflict of laws of states that have reasonably devel­oped legal systems.”). ... Close the act of state doc­trine, 305 305 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421 (1964) (“That inter­national law does not require application of the [act of state] doctrine is evidenced by the practice of nations.”). ... Close or foreign state compulsion. 306 306 See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction § 222, cmt. a (Am. Law Inst., Preliminary Draft No. 3, 2015) (“There is no general doctrine of international law that requires a sovereign to excuse compliance with its law because of conflict with the law of another state.”). ... Close Customary international law does not require the recognition and enforcement of foreign judgments. 307 307 See Restatement (Third) of the Foreign Relations Law of the United States, ch. 8, intro. note at 591 (Am. Law Inst. 1987) (“[T]here are no agreed principles governing re­cognition and enforcement of foreign judgments, except that no state recognizes or en­forces the judgment of another state rendered without jurisdiction over the judgment debtor.”). ... Close Many states exercise jurisdiction to adjudicate on bases that other states find exorbitant, 308 308 For example, these include personal jurisdiction based on service of process while the defendant is temporarily present in the forum, personal jurisdiction based on the na­tionality or domicile of the plaintiff, and personal jurisdiction based on the presence of property in the forum. See Kevin M. Clermont & John R.B. Palmer, Exorbitant Jurisdiction, 58 Me. L. Rev. 474, 477–504 (2006) (discussing bases of personal jurisdiction considered exorbitant). For a list of exorbitant bases permitted under the laws of the E.U. Member States but prohibited under the Brussels I Regulation (Recast), see The Information Referring to Article 76 of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2015 O.J. (C 4) 2, 2–3; see also Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, annex I, 2007 O.J. (L 339) 3, 31–32 (listing exorbitant bases of juris­diction prohibited by Lugano Convention). ... Close but no customary international law rule prohibiting the exercise of such jurisdictional bases has emerged. 309 309 See Lori Fisler Damrosch et al., International Law 816 (5th ed. 2009) (“While these bases have been characterized as exorbitant or extraordinary, they have, thus far, not been asserted, on authoritative grounds, to be violative of international law.”); Clermont & Palmer, supra note 308, at 476 (“[E]xorbitant jurisdiction is best understood less as an existing rule than as a normative statement about the appropriate scope of international jurisdiction.”). ... Close And no rule of inter­national law requires one country to allow the government of another country to bring suit in its courts. 310 310 See Crawford, supra note 24, at 157 (noting while some countries allow recog­nized governments to sue in local courts, “great caution is needed in using municipal cases to establish propositions about recognition in general international law”). ... Close

It is worth noting that the boundaries between international law and international comity may shift over time. The Supreme Court recognized in The Paquete Habana that “what originally may have rested in custom or comity, courtesy or concession” may “grow, by the general assent of civi­lized nations, into a settled rule of international law.” 311 311 175 U.S. 677, 694 (1900); see also Crawford, supra note 24, at 24 (“[P]articular rules of comity, maintained consistently without reservation, may develop into rules of cus­tomary law.”). ... Close Some rules of foreign sovereign immunity may fit that description. 312 312 See Crawford, supra note 24, at 24 n.18 (giving example of diplomatic tax exemptions). ... Close It is also possible for international law to shrink and leave gaps for comity to fill. This is what happened with jurisdiction to prescribe. As the old, territorial con­ception of jurisdiction under international law receded, a comity-based presumption against extraterritoriality came forward to limit the territo­rial reach of American law. 313 313 See supra notes 124–126 and accompanying text (describing shift in Supreme Court’s approach). ... Close

International law and international comity both mediate the rela­tionship between the U.S. legal system and other nations, but they are fundamentally different. International law binds the United States and gives rise to international responsibility. International comity is discre­tionary, allowing the United States to decide for itself how much recogni­tion or restraint to afford in deference to foreign government actors. Some have asserted that this discretion must be exercised on a case-by-case basis and that the executive branch is more competent to apply the doctrines of international comity. Part IV challenges both of these myths.

IV. Two Myths of International Comity

With a proper definition of international comity and an understand­ing of the full range of American doctrines manifesting that principle, this Article now turns to examine critically some of the conventional wis­dom. Two assertions about international comity stand out: (1) that com­ity must be governed by standards rather than rules; and (2) that comity determinations are best left to the executive branch. The first has long made comity an object of criticism. 314 314 See infra notes 316–321 and accompanying text (discussing criticism of comity for being discretionary). ... Close The second has been strongly ad­vanced by Posner and Sunstein in recent scholarship. 315 315 See infra notes 361–362, 393–395 and accompanying text (discussing Posner and Sunstein’s argument). ... Close

Neither myth withstands scrutiny. A review of the international com­ity doctrines in American law shows that many take the form of rules ra­ther than standards—from foreign sovereign immunity, to the act of state doctrine, to the presumption against extraterritoriality. Even when adju­dicative comity operates as a principle of restraint—the area in which international comity doctrines like forum non conveniens most frequent­ly take the form of standards—more rule-like alternatives exist.

With respect to the second myth, it is important to recognize that the proper role of the Executive depends on the comity doctrine at issue. No one would assert that the executive branch, rather than a court, should decide whether a foreign judgment should be recognized or whether a particular case should be dismissed on grounds of forum non conven­iens. On the other hand, the President clearly has constitutional author­ity to determine particular facts—like recognition of a foreign govern­ment—on which some comity doctrines turn. Agency interpretations of the geographic scope of statutes should also be entitled to Chevron def­erence. Most problematic are international comity doctrines that would allow the Executive to dictate the outcome of particular cases, like the Bernstein exception to the act of state doctrine or the authority that the executive branch currently claims to make binding determinations with respect to the conduct-based immunity of foreign officials. Posner and Sunstein favor such deference, while this Article argues that it not only compromises judicial independence but also harms U.S. foreign rela­tions by putting the Executive in the uncomfortable position of having to make decisions that may displease foreign governments.

