the transformation of international comity

I INTRODUCTION Private international law reflects and shapes the contours of public and private law in ways that demarcate the boundaries of state sovereignty and allocate power among public and private actors. When courts decide on the reach of domestic and foreign law, or on the availability and appropriateness of the forum, they are balancing the forum's public policy against the rights of private parties. In doing so, they are also circumscribing both the relationship between the court and the political branches and between the forum state and the world. Private international law functions much like a constitution to empower and delimit authority, and, much like a constitution, the evolution of private international law is a story about the shifting historical context in which courts, the sovereign, and private actors play out their relations in market and personal transactions. In the United States the foundation of private international law is the doctrine of international comity. Roughly speaking, courts, according to this doctrine, should apply foreign law or limit domestic jurisdiction out of respect for foreign sovereignty. (1) International comity requires courts to balance competing public and private interests in a manner that takes into account any conflict between the public policies of the domestic and foreign sovereigns. Scholars and courts have characterized international comity inconsistently as a choice-of-law principle, (2) a synonym for private international law, (3) a rule of public international law, (4) a moral obligation, (5) expediency, (6) courtesy, (7) reciprocity, (8) utility, (9) or diplomacy. (10) Authorities disagree as to whether comity is a rule of natural law, custom, treaty, or domestic law. (11) Indeed, there is not even agreement that comity is a rule of law at all. (12) Although other jurisdictions sometimes employ the term comity as a synonym for diplomatic immunity, (13) in the United States comity has served as a principle of deference to foreign law and foreign courts. (14) For all these reasons, international comity would seem to be too vague, incoherent, illusory, and ephemeral to serve as a foundation for U.S. private international law. Yet, it is precisely these qualities that have allowed the doctrine of international comity to mutate over time in ways that respond to different geopolitical circumstances. Specifically, international comity has shifted in three distinct respects. First, the meaning of comity has shifted over time. Originally, international comity was a discretionary doctrine that empowered courts to decide when to defer to foreign law out of respect for foreign sovereigns. (15) Comity has become a rule that obligates courts to apply foreign law in certain circumstances. (16) Second, the object of comity has changed. Whereas once courts justified applying foreign law out of deference to foreign sovereigns, courts later justified their decisions out of deference to the autonomy of private parties or to the political branches. (17) Most recently, courts have justified limits on domestic law out of deference to the global market. Third, the function of comity has changed. Comity is no longer merely a doctrine for deciding when to apply foreign law; it has become a justification for deference in a wide range of cases concerning prescriptive, adjudicatory, and enforcement jurisdiction. This article briefly traces these shifts in the meaning, function, and object of international comity. These developments are closely tied to historical contexts: the conflict over slavery in the early nineteenth century, the development of a national economy in the latter half of the nineteenth century, the Cold War in the mid-twentieth century, and the present era of globalization. For these purposes, the term "comity" is used here in two senses. First, it refers to the classical doctrine of comity as it evolved through the nineteenth century. …