International Comity in American Law

Citation: William S. Dodge (2015) International Comity in American Law. Columbia Law Review (RSS)
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Summary

Bases a functional definition of international comity on U.S. Supreme Court cases that use the word “comity” (637, over 100 of which were relevant to international comity) as well as a large number of lower court cases:

International comity is deference to foreign gov­ernment actors that is not required by international law but is incorporated in domestic law.

Categorizes in two dimensions:

1. foreign government actor to whom defer­ence is given
   1. lawmakers "prescriptive comity"
   2. tribunals "adjudicative com­ity"
   3. government litigants "sovereign party comity"
2. operation to
   1. recognize foreign law "principle of recognition"
   2. restrain domestic law reach "principle of restraint"

Provides a history of international comity, starting in the Netherlands in the aftermath of Westphalia, then the UK, then US. Mitigated dilemmas resulting from strict territoriality, justified by commercial (private) convenience. Decreased strict territoriality and increased use as principle of restraint has gone with more public rationales such as fostering friendly relations.

Emphasizes that international comity is distinct from international law; depending on the topic law is core and comity penumbra, or comity may be all there is. Debunks two claimed myths: that international comity must be governed by standards rather than rules (comity rules exist), and that comity decisions are best left to the executive branch (this would be absurd for some topics such as conflict of laws, and would dangerously politicize law in others).

Theoretical and Practical Relevance

Claims to be "the first comprehen­sive account of international comity applied by U.S. courts."