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The opioid epidemic has devastated communities throughout the United States over the last two decades. Native American and Alaska Native tribes faced disproportionate impacts and suffered the long-lasting consequences that opioid addiction causes families and communities. In response, states and municipalities across the United States sued the distributors and pharmacies responsible for illegally diverting opioids. In April of 2017, the Attorney General for the Cherokee Nation, Todd Hembree, initiated a civil suit against opioid pharmaceutical distributors and retailers: CVS, Walgreens, Wal-Mart (pharmacies), and McKesson, Cardinal Health, and AmerisourceBergen (distributors). Although other tribes in the United States also brought claims against the distributors and pharmacies, the Cherokee Nation took a unique approach: it brought a civil suit in tribal, rather than federal, court. In response, the distributors and pharmacies sought to enjoin the suit, asking the Federal District Court for the Northern District of Oklahoma to assert its jurisdiction over the pending case and halt proceedings. The court granted the distributors and pharmacies injunctive relief and stopped the case from proceeding in tribal court. As Felix Cohen,1 the author of the Handbook of Federal Indian Law, remarked, one of "the most basic principle[s] of all Indian law"2 is that a tribe's powers are "inherent powers of a limited sovereignty which [have] never been extinguished,"3 and "what is not expressly limited [by Congress] remains within the domain of tribal sovereignty."4 Congress has not expressly authorized the removal of cases from tribal court to federal court. Instead, the policy and decisional law of the United States requires federal courts to wait to assert jurisdiction over civil cases pending in tribal court until plaintiffs have exhausted tribal remedies. Known as the exhaustion doctrine, this requirement is based on the principle of comity, which has its roots in international law. Comity is a principle of restraint that encourages nations to acknowledge and enforce the fair and equitable decisions of foreign sovereigns in their jurisdiction. This Comment argues that by failing to apply the exhaustion doctrine, the Federal District Court for the Northern District of Oklahoma violated the principles of comity. The court erred in its decision to grant the distributors' and pharmacies' preliminary injunction against the Cherokee Nation's opioid litigation. In doing so, the court ignored well-established federal decisional law and policy developed to support tribal self-determination. Ultimately, to promote the federal interest in supporting the self-determination of tribes, federal courts must follow the exhaustion doctrine and principles of comity in matters regarding tribal court civil jurisdiction over non-members. [ABSTRACT FROM AUTHOR]

The Supreme Court's habeas corpus retroactivity jurisprudence has never been a model of clarity or fairness. Ordinarily, if a case is on direct review, a court is bound to apply constitutional law as it currently stands, not the law as it stood at the time of trial, conviction, or sentencing. This rule derives from Griffith v. Kentucky, in which the Supreme Court held that the Constitution requires that all new constitutional rules apply to cases on direct review. However, in Teague v. Lane, the Court distinguished direct and collateral review, holding that new constitutional rules do not apply to cases on collateral review unless they fall within one of two exceptions. The Court has justified this approach to retroactivity by emphasizing comity, respect for the judicial process of the state courts, and finality, the closure a judgment of conviction is supposed to bring. This retroactivity test is not only complex but also produces disparate impacts on similarly situated individuals. For this reason and many others, legal scholars have long criticized the Teague doctrine; as Justice Gorsuch recently acknowledged, the Teague doctrine has been "mystifying . . . from its inception." And in May 2021, the Court walked back the thirty-year-old doctrine in Edwards v. Vannoy, recognizing that one of the two Teague exceptions is "moribund" and "retain[s] no vitality." Though scholars have previously criticized the Teague doctrine and offered alternatives, this Note is the first to provide a substantial critique of the Teague doctrine's underlying assumptions regarding finality and comity interests. After comparing related finality and comity doctrines, this Note argues that the current Teague doctrine overvalues both interests, and a reimagining of the retroactivity framework should begin with reconsidering the foundational roles of those interests. This Note proposes one such framework--one that is more generous about granting the retroactivity remedy for violations of constitutional rights. Under this proposed framework, new constitutional rules should always apply retroactively on state collateral review and federal habeas review of federal convictions. The proposed framework also revises the Teague new-rule doctrine and suggests that a state's discrimination against a federal right vitiates its comity interest, weighing in favor of the retroactivity remedy. This Note concludes with a discussion of Edwards v. Vannoy, suggesting that the case highlights the flaws of the Teague doctrine and the need to rethink the foundations of retroactivity and to reground the doctrine in first principles. [ABSTRACT FROM AUTHOR]

The article focuses on conviction in the Immigration and Nationality Act (INA) which implicitly leaves room for courts to inquire into procedural fairness underlying a foreign conviction and evaluating the sufficiency of foreign convictions in the contexts of extradition and international comity.

A chorus of critics, led by the late Justice Scalia, have condemned the practice of federal courts' refraining from hearing cases over which they have subject-matter jurisdiction because of international comity--respect for the governmental interests of other nations. They assail the practice as unprincipled abandonment of judicial duty and unnecessary given statutes and settled judicial doctrines that amply protect foreign governmental interests and guide the lower courts. But existing statutes and doctrines do not give adequate answers to the myriad cases in which such interests are implicated given the scope of present-day globalization and features of the U.S. legal system that attract foreign litigants. The problem is ubiquitous. For instance, four cases decided in the Supreme Court's 2017 October Term raised international comity concerns and illustrate the Court's difficulty grappling with these issues. This Article cuts against prevailing academic commentary (endorsed, to some extent, by the newly-minted Restatement (Fourth) of the Foreign Relations Law of the United States) and presents the first sustained defense of the widespread practice of international comity abstention in the lower federal courts--a practice the Supreme Court has not yet passed on but will almost certainly decide soon. At the same time, we acknowledge that the critics are right to assert that the way lower courts currently implement international comity--through a multi-factored interest analysis--is too manipulable and invites judicial shirking. Consequently, we propose a new federal common law framework for international comity based in part on historical practice from the Founding to the early twentieth century when federal courts frequently dealt with cases implicating foreign governmental interests with scant congressional or executive guidance, primarily in the maritime context. That old law is newly relevant. What is called for is forthright recognition of a federal common law doctrine of international comity that enables courts to exercise principled discretion in dealing with asserted foreign governmental interests and clears up conceptual confusion between prescriptive and adjudicative manifestations of international comity. [ABSTRACT FROM AUTHOR]

The article explores how a tribe's rejection of same-sex marriage may divest a surviving spouse of an intestacy share on account of sex and how that conflicts with federal and state law that prohibits such discrimination. It considers the implications of the refusal to recognize same-sex marriage in intestacy proceedings and need to consistent with tribal sovereignty, tribes should grant full faith and credit or comity to same-sex marriages performed outside the tribe's jurisdiction.

The article focuses on enumerated-rights reading of the Privileges or Immunities Clause and right protected by the enumerated Comity Clause involves nothing more than the right of sojourning citizens to receive equal treatment and uncover the original history of the Fourteenth Amendment.

Federal abstention is a judicially created doctrine by which a federal court declines to exercise its jurisdiction over a case and controversy properly before it. Abstention is aimed at preserving the balance of sovereignty allocated to the states and federal government as envisioned by the Framers. Of the various iterations of abstention, Younger abstention perhaps does the most to protect this balance. Despite its importance in maintaining principles of federalism, lower courts have struggled to come up with a consistent approach to Younger. This Recent Development highlights two U.S. Circuit Courts--the Seventh and Ninth--and their divergent approaches to Younger abstention and proposes that the Seventh Circuit's approach is correct as it effectively advances the principles of federalism and comity that Younger abstention was designed to protect in the first place. [ABSTRACT FROM AUTHOR]

The article focuses on decision of the U.S. Supreme Court in the case WesternGeco v. ION Geophysical Corp. to uphold lost profit damages predicated on foreign, non-infringing actions following patent liability. It mentions Supreme Court's use of RJR Nabisco framework in rebutting the presumption against extraterritoriality opens foreign lost profit liability across patent infringement. It also mentions comity concerns into a policy-driven proximate cause analysis for future infringement cases.