A. Rules and Standards

The myth that rules of international comity are impossible goes back to Justice Story. In his 1834 treatise on conflicts, Story endorsed the view that “‘comity is, and ever must be uncertain’” and “‘must necessarily de­pend on a variety of circumstances, which cannot be reduced to [sic] any certain rule.’” 316 316 Story, supra note 54, § 28, at 34 (quoting Saul v. His Creditors, 5 Mart. (n.s.) 665, 678 (La. 1827) (Porter, J.)) (misquotation). ... Close It is precisely this discretionary aspect of comity that at­tracted the most criticism over the years. Even in Story’s day, Samuel Livermore called the comity of nations “a phrase, which is grating to the ear, when it proceeds from a court of justice.” 317 317 Samuel Livermore, Dissertations on the Questions Which Arise from the Contrariety of the Positive Laws of Different States and Nations 26 (1828). ... Close Judge Cardozo wrote in Loucks v. Standard Oil Co. of New York that “[t]he misleading word ‘comity’ has been responsible for much of the trouble” in denying the enforcement of foreign law. 318 318 120 N.E. 198, 201 (N.Y. 1918). ... Close “It has been fertile in suggesting a discretion unregu­lated by general principles.” 319 319 Id. at 201–02. ... Close Similarly, Joseph Beale observed that “[t]he doctrine seems really to mean only that in certain cases the sovereign is not prevented by any principle of international law, but only by his own choice, from establishing any rule he pleases for the conflict of laws.” 320 320 3 Joseph H. Beale, A Treatise on the Conflict of Laws § 71, at 1965 (1935); see also A.V. Dicey, A Digest of the Law of England with Reference to the Conflict of Laws 10 (1896) (describing comity as “singular specimen of confusion of thought produced by lax­ity of language”). ... Close Modern courts and commentators have repeated the criticism. 321 321 See, e.g., JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir. 2005) (“The doctrine has never been well-defined, leading one scholar to pronounce it ‘an amorphous never-never land whose borders are marked by fuzzy lines of politics, courtesy, and good faith.’” (quoting Harold G. Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 Am. J. Int’l L. 280, 281 (1982))); see also supra notes 13–20 and accompanying text (discussing modern complaints about comity). ... Close

Whether any particular legal doctrine should take the form of a rule or a standard is a perennial question. 322 322 The literature is voluminous. See, e.g., Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557 (1992); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976); Pierre Schlag, Rules and Standards, 33 UCLA L. Rev. 379 (1985); Kathleen M. Sullivan, The Supreme Court, 1991 Term—Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22 (1992). ... Close Rules bind a court to decide a case in a particular way based upon a limited number of triggering facts, while standards invite a court to apply the background policy directly af­ter considering the full range of facts. The distinction between rules and standards is a continuum, not a divide, and many doctrines combine as­pects of rules and standards. 323 323 See Sullivan, supra note 322, at 61 (“A rule may be corrupted by exceptions to the point where it resembles a standard; likewise, a standard may attach such fixed weights to the multiple factors it considers that it resembles a rule. All kinds of hybrid combina­tions are possible.”). ... Close But reviewing the doctrines of interna­tional comity shows that many of them are more rule-like than standard-like.

Take the doctrines of sovereign party comity, for example. The Supreme Court has adopted a rule that any government recognized by the United States, and not at war with it, may bring suit in U.S. courts. 324 324 Pfizer, Inc. v. Gov’t of India, 434 U.S. 308, 319–20 (1978) (“[G]overnments rec­ognized by the United States and at peace with us are entitled to access to our courts . . . .”). ... Close This rule turns on two easily ascertainable facts. In Sabbatino, the Court expressly rejected an alternative standard of friendly relations: “This Court would hardly be competent to undertake assessments of varying degrees of friend­liness or its absence, and, lacking some definite touchstone for determi­nation, we are constrained to consider any relationship, short of war, with a recognized sovereign power as embracing the privilege of resorting to United States courts.” 325 325 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964). ... Close

The doctrine of foreign state immunity, codified in the FSIA, is also quite rule-like. The FSIA provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States” unless an enumerated exception to immunity applies. 326 326 28 U.S.C. § 1604 (2012). ... Close There are excep­tions for express waivers of immunity, suits based on a commercial activ­ity, expropriation in violation of international law, property in the United States, torts in the United States, agreements to arbitrate, and maritime liens, 327 327 Id. § 1605(a)–(b). ... Close as well as for state-sponsored terrorism 328 328 Id. § 1605A. ... Close and counterclaims. 329 329 Id. § 1607. ... Close Each directs the court to determine particular relevant facts. A court has no discretion to decide on a case-by-case basis whether the purposes of foreign state immunity would be served by its application. The same is largely true of foreign official immunity. Under the doctrine of head-of-state immunity, immunity from suit follows automatically from the execu­tive branch’s recognition of a particular person as a foreign head of state, head of government, or foreign minister. 330 330 See Yousuf v. Samantar, 699 F.3d 763, 772 (4th Cir. 2012) (“[H]ead-of-state im­munity involves ‘a formal act of recognition,’ that is ‘a quintessentially executive function’ for which absolute deference is proper.” (quoting Peter B. Rutledge, Samantar, Official Immunity and Federal Common Law, 15 Lewis & Clark L. Rev. 589, 606 (2011))). ... Close Conduct-based immunity is more complicated and still developing, but the courts of appeals have so far adopted rule-like approaches, with the Fourth Circuit holding that violations of jus cogens norms can never be “official acts,” 331 331 Id. at 776 (“[A]s a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign.”). ... Close and the Second Circuit holding that the only fact that matters is the State Department’s determination of immunity. 332 332 See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. 2009) (“[I]n the common-law con­text, we defer to the Executive’s determination of the scope of immunity.”); see also Rosenberg v. Pasha, 577 F. App’x 22, 23–24 (2d Cir. 2014) (reaffirming Matar). ... Close

In the area of prescriptive comity, one finds both rules and stand­ards. Conflicts methodologies vary from state to state. Those that follow the first Restatement of Conflicts are fairly rule-like, while those that fol­low the Restatement (Second) partake more of standards. 333 333 See Adam I. Muchmore, Jurisdictional Standards (and Rules), 46 Vand. J. Transnat’l L. 171, 183–87 (2013) (characterizing First Restatement as based on rules and Second Restatement as mix of rules and standards). ... Close Although the Restatement (Second) adopts a “most significant relationship” stand­ard, 334 334 See, e.g., Restatement (Second) of Conflicts of Laws § 145 (Am. Law Inst. 1971) (articulating standard for torts); id. § 188 (articulating standard for contracts). ... Close it also articulates a number of presumptions that give the applica­tion of that standard a more rule-like quality. Thus, in personal injury suits, “the local law of the state where the injury occurred” generally ap­plies, 335 335 Id. § 146. ... Close while in contract suits, “[i]f the place of negotiating the contract and the place of performance are in the same state, the local law of that state will usu­ally be applied.” 336 336 Id. § 188(3). ... Close The discretion afforded under the public policy ex­ception may also make conflicts approaches seem like standards, but this discretion is cabined by the requirement that the forum’s public policy be a “strong” one. 337 337 Id. § 90. ... Close In sum, the conflict of laws in the United States today is governed by a mix of rules and standards. The federal act of state doc­trine, on the other hand, is quite rule-like. In Kirkpatrick, the Supreme Court expressly rejected a standard of embarrassment to for­eign governments and instead adopted a rule requiring courts not to question the validity as a rule of decision of a foreign sovereign’s official acts fully performed with­in its own territory. 338 338 See W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 409 (1990) (“The act of state doctrine does not establish an exception for cases and controver­sies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.”). Kirkpatrick’s approach was more rule-like than the approach in Sabbatino, where the Court suggested a case-by-case balancing of factors. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964) (noting relevant factors and declining to lay down “inflexible and all-encompassing rule”). The lower courts’ approach to extraterritorial acts of state is more of a standard, calling for an evaluation of the foreign act’s consistency with U.S. policy in each case. See, e.g., Allied Bank Int’l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 522 (2d Cir. 1985) (“Acts of foreign governments purporting to have extra­territorial effect . . . should be recognized by the courts only if they are consistent with the law and policy of the United States.”). ... Close

