Friday, February 13, 2015
Abstract: International comity is one of the principal foundations of U.S. foreign relations law. 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 — from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government’s privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of international comity and an analytic framework for thinking about its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge two widespread myths — that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch. I show that international comity doctrines are frequently expressed as rules rather than standards, and that courts are usually in a better position to apply them than the executive branch.