The article focuses the compression of the hiring practices and preferences of local residents in India and the U.S. Topics include the constitutionality of vertical reservations for domicile and justifications given by states; beginning of horizontal reservations for women and physically handicap persons in India; and about the Privileges and Immunities of citizens in the several states and the Equal Protection Clause.

The article discusses America's originalism form of constitutional interpretation and the author's claim that the original public meaning of the U.S. Privileges and Immunities Clause did provide protection against regulatory takings. American nuisance and eminent domain laws are addressed, along with the Fourteenth Amendment to the U.S. Constitution, judicial review in the country, and the views of American Supreme Court Justice Clarence Thomas in the Murr v. Wisconsin regulatory takings case.

Federal sentencing enhancements force federal courts to delve into the world of substantive state criminal law. Does a state assault statute require violent force or just offensive touching? Does a state burglary statute that criminalizes breaking into a car or a house require prosecutors to charge the location entered as an element? Whether a person with prior convictions convicted of violating 18 U.S.C. § 922(g) faces a minimum sentence of fifteen years and a maximum of life imprisonment rather than a maximum sentence of ten years turns upon the answers to these questions. Yet, state law often does not resolve the uncertainties which exist at the edges of their criminal code. When a federal sentence turns upon a state crime, these uncertainties must be resolved by federal judges, leaving federal courts in the position of attempting to prophesize state law. As a result, two problems arise: a federal court may get a particular case wrong, sentencing a defendant to a sentence not properly applicable, and federal courts may split on the meaning of a state law, with no opportunity to get an authoritative ruling unless the precise issue arises in a new state case. There is a better way. This problem was faced once before, in the civil context. An elegant solution was found: certification. The already constructed certification framework can and should be utilized by federal courts facing unclear, unsettled, or unencountered questions of substantive state criminal law. This would solve the federalism and accuracy problems currently inherent in federal sentencing based upon prior state conviction. [ABSTRACT FROM AUTHOR]

The article focuses on the development of merits review after Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) which address petitions for a writ of habeas corpus by state prisoners. It mentions U.S. Supreme Court will decide this coming term in Wilson v Sellers by issuing a summary disposition affirming the decision of a lower court whose written opinion rejected the merits of the claim. It also mentions triplet heads of finality, comity, and federalism.

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The article discusses the consolidated litigation known as the Slaughter-House Cases from 1873 which deal with monopolies in New Orleans, Louisiana (NO) and a state statute granting a franchise to a privately-owned livestock slaughterhouse, and it mentions legal challenges under the Fourteenth Amendment to the U.S. Constitution which were pursued by various butchers and livestock dealers. The American Constitution's Privileges and Immunities Clause is examined, along with public health in NO.

Hin-Pro International Logistics Limited v CSAV is an important case in the areas of anti-suit injunctions, contractual interpretation and private international law. Despite the ambiguities surrounding the jurisdiction clause contained in the bills of lading, the Court of Appeal construed the jurisdiction clause as 'exclusive' in the context of a 'contractual background', and affirmed the continuation of the anti-suit injunction granted by the Commercial Court. It is argued that the approach of applying the common law principles of contractual interpretation to a bill of lading is questionable. The approach used to apply English private international law is problematic in a number of ways. There are legitimate reasons for concern that the doctrine of comity in English private international law may become undermined as a result. [ABSTRACT FROM AUTHOR]

The article discusses several aspects of what the author refers to as the fundamental unenumerated rights of individuals that are contained in the U.S. Constitution's (USC's) Ninth Amendment and the Privileges and Immunities Clause. The U.S. Supreme Court's jurisprudence is addressed in relation to the Due Process Clause in the USC's Fourteenth Amendment and the differences between implied and unenumerated rights. Cooperative federalism and several U.S. constitutional law cases are examined.