On the restraint side of the ledger, some courts applying section 403 of the Restatement (Third) of Foreign Relations Law have determined the geographic scope of U.S. statutes on a case-by-case basis. 339 339 See supra note 195 and accompanying text (discussing cases applying section 403). ... Close Empagran’s presumption against unreasonable interference also has a standard-like quality, although the Court applied it in that case to generate clear rules about the applicability of the Sherman Act and expressly rejected case-by-case balancing. 340 340 See supra note 196 and accompanying text (discussing Empagran). ... Close Foreign state compulsion similarly operates on a statute-by-statute basis, although its application may depend on the degree of compulsion and on the good faith of the party asking to be excused from U.S. law. 341 341 See supra notes 198–203 and accompanying text (discussing foreign state compulsion). ... Close But the predominant manifestation of prescriptive comity as a principle of restraint in American law today is the presumption against extraterritoriality, which operates as a rule. To be sure, the Supreme Court’s decision in Morrison makes clear that the presumption does not turn me­chanically on the location of the conduct but rather requires a court to determine the “‘focus’ of congressional concern.” 342 342 Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2874 (2010). In Morrison, the Supreme Court applied the presumption against extraterritoriality to determine the geo­graphic scope of section 10(b) of the Securities Exchange Act, codified at 15 U.S.C. § 78j (2012), which prohibits fraud in connection with the purchase or sale of a security. Al­though the alleged fraud occurred in the United States, the Court applied the presump­tion, reasoning “that the focus of the Exchange Act is not upon the place where the de­ception originated, but upon purchases and sales of securities in the United States.” Morrison, 130 S. Ct. at 2884. Because the securities in Morrison had been purchased on a foreign stock exchange, the Court held that plaintiffs failed to state a claim under section 10(b). Id. at 2888. ... Close Once that focus has been established and the territorial reach of a provision determined, how­ever, the geographic scope of the provision remains the same in each case. 343 343 One post-Morrison decision has held that a transaction in the United States is a necessary but not sufficient condition for the application of section 10(b). See Parkcentral Glob. Hub Ltd. v. Porsche Auto. Holdings SE, 763 F.3d 198, 216 (2d Cir. 2014) (per curiam) (concluding “while a domestic transaction or listing is necessary to state a claim under § 10(b), a finding that these transactions were domestic would not suffice to compel the conclusion that the plaintiffs’ invocation of § 10(b) was appropriately domestic”). Parkcentral’s holding may be limited to cases in which the defendants were not parties to the U.S. trans­actions. See id. at 216 n.12 (noting “where the parties to the suit were the parties to the transaction, the fact that the transaction was domestic might well be deemed sufficient”). In that case, Parkcentral would simply create a rule-like exception to Morrison’s rule-like trans­actional test. But cf. id. at 218 (Leval, J., concurring) (characterizing per curiam opinion as “based on a number of facts”). ... Close

In the area of adjudicative comity, the recognition of foreign judg­ments is governed in most states by two uniform acts that set forth rela­tively clear rules. Thus, the 2005 Uniform Act, for example, provides that “a court of this state shall recognize a foreign-country judgment to which this [act] applies,” subject to a list of enumerated exceptions. 344 344 2005 Uniform Act, supra note 106, § 4(a). ... Close Some of those exceptions are mandatory. A court “may not” recognize a foreign judgment if “the judgment was rendered under a judicial system that does not provide . . . procedures compatible with . . . due process” or if the foreign court lacked personal or subject matter jurisdiction. 345 345 Id. § 4(b). ... Close Other exceptions are called discretionary. A court “need not” recognize a for­eign judgment if, for example, the defendant did not receive notice of the proceeding. 346 346 Id. § 4(c)(1). The other “discretionary” grounds for nonrecognition are: the judgment was obtained by fraud; the judgment is repugnant to public policy; the judg­ment conflicts with another final judgment; the judgment is contrary to a choice-of-court agreement; the foreign court was seriously inconvenient and jurisdiction rested only on service of process; there are substantial doubts about the integrity of the rendering court with respect to the particular judgment; or the defendant was not afforded due process. Id. § 4(c)(2)–(8). ... Close But U.S. courts treat most of these “discretionary” grounds for nonrecognition as mandatory in practice. 347 347 See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction § 404 cmt. b (Am. Law Inst., Tentative Draft No. 1, 2014) (noting only two grounds are treated as discretionary in practice). ... Close There is certain­ly an as­pect of discretion in the public policy exception, but that discre­tion is lim­ited by the Act’s requirement that the foreign judgment be “repugnant to the public policy of this state or of the United States,” a ra­ther high bar. 348 348 2005 Uniform Act, supra note 106, § 4(c)(3) (emphasis added). ... Close

Judicial assistance to foreign tribunals under § 1782, on the other hand, is clearly discretionary. The statute expressly says that a district court “may order” a person within its district to provide evidence. 349 349 28 U.S.C. § 1782(a) (2012) (emphasis added). ... Close In Intel Corp. v. Advanced Micro Devices, Inc., the Supreme Court refused to impose a rule limiting assistance to information that would be discovera­ble under the foreign tribunal’s rules 350 350 542 U.S. 241, 259–63 (2004) (rejecting “foreign-discoverability rule”). ... Close and instead articulated a number of “factors” to guide the district court’s discretion. 351 351 Id. at 264–65 (listing factors). ... Close

