Abstention at the Border

64 Pages Posted: 13 Mar 2018 Last revised: 28 Oct 2022

Date Written: March 1, 2019


The lower federal courts have been invoking “international comity abstention” to solve a range of problems in cross-border cases, 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 recent reemphasis on the federal judiciary’s obligation to exercise congressionally granted jurisdiction. Indeed, loose applications of “international comity abstention” risk undermining not only the expressed preferences 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 leads courts to conflate abstention with other comity doctrines that are not about abstention at all. And as a generic doctrine, it encourages judges to decline their jurisdiction too readily, in contrast to the presumption of jurisdictional obligation. In lieu of a single broad doctrine of “international comity abstention,” then, this Article urges federal judges to specify more narrow grounds for abstention in transnational cases—grounds that can be separately justified, candidly addressed, and analyzed through judicially manageable frameworks. For example, a primary basis for “international comity abstention” has been deference to parallel proceedings in foreign courts, a common problem that deserves its own dedicated analytical framework. A separate doctrine for deferring to integrated foreign remedial schemes may also be appropriate. Perhaps other limited bases for transnational abstention could be identified as well. The goal should not be a strict formalism that insists that judges’ hands are tied, but rather a channeling of judicial discretion so as to promote—rather than displace—interbranch dialogue about the proper role of comity in the courts.

Keywords: federal courts, civil procedure, comity, transnational litigation, international comity abstention, Vitamin C Antitrust, Animal Science Products, Mujica, abstention

Suggested Citation

Gardner, Maggie, Abstention at the Border (March 1, 2019). 105 Virginia Law Review 63 (2019), Cornell Legal Studies Research Paper No. 18-15, Available at SSRN: https://ssrn.com/abstract=3137228

Maggie Gardner (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics