Tuesday, November 01, 2005

Alito and Deference to Foreign Courts

Roger and I can now proudly boast we have provided the most comprehensive analysis of the Alito record on international and comparative law in the blogosphere. But this record is pretty thin, I have to admit. Which is why I am thankful that John Brewer, an attorney in Manhattan and a former Alito clerk, alerts me to this Alito dissent in Dailey v NHL, 987 F.2d 172 (3d Cir. 1993) involving a ERISA lawsuit by retired National Hockey League players against their pension administrators (the NHL). What does this case reveal about Alito's internationalist temperament?

Not a tremendous amount, but it does suggest Alito will not go out of his way to defer to a foreign court proceeding, especially where Congress has spoken by statute to the issue. The majority of the panel refused to allow the district court to exercise jurisdiction in the ERISA case in deference to parallel proceedings already occurring in Canada. It invoked the Princess Lida doctrine, which is deference doctrine previously applied only to competing state and federal jurisdictional claims. Judge Alito rejected applying that same doctrine to competition between federal and foreign courts, writing that the majority opinion's deference to Canadian proeceedings "has abrogated federal statutory rights."

In other words, Alito is unlikely to be sympathetic to claims that the U.S. Supreme Court should go out of its way to extend comity doctrines to require deference to foreign and international courts, at least in cases where Congress has spoken directly to the issue at hand.

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