Prescriptive Comity: From Standards to Rules 

Abstract

Judge Weis’s opinion in Mannington Mills presents an important historical marker for the development of the prescriptive comity doctrine. The doctrine as employed in that decision represents a view of comity as a standard as opposed to a rule that was ascendant at the time that case was decided. However, more recent cases in the Supreme Court have favored rules over standards and multifactor balancing tests. This idea of rules versus standards shows a continuing debate in private international law between the ways in which U.S. courts should evaluate questions of conflict between U.S. and foreign law. It also provides a comparative insight for cases in non-U.S. jurisdictions dealing with similar issues. What role rules versus standards may play in comity remains a fertile area of law for development by the Supreme Court, especially in the antitrust context. This Article, written for a symposium in honor of Judge Weis, is divided into two parts. In Part I, the Article explains the state of the prescriptive comity doctrine at the time Mannington Mills was decided. This part also explores the development of prescriptive comity since that decision. In Part II, the Article evaluates prescriptive comity in the context of a debate in private international law about rules versus standards. The Article concludes with observations on the doctrine going forward in light of recent U.S. Supreme Court decisions in related cases and cases from foreign jurisdictions that touch on similar issues.

Keywords: Mannington Mills v. Congoleum, prescriptive comity, comity, private international law, foreign law, U.S. Supreme Court