I’m very excited about my first paper on SSRN, Two Modes of Comity, which is to be published in the forthcoming issue of the University of Pennsylvania Journal of International Law. The paper is based on remarks I gave at JIL’s 2012 Fall Symposium in Philadelphia.
Here is my point in a nutshell. Sometimes people suggest (I’m one of them) that US law should not allow a court to consider fraud in a particular foreign case when deciding whether to recognize the foreign judgment, as long as the foreign judiciary overall is systematically adequate. The idea is that if the foreign judiciary overall is okay, then we should trust it to correct its own errors, and if it’s not okay overall, then we shouldn’t recognize its judgments in any case. Is this a good idea, or not? In my talk, I tried to evaluate the idea by considering what “comity” requires, but “comity,” it turns out, doesn’t always mean the same thing. It means one thing, for example, when a US court is required by the Full Faith and Credit Clause to recognize a sister-state judgment. It means another, more deferential thing when a US federal court is reviewing a US state court’s decision in a habeas corpus case. Which of these two models is a better model of comity to apply to recognition of foreign judgments? I don’t reach a firm conclusion, but I do point to some recent decisions, which I covered first here at Letters Blogatory, that suggest that in fact, US courts may tend to use the more deferential model of comity when “sitting in judgment” on foreign judgments.
What do you think?