Brief of Amici Curiae Professors William S. Dodge and Maggie Gardner in Support of Plaintiffs-Appellees and Affirmance, Reid v. Doe Run Resources Corp.

Abstract

This amicus brief was submitted to the Eighth Circuit Court of Appeals in Reid v. Doe Run Resources Corp. The brief argues that the Eighth Circuit should not adopt a doctrine of foreign-policy abstention based on international comity as urged by the defendants. First, the brief notes that foreign-policy abstention is not a traditional comity doctrine, having been adopted for the first time in 2004. Only the Ninth Circuit currently employs foreign-policy abstention. Second, the brief argues that foreign-policy abstention conflicts with Supreme Court precedent. The Supreme Court has repeatedly emphasized the federal courts' “virtually unflagging” obligation to exercise jurisdiction. The Court has also refused to make other comity doctrines turn on the views of foreign governments or of the United States and has rejected the kind of multifactor balancing for international comity that defendants propose. Third, the brief argues that adopting a new doctrine of foreign-policy abstention is unnecessary because existing doctrines of international comity already address the defendants’ policy concerns.

Keywords: Comity, Abstention, Mujica, Extraterritoriality