| Popis: |
The lower federal courts have been invoking “international comity abstention” to solve a wide array of problems in cross-border cases. In doing so, they are using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s renewed embrace of the federal judiciary’s virtually unflagging obligation to exercise the jurisdiction given to the courts by Congress. Indeed, loose applications of “international comity abstention” risk undermining not only the interests of Congress, but the interests of the states as well.This Article argues against “international comity abstention” both as a label and as a generic doctrine. As a label, it has led courts to conflate abstention with other comity doctrines that are not about abstention at all, increasing the risk of judicial error and jeopardizing federalism protections. And as a generic doctrine, it encourages judges to decline their jurisdiction too readily, in contrast to the Court’s emphasis on the principle of jurisdictional obligation. The solution, however, is not to deny all judicial discretion to decline jurisdiction. Even if such a complete bar on abstention were intended as an act of judicial humility, it may serve to empower the judiciary instead. Absolute rules, whether based on constitutional limits or strict textualism, can override or exclude the other branches’ views regarding the proper scope of transnational litigation in U.S. courts. Leaving some space for judicial discretion to decline jurisdiction also leaves some space for the other branches to continue that conversation.In lieu of a single broad doctrine of “international comity abstention,” then, this Article proposes identifying more narrow bases for abstention in transnational litigation — bases that can be separately justified, candidly addressed, and analyzed through judicially manageable frameworks. In particular, the federal courts need a clear and consistent framework for when to stay cases in light of parallel litigation in foreign courts. A separate doctrine for deferring to foreign comprehensive remedial schemes may also be appropriate.Evaluating the doctrinal design of abstention in transnational litigation also serves as a lens through which to revisit a long-standing debate: To the extent that the principle of jurisdictional obligation reflects separation-of-powers concerns, those concerns can be addressed without insisting that judges’ hands are tied. True judicial humility recognizes both Congress’s role in defining the federal courts’ jurisdiction and the impossibility of asking judges to read Congress’s mind. Leaving space for carefully cabined discretion in hard cases recognizes both the complexity of life and the continuing need for inter-branch dialogue. |