But it is only when adjudicative comity is used as a principle of re­straint that standards clearly predominate over rules. Forum non conven­iens, prudential exhaustion, international comity abstention, and the grant­ing of antisuit injunctions all require a case-by-case weighing of fac­tors and are reviewed on appeal for abuse of discretion. 352 352 See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) (“The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion . . . .”); GDG Acquisitions, LLC v. Gov’t of Belize, 749 F.3d 1024, 1030 (11th Cir. 2014) (“We also review the district court’s decision to dismiss based on international comity for abuse of discretion.”); Sarei v. Rio Tinto, PLC, 671 F.3d 736, 755 (9th Cir. 2011) (en banc) (plurality opinion) (McKeown, J.) (“The district court did not abuse its discretion when it considered whether exhaustion was required under the controlling plurality opinion of this court.”), vacated on other grounds, 133 S. Ct. 1995 (2013); Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., 369 F.3d 645, 651 (2d Cir. 2004) (“The standard of review for the grant of a perma­nent injunction, including an antisuit injunction, is abuse of discretion.”). But see Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 751–54 (1982) (questioning Piper’s holding that forum non conveniens determinations should be reviewed for abuse of discretion). ... Close The same is true of for­eign discovery under Aérospatiale, which requires a “particular­ized analy­sis of the respective interests of the foreign nation and the re­questing nation.” 353 353 Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 543–44 (1987). ... Close

There is nothing inherent in this category of comity doctrines, how­ever, that precludes the adoption of rules. Certainly there is a rule-like quality to Daimler’s limitation of general jurisdiction to a forum where the de­fendant is “at home,” which generally means an individual’s domi­cile or a corporation’s place of incorporation or principal place of busi­ness. 354 354 See Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014) (identifying place of incor­poration and principal place of business as paradigm bases for general jurisdiction over corporations). Daimler allows for general jurisdiction over a corporation at some other place only in “an exceptional case.” Id. at 761 n.19 (citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447–48 (1952)). ... Close In Aérospatiale, Justice Blackmun argued in favor of a rule requiring first resort to the procedures of the Hague Evidence Convention, noting that “nothing inherent in the comity principle . . . requires case-by-case analy­sis.” 355 355 482 U.S. at 554 (Blackmun, J., concurring in part and dissenting in part). ... Close And other countries moderate the jurisdiction of their courts with a doctrine of lis pendens that defers in rule-like fashion to the first court seized with jurisdiction. 356 356 See, e.g., Regulation No. 1215/2012, of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast), arts. 29–34, 2012 O.J. (L 351) 1 (governing lis pendens and related actions); see also George A. Bermann, Parallel Litigation: Is Convergence Possible?, 13 Y.B. Priv. Int’l L. 21, 23–28 (2011) (comparing forum non conveniens and lis pendens). For an argument that U.S. courts should adopt a similar rule, see Parrish, supra note 18, at 269–77 (arguing for stay in favor of action first filed unless manifest injustice would result). Campbell McLachlan has astutely observed that lis pendens does not require adoption of a first-seized rule. See Campbell McLachlan, Lis Pendens in International Litigation 36 (2009) (“In fact, the term denotes only the notion of a dispute, a lis, already pending before another court or tribunal. That is a factual phe­nomenon, not a legal solution to it.”). For an excellent review of possible solutions, see id. at 59–73. ... Close Simply put, the notion that comity “must nec­essarily depend on a variety of circumstances, which cannot be reduced to [sic] any certain rule,” 357 357 Story, supra note 54, § 28, at 34 (quoting Saul v. His Creditors, 5 Mart. (n.s.) 569, 596 (La. 1827) (Porter, J.)) (misquotation). ... Close is a myth.

In effectuating the purposes of international comity, rules have some advantages over standards. Many of the comity doctrines are justified on the basis of respecting foreign sovereignty and fostering friendly rela­tions. 358 358 See supra notes 152–154 and accompanying text (discussing emergence of for­eign sovereignty rationale). ... Close Rules further these interests by binding courts to defer to foreign government actors even when they might prefer not to do so. Discussing prescriptive comity as a principle of restraint in the Laker case, Judge Malcolm Wilkey observed:

If promotion of international comity is measured by the num­ber of times United States jurisdiction has been declined under the “reasonableness” interest balancing approach, then it has been a failure . . . . A pragmatic assessment of those decisions adopting an interest balancing approach indicates none where United States jurisdiction was declined when there was more than a de minimis United States interest . . . . When push comes to shove, the domestic forum is rarely unseated. 359 359 Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 950–51 (D.C. Cir. 1984) (footnotes omitted). The same could be said of other areas in which comity has been employed as a standard rather than a rule. See, e.g., Hannah L. Buxbaum, Assessing Sovereign Interests in Cross-Border Discovery Disputes: Lessons from Aérospatiale, 38 Tex. Int’l L.J. 87, 100 (2003) (“[T]he Aérospatiale decision improperly de-emphasized system values as compared to particular interests raised in individual cases, and . . . this deempha­sis has encouraged lower courts over the past fifteen years to ignore certain legitimate sov­ereign interests expressed by foreign states.”). After examining a number of different doc­trines, Maggie Gardner concludes that open-ended discretion promotes parochial out­comes systemically “because it enables the evolution of tests that increasingly lock in paro­chial results.” Maggie Gardner, Parochial Procedure 4 (Aug. 20, 2015) (unpublished manu­script), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2651453 (on file with the Columbia Law Review). ... Close

Rules may also have advantages with respect to comity’s other purpose of promoting commercial convenience. As a general matter, predictable rules better enable commercial parties to plan their affairs.

But in the private-interest context there may be other factors that cut in favor of standards. Courts may be more concerned with achieving fairness in cases that involve private parties. Rules may also be more easily gamed, and courts may therefore prefer standards that allow them to police abusive litigation tactics. It is perhaps for such reasons that one sees standards dominating adjudicative comity as a principle of restraint (e.g., forum non conveniens), while rules dominate in the area of sover­eign party comity. 360 360 The author is grateful to Steve Bundy and David Sloss for these points. ... Close