International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity--from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to the doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government's privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This Article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of international comity and a framework for analyzing its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge the myths that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch. [ABSTRACT FROM AUTHOR]

Kurt T. Lash’s The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014) defends the view that the Fourteenth Amendment’s “privileges or immunities of citizens of the United States” cover only rights enumerated elsewhere in the Constitution. My own book, however, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (2015), reads the Clause to guarantee equality broadly among similarly situated citizens of the United States. Incorporation of an enumerated right into the Fourteenth Amendment requires, I say, national consensus such that an outlier state’s invasion of the right would produce inequality among citizens of the United States. Lash and I agree about a great deal, but this Article provides a focused explanation of the clash between our two books. Searchable electronic databases have produced an amazing variety of new evidence and argument related to the Fourteenth Amendment’s original meaning and the enumerated-right controversy. Lash’s book vividly shows that there is an enormous amount that the last seventy years of discussion of incorporation failed to uncover. Here, I raise six problems for Lash’s enumerated-rights-only view: (1) the gulf between the constitutional needs of the Founding and Reconstruction; (2) the inherent unabridgeability of federally enumerated rights through state action; (3) textual and historical complications for sharply distinguishing Article IV from the Fourteenth Amendment; (4) equality-focused interpretations of the Louisiana Cession language and of the Privileges or Immunities Clause, explaining the Clause in terms of the Civil Rights Act of 1866; (5) 1866 disputes over voting rights and indefiniteness, incomprehensible on the enumerated-rights-only view; and (6) subsequent-interpretation evidence, especially the use of the enumerated-rights-only view against the Civil Rights Act of 1875. [ABSTRACT FROM AUTHOR]

The article discusses the various rationales that American courts have given for excluding corporations from protection under the U.S. Constitution's Privileges and Immunities Clause, and it mentions several U.S. Supreme Court cases such as Trustees of Dartmouth College v. Woodward, Blake v. McClung, and Paul v. Virginia which deal with the legal aspects of corporations. Discrimination against corporations is examined, along with state laws and violations of the U.S. Dormant Commerce Clause.

In Krys v Farnum Place, the Second Circuit ruled that, in a chapter 15 ancillary proceeding, a SIPA claim is within the territorial jurisdiction of the United States and its sale by the foreign representative must be subjected to review under Bankruptcy Code section 363. In so holding, the court vacated an earlier decision of the Bankruptcy Court, which held that that the SIPA claim was not within the territorial jurisdiction of the United States and that principles of comity could trump the requirements of section 363, as applied by section 1520. Two peculiarities in the facts limit the precedential impact of the decision: the claim sale agreement required approval by the Bankruptcy Court and the foreign court specifically deferred to the Bankruptcy Court to approve the sale. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Congress' power to define the privileges and immunities of American citizenship. The ratification of the Thirteenth Amendment to the U.S. Constitution (USC) is addressed, along with equality and the passage of America's Civil Rights Act of 1866. The Privileges and Immunities Clause contained in the Fourteenth Amendment to the USC is examined, along with positive law and natural rights such as property ownership. Several U.S. Supreme Court cases are also mentioned.

The article looks at the intergovernmental courtesy and deference in exercises for establishing laws related to comity in the U.S. Topics discussed include relationship between the states and the federal government over comity; intergovernmental duty in federal system for states; and federal courts' selective reliance on comity.

The article discusses the court cases Tiffany (NJ) LLC v. Qi Andrew and Gucci Am. Inc. v. Weixing Li regarding discovery of evidence. Topics include laws governing evidence disclosure abroad for use in litigations filed in the U.S., Chinese laws on judicial assistance and banking privacy, and use of the comity analysis in these cases.