B. The Role of the Executive Branch

A second myth of international comity is the notion that the execu­tive branch enjoys a comparative advantage in making comity determina­tions. Posner and Sunstein have argued that “there are strong reasons, rooted in constitutional understandings and institutional competence, to allow the executive branch to resolve issues of international comity.” 361 361 Posner & Sunstein, supra note 33, at 1177. ... Close Because of its expertise in foreign relations, “the executive branch is in a better position to understand the benefits of foreign reciprocation or the likelihood and costs of retaliation than the judiciary.” 362 362 Id. at 1205. ... Close Posner and Sunstein, however, discuss only a limited number of international comity doctrines. 363 363 See id. at 1179–80 (discussing presumption against extraterritoriality, act of state doctrine, foreign sovereign immunity, and (mistakenly) Charming Betsy canon). ... Close When one looks at the full range, one sees quite a few with respect to which deference to the Executive seems completely inappro­priate: the conflict of laws, the enforcement of foreign judgments, forum non conveniens, antisuit injunctions, and questions of foreign discovery, to name a few. These doctrines undoubtedly implicate foreign relations, but they also fall within the core responsibility of the courts to manage their dockets and decide cases. With a number of these international comity doctrines, the Supreme Court has emphasized that the “determi­nation is committed to the sound discretion of the trial court.” 364 364 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) (emphasis added); see also Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 546 (1987) (“The exact line between reasonableness and unreasonableness in each case must be drawn by the trial court, based on its knowledge of the case and of the claims and interests of the parties and the governments whose statutes and policies they invoke.” (emphasis added)). ... Close The Executive rarely intervenes in such comity cases, and even when it does so, its views appear to receive no deference. 365 365 See, e.g., Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 950–53 (1st Cir. 1991) (Breyer, C.J.) (rejecting SEC’s argument that district court misapplied doctrine of forum non conveniens). ... Close

With other comity doctrines, the question is more complicated, and it may be useful to draw some distinctions. As Curtis Bradley notes, “[s]ome forms of deference may be more defensible than others.” 366 366 Bradley, supra note 66, at 666. ... Close On the one hand, the executive branch plainly has authority to make some decisions that affect the application of international comity doctrines. The President may recognize a foreign government, for example, or an agency may interpret the geographic scope of a statute it administers. Such decisions tend to be made categorically, outside the context of liti­gation. On the other hand, one should be skeptical of doctrines that al­low the executive branch to dictate the outcomes of particular cases on foreign policy grounds. Such discretion invades the province of the judi­ciary and may harm, rather than advance, U.S. foreign relations. 367 367 See infra notes 396–411 and accompanying text (discussing arguments against case-specific deference to executive branch). ... Close

Least problematic is the Executive’s authority to determine particu­lar facts on which some comity doctrines turn. For example, the President has unreviewable authority to recognize foreign govern­ments. 368 368 Guar. Tr. Co. of N.Y. v. United States, 304 U.S. 126, 137 (1938) (“What govern­ment is to be regarded here as representative of a foreign sovereign state is a political ra­ther than a judicial question, and is to be determined by the political department of the government.”). ... Close The act of state doctrine applies only to “the public acts [of] a recognized for­eign sovereign power,” 369 369 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964); see also Belgrade v. Sidex Int’l Furniture Corp., 2 F. Supp. 2d 407, 418 n.73 (S.D.N.Y. 1998) (hold­ing act of state doctrine did not apply to decree of unrecognized Federal Republic of Yugoslavia). ... Close and the recognition of a foreign government by the Executive will bring its previous acts within the scope of that doc­trine. 370 370 Oetjen v. Cent. Leather Co., 246 U.S. 297, 303 (1918) (holding “recognition is retroactive in effect and validates all the actions and conduct of the government so recog­nized from the commencement of its existence”). ... Close Recognition automatically confers the privilege of bringing suit in U.S. courts as a matter of comity, at least in the absence of a state of war with the United States. 371 371 Sabbatino, 376 U.S. at 408–09 (holding privilege of bringing suit extends to gov­ernments recognized by United States and not at war with it); see also Zivotofsky v. Kerry, 135 S. Ct. 2076, 2084 (2015) (“Recognized sovereigns may sue in United States courts . . . .”). In Pfizer, Inc. v. Government of India, the Court stated more broadly that “it is within the exclusive power of the Executive Branch to determine which nations are enti­tled to sue,” but in context the Court appears to have been referring to the President’s recognition power and not any broader authority to deny recognized foreign governments access to U.S. courts. 434 U.S. 308, 320 (1978). ... Close A strong case can be made that the President’s recognition should also control a foreign state’s entitle­ment to immunity under the FSIA. Lower courts have generally applied international law to decide if a defendant is a “foreign state” under the Act, 372 372 See, e.g., Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 47–49 (2d Cir. 1991) (applying international law criteria to decide Palestine Liberation Organization was not foreign state). ... Close but as the First Circuit has pointed out, this may not be the best approach. 373 373 See Ungar v. Palestine Liberation Org., 402 F.3d 274, 284 n.6 (1st Cir. 2005) (“It may be argued that a foreign state, for purposes of the FSIA, is an entity that has been rec­ognized as a sovereign by the United States government.”); see also Sokolow v. Palestine Liberation Org., 583 F. Supp. 2d 451, 458 (S.D.N.Y. 2008) (“Since Palestine is not recog­nized, under United States law, as a ‘foreign state,’ the defendants cannot deriva­tively se­cure sovereign immunity as agencies and/or instrumentalities of Palestine.”); Knox v. Palestine Liberation Org., 306 F. Supp. 2d 424, 438–48 (S.D.N.Y. 2004) (holding even if Palestine met international law criteria, it should not be considered “foreign state” under FSIA unless recognized by United States); cf. Zivotofsky, 135 S. Ct. at 2084 (“Recog­nized sovereigns . . . may benefit from sovereign immunity when they are sued . . . .”). The possibil­ity of case-specific deference to the Executive under the FSIA is considered below. See infra notes 386–388, 404–410 and accompanying text (discussing FSIA). ... Close Under the FSIA, Congress has also given the State Department express authority to permit terrorism suits against foreign states by desig­nating them “state sponsor[s] of terrorism.” 374 374 28 U.S.C. § 1605A(h)(6) (2012). ... Close There is also nothing in­appropriate about having doctrines of status-based foreign official im­munity—like diplo­matic immunity and head-of-state immunity—turn on the President’s re­cognition of a foreign official’s status. 375 375 See Yousuf v. Samantar, 699 F.3d 763, 772 (4th Cir. 2012) (“Like diplomatic im­munity, head-of-state immunity involves ‘a formal act of recognition,’ that is ‘a quintessen­tially executive function’ for which absolute deference is proper.” (quoting Rutledge, supra note 330, at 606). As noted above, diplomatic immunity is codified in the Vienna Convention on Diplomatic Relations, while head-of-state immunity is a rule of customary international law. See supra notes 280–281 and accompanying text (discussing diplomatic and head-of-state immunity). But the appropriateness of having the President make the status determination on which the doctrines turn does not depend on whether the doc­trines are ones of comity or of international law. ... Close In a sense, all of these doctrines defer to the executive branch. But they do so by at­taching legal conse­quences to an exercise of executive authority made outside the context of litigation, rather than by deferring to the Executive’s judgment about wheth­er any particular case should be dismissed. The Supreme Court captured the distinction in its 1938 Guaranty Trust deci­sion. 376 376 Guar. Tr. Co. of N.Y. v. United States, 304 U.S. 126 (1938). ... Close The Executive’s “ac­tion in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts,” the Court noted. 377 377 Id. at 138. ... Close But the courts “are free to draw for them­selves its legal consequences in litigations pending before them.” 378 378 Id. ... Close

Another common exercise of executive branch authority is for an agen­cy to interpret a statute it administers. 379 379 See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984) (holding if “Congress has not directly addressed the precise question at issue, . . . a court may not substitute its own construction of a statutory provision for a reasonable in­terpretation made by the administrator of an agency”). ... Close Posner and Sunstein cor­rectly argue that courts should defer to agency interpretations of the geograph­ic scope of federal statutes. 380 380 See Posner & Sunstein, supra note 33, at 1204 (“[I]n cases in which the executive has adopted an interpretation via rulemaking or adjudication, or is otherwise entitled to deference under standard principles of administrative law, the executive’s interpretations should prevail over the comity doctrines.”); see also Bradley, supra note 66, at 691–94 (arguing for Chevron deference on questions of geographic scope); Zachary D. Clopton, Replacing the Presumption Against Extraterritoriality, 94 B.U. L. Rev. 1, 45 (2014) (“[I]f a statute is silent or ambiguous with respect to its extraterritoriality, and if Congress has ex­plicitly or implicitly delegated responsibility for that statute to an administrative agency, the agency’s ex ante interpretation is valid if it is a permissible construction of the statute.”). ... Close The reasons for this are the ordinary rea­sons for Chevron deference—that an ambiguous statute should gener­ally be read as a delegation of interpretative authority to an agency that ad­ministers it and that administrative agencies have special expertise with respect to statutory goals and how best to achieve them. But it is critical to emphasize that Chevron deference is deference to the interpretation of a stat­ute to be applied across a whole range of cases, and not deference with re­spect to how any particular case should be resolved.

Much more problematic is judicial deference to the Executive with re­spect to the outcomes of particular cases. Some international comity doc­trines have been interpreted to permit case-by-case discretion by the ex­ec­utive branch. The Second Circuit has held that the Executive may waive the act of state doctrine in a particular case under the so-called Bernstein exception. 381 381 Bernstein v. N.V. Nederlandsche-Amerikaansche, 210 F.2d 375, 376 (2d Cir. 1954) (giving effect to State Department letter waiving act of state doctrine). Although six Justices rejected the Bernstein exception in First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972), they did so in three separate opinions, none of which commanded a majority of the Court. See id. at 772–73 (Douglas, J., concurring) (rejecting Bernstein exception); id. at 773 (Powell, J., concurring) (“I would be uncomfortable with a doctrine which would require the judiciary to receive the Executive’s permission before invoking its jurisdiction.”); id. at 789 (Brennan, J., dissenting) (arguing executive branch “cannot by simple stipulation change a political question into a cognizable claim”). And while W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 408–09 (1990), rejected a broader role for the Executive in determining when the act of state doctrine should be ap­plied, it did not formally pass on the validity of the Bernstein exception. Id. at 405 (finding it unnecessary to address possibility of “exception for cases in which the Executive Branch has represented that it has no objection to denying validity to the for­eign sovereign act”).
The President also has statutory authority under the Second Hickenlooper Amendment to invoke the act of state doctrine in cases where the statute would otherwise make the doctrine inapplicable—specifically where property expropriated in violation of interna­tional law is brought to the United States. See 22 U.S.C. § 2370(e)(2) (2012) (creating exception “in any case with respect to which the President determines that application of the act of state doctrine is required in that particular case by the foreign policy interests of the United States”). The President has never used this authority. ... Close

With respect to foreign official immunity, the executive branch has claimed authority to make binding determinations since the Supreme Court’s 2010 decision in Samantar. 382 382 Samantar v. Yousuf, 130 S. Ct. 2278 (2010); see, e.g., Brief for the United States as Amicus Curiae Supporting Appellees at 10, Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012) (No. 11-1479) (arguing State Department determinations of foreign official immun­ity are “binding”). ... Close For status-based immunities, this au­thority derives from the President’s recognition power and is uncontro­versial, but there is no “equivalent constitutional basis” for determina­tions of status-based immunity. 383 383 Yousuf, 699 F.3d at 773; see also Ingrid Wuerth, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, 51 Va. J. Int’l L. 915, 929–54 (2011) (considering and rejecting bases for executive lawmaking with respect to immun­ity). But see Lewis S. Yelin, Head of State Immunity as Sole Executive Lawmaking, 44 Vand. J. Transnat’l L. 911, 969 (2011) (“[T]he Executive Branch engages in undelegated law­making when it makes head of state immunity determinations.”). ... Close Nevertheless, the Fourth Circuit gives State Department determinations of conduct-based immunity “substantial weight,” 384 384 Yousuf, 699 F.3d at 773. ... Close while the Second Circuit considers them absolutely binding. 385 385 See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. 2009) (“[I]n the common-law con­text, we defer to the Executive’s determination of the scope of immunity.”). ... Close

As for foreign state immunity, the FSIA was passed in 1976 with the express purpose of shifting immunity determinations from the executive branch to the courts. 386 386 See infra notes 406–409 and accompanying text (discussing legislative history of FSIA). ... Close In Republic of Austria v. Altmann, the Supreme Court refused to give any “special deference” to the Executive’s views about how the FSIA should be interpreted but suggested that “should the State Department choose to express its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.” 387 387 541 U.S. 677, 701–02 (2004). ... Close This suggestion drew a sharp dissent from Justice Kennedy, who noted that “judicial independence . . . is compromised by case-by-case, se­lective determinations of jurisdiction by the Executive.” 388 388 Id. at 735 (Kennedy, J., dissenting). ... Close

Finally, in the context of litigation under the Alien Tort Statute, the Supreme Court has raised the possibility of “case-specific deference to the political branches,” stating that “there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.” 389 389 Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004). ... Close Lower courts have tended to cabin this sug­gestion within the existing framework of the political question doctrine. 390 390 See, e.g., Doe v. Exxon Mobil Corp., 654 F.3d 11, 58 (D.C. Cir. 2011) (noting deference suggested in Sosa “could implicate a number of the factors identified in Baker v. Carr,” a leading political question case), vacated on other grounds, 527 F. App’x 7 (D.C. Cir. 2013); Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 261 (2d Cir. 2007) (equat­ing deference suggested in Sosa with “prudential justiciability doctrine known as the politi­cal question doctrine” (internal quotation marks omitted)). ... Close But the Ninth Circuit in Mujica, applying its newly minted doctrine of in­ter­national comity abstention, 391 391 See supra notes 257–258 and accompanying text (discussing Ninth Circuit’s deci­sion in Mujica). ... Close gave substantial weight to a U.S. state­ment of interest suggesting “that the adjudication of this case will have an adverse impact on the foreign policy interests of the United States.” 392 392 Mujica v. Airscan Inc., 771 F.3d 580, 609 (9th Cir. 2014) (internal quotation marks omitted). The panel quoted Sosa in support. Id. at 610. ... Close

Posner and Sunstein do not discuss any of these examples in de­tail, 393 393 They briefly assert that “courts continue to take account of the executive’s views in FSIA cases.” Posner & Sunstein, supra note 33, at 1200; see also id. n.97 (citing Altmann). They also refer to “a strain of thinking about the act of state doctrine . . . that courts should defer when the executive informs them that this doctrine should not apply in a particular case.” Id. at 1201. And they appear to chide the Court for not going far enough in Sosa to embrace deference to the executive branch. See id. at 1202 & n.109 (expressing surprise courts have not fully embraced deference to Executive and citing Sosa as example). Of course, a few of the examples in this Article, like international comity abstention and foreign official immunity, did not have the same salience when Posner and Sunstein published their Article in 2007. ... Close but they come down firmly on the side of case-specific deference to the executive branch. Even outside the Chevron context, they argue, courts should defer “if the executive branch argues that the court should dismiss the case rather than reach the merits.” 394 394 Id. at 1207; see also id. at 1177 (“Our argument also implies greater deference to the executive when it intervenes in private litigation.”); id. at 1205–06 (discussing example of “litigation against China by Chinese victims of state repression”). ... Close “[T]he argument for deference to the executive is that it has more expertise than the courts in foreign relations and that the executive’s accountability for foreign rela­tions is more important than the courts’ independence from political pres­sure.” 395 395 Id. at 1207. ... Close But Posner and Sunstein elide some key distinctions be­tween Chevron deference and case-specific deference and fail to respond to the two main normative arguments against a case-specific role for the execu­tive branch in administering the doctrines of international comity.

First, as Justice Kennedy pointed out in his Altmann dissent, “judicial independence” is compromised when the Executive has the power to make “case-by-case, selective determinations” that dictate the outcome of cases. 396 396 Republic of Austria v. Altmann, 541 U.S. 677, 735 (2004) (Kennedy, J., dissenting). ... Close Justice Douglas once made the point more colorfully in an act-of-state case, writing that such discretion makes the court “a mere errand boy for the Executive Branch which may choose to pick some people’s chestnuts from the fire, but not others’.” 397 397 First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 773 (1972) (Douglas, J., concurring in the judgment). ... Close Testifying before Congress in favor of the proposed FSIA, State Department Legal Adviser Monroe Leigh said that the State Department’s “consideration of political factors is, in fact, the very antithesis of the rule of law which we would like to see es­tablished.” 398 398 Jurisdiction of U.S. Courts in Suits Against Foreign States: Hearings on H.R. 11315 Before the Subcomm. on Admin. Law & Governmental Relations of the H. Comm. on the Judiciary, 94th Cong. 35 (1976) (testimony of Monroe Leigh, Legal Adviser, Dep’t of State) [hereinafter Leigh Testimony]. ... Close Deferring to an agency’s interpretation of the geographic scope of a statute under Chevron respects the established roles of Congress, the executive branch, and the courts. 399 399 Cf. INS v. Chadha, 462 U.S. 919, 951 (1983) (“The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility.”). ... Close Allowing the Executive to tell courts which cases to dismiss does not. Thus, the Supreme Court properly re­jected the U.S. government’s argument in Kirkpatrick that the act of state doctrine should bar adjudication whenever the Executive determined that a case would cause too much embarrassment to a foreign government. 400 400 See W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 408–09 (1990) (“The act of state doctrine does not establish an exception for cases and controver­sies that may embarrass foreign governments . . . .”). ... Close “The short of the matter is this: Courts in the United States have the pow­er, and ordinarily the obligation, to decide cases and controversies pro­perly presented to them.” 401 401 Id. at 409. In an excellent review of the Roberts Court’s foreign relations law cases, Harlan Cohen concludes that the current Court is less and less inclined to trust the executive branch. See Cohen, supra note 34, at 436 (“Special deference to the Executive on foreign affairs now seems ill-placed.”). ... Close

Second, the Executive’s ability to make case-by-case comity determi­nations may harm, rather than advance, the foreign relations of the United States. In Sabbatino, Justice Harlan observed that “[o]ften the State Department will wish to refrain from taking an official position, par­ticularly at a mo­ment that would be dictated by the development of pri­vate litigation but might be inopportune diplomatically.” 402 402 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964). ... Close Ironically, international comity doctrines that promise deference to the Executive put the Executive in the uncomfortable position of having to make deci­sions that may disap­point foreign governments. 403 403 See Sitaraman & Wuerth, supra note 34, at 1943 (“[T]he diplomatic contact between executive branch officials and their foreign counterparts is in some contexts a reason for courts not to defer because deference would mean that State Department offi­cials might be held responsible for negative decisions or that they are lobbied heavily by foreign governments . . . .” (emphasis omitted)). ... Close

This was the U.S. experience with respect to foreign state immunity from the 1940s, when the Supreme Court adopted a rule of deferring to determinations of immunity by the State Department, 404 404 See Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945) (“It is therefore not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.”); Ex Parte Republic of Peru, 318 U.S. 578, 589 (1943) (holding determination of state immun­ity “must be accepted by the courts as a conclusive determination by the political arm of the Government”). ... Close until Congress passed the FSIA in 1976. 405 405 For a summary of sovereign immunity determinations during that period, see generally Sovereign Immunity Decisions of the Department of State, May 1952 to January 1977 (Michael Sandler et al., eds.), in John A. Boyd, Digest of U.S. Practice in International Law 1017 (1977). ... Close As State Department Acting Legal Adviser Charles Brower testified, “We at the Department of State are now per­suaded . . . that the foreign relations interests of the United States . . . would be better served if these questions of law and fact were decided by the courts rather than by the executive branch.” 406 406 Immunity of Foreign States: Hearing on H.R. 3493 Before the Subcomm. on Claims & Governmental Relations of the H. Comm. on the Judiciary, 93d Cong. 14 (1973) (statement of Charles N. Brower, Legal Adviser, Dep’t of State) [hereinafter Foreign State Immunity Hearing]. ... Close The problem was that “some foreign states may be led to believe that since the decision can be made by the executive branch it should be strongly affected by foreign policy considerations” and that these states were “inclined to regard a de­cision by the State Department refusing to suggest immunity as a polit­ical decision unfavorable to them rather than a legal decision.” 407 407 Id.; see also Leigh Testimony, supra note 398, at 34 (noting “disadvantages . . . of being able to enter a political judgment in the court” in “cases where we would rather not do anything at all, but where there is enormous pressure from the foreign government that we do something”). ... Close In their let­ter of transmittal to Congress, the Department of Justice and the Department of State explained:

The transfer of this function to the courts will also free the [State] Department from pressures by foreign states to suggest immun­ity and from any adverse consequences resulting from the un­willingness of the Department to suggest immunity. The Department would be in a position to assert that the question of immunity is entirely one for the courts. 408 408 Letter from Richard G. Kleindienst, Attorney Gen., & William P. Rogers, Sec’y of State, to the Speaker of the House of Representatives (Jan. 16, 1973), reprinted in Foreign State Immunity Hearing, supra note 406, at 34. ... Close

Both the House and Senate Reports accompanying the FSIA empha­sized that “[a] principal purpose of this bill is to transfer the determina­tion of sovereign immunity from the executive branch to the judicial branch, thereby reducing the foreign policy implications of immunity de­terminations” and freeing the State Department “from pressures from for­eign governments to recognize their immunity from suit and from any ad­verse consequences resulting from an unwillingness of the Department to support that immunity.” 409 409 H. Comm. on the Judiciary, Jurisdiction of U.S. Courts in Suits Against Foreign States, H.R. Rep. No. 94-1487, at 7 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6606; S. Comm. on the Judiciary, Define Jurisdiction of U.S. Courts in Suits Against Foreign States, S. Rep. No. 94-1310, at 9 (1976). ... Close Over the past four decades, the “FSIA (with lit­tle or no deference to the executive branch) has not generated major for­eign policy problems.” 410 410 Wuerth, supra note 383, at 953. ... Close

As former State Department Legal Adviser John Bellinger has noted, the same dynamic is likely to play itself out in the context of foreign offi­cial immunity, where the State Department currently claims unreviewable discretion to make case-by-case immunity determinations:

I wonder whether, in a few years time, the Legal Adviser’s Office will be in that same situation again, seeking another kind of FOIA—a “Foreign Officials Immunities Act”—just as 40 years ago it sought the FSIA to relieve the burden and political pres­sure of having to file statements of sovereign immunity in every case. 411 411 John B. Bellinger III, The Dog that Caught the Car: Observations on the Past, Present, and Future Approaches of the Office of the Legal Adviser to Official Acts Immunities, 44 Vand. J. Transnat’l L. 819, 835 (2011). ... Close

Other international comity doctrines that allow the Executive to dic­tate the outcome in specific cases—the Bernstein exception to the act of state doctrine, Altmann’s possibility of deference to statements of interest under the FSIA, and Sosa’s suggestion of case-specific deference in ATS cases—present the same dangers. Each opportunity for deference invites pressure from foreign governments and creates the possibility of diplo­matic backlash if the Executive decides not to support their positions.

Giving the executive branch authority to make case-by-case determi­nations under doctrines of international comity is a bad idea. It turns le­gal decisions into political ones, undermining not only the rule of law but also the foreign policy interests of the United States. The desirability of executive discretion over questions of international comity is not just a myth, it is a dangerous myth.

Conclusion

This Article aims to support the role of international comity in U.S. foreign relations law by providing a proper definition and analytic frame­work and by freeing international comity from some of the myths that have surrounded it. The principle of comity is manifested in a large num­ber of American doctrines that mediate the relationship between the U.S. legal system and those of other nations. These international comity doc­trines operate to recognize foreign law and to restrain the reach of American law. They recognize the judgments of foreign courts and limit the juris­dic­tion of American courts. They allow foreign governments to bring suit as plaintiffs, while shielding those governments and their offi­cials from responding as defendants in some circumstances.

This Article provides the first comprehensive account of internation­al comity in American law, as well as the “clear analytical framework” that previous writers have complained was missing. 412 412 Childress, supra note 20, at 51. ... Close The Article defines in­ter­national comity in a way that is both clearer and more comprehen­sive than the Supreme Court’s famously ambiguous statement in Hilton. 413 413 See Hilton v. Guyot, 159 U.S. 113, 163–64 (1895) (“‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other per­sons who are under the protection of its laws.”); supra notes 26–31 and accompanying text (discussing Hilton). ... Close As this Article defines it, international comity is deference to foreign govern­ment actors that is not required by international law but is incorpo­rated in domestic law.

Distinguishing between international and domestic law does not den­igrate the important role of international law in mediating among nation­al legal systems. In areas like foreign sovereign immunity and prescrip­tive jurisdiction, doctrines of international comity are layered on top of rules of international law, creating a comity penumbra that surrounds an in­ternational law core. 414 414 See supra notes 298–302 and accompanying text (discussing foreign sovereign immunity and prescriptive jurisdiction). ... Close But the distinction clarifies the respective roles of in­ternational comity and international law. It also underlines the point that courts and legislatures may shape the international comity doc­trines, as rules of domestic law, to achieve an appropriate level of defer­ence to foreign lawmakers, foreign courts, and foreign governments as litigants.

This Article contributes to the ongoing debates over the shape of those doctrines by showing that international comity may be expressed in rules rather than standards and may be exercised by courts rather than the Executive. The Article should not be understood to suggest that there is a single form of international comity appropriate to every situation. Each of the international comity doctrines discussed above has its own require­ments adapted to the particular context in which it is used. Some doc­trines, like forum non conveniens, may properly take the form of stand­ards rather than rules. 415 415 See supra notes 229–237 and accompanying text (discussing forum non conveniens). ... Close Others, like the presumption against extraterri­toriality, may properly allow for deference to agency interpreta­tions. 416 416 See supra notes 379–380 and accompanying text (discussing Chevron). ... Close But whatever particular form a doctrine takes, it is a court’s obli­gation to apply its requirements faithfully rather than treating interna­tional comity as a blank check for discretion, either by the court or by the executive branch.