Print

Abstention at the Border

The lower federal courts have been invoking “international comity abstention” to solve a range of problems in cross-border cases, using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s recent reemphasis on the federal judiciary’s obligation to exercise congressionally granted jurisdiction. Indeed, loose applications of “international comity abstention” risk undermining not only the expressed preferences of Congress, but the interests of the states as well.

This Article argues against “international comity abstention” both as a label and as a generic doctrine. As a label, it leads courts to conflate abstention with other comity doctrines that are not about abstention at all. And as a generic doctrine, it encourages judges to decline their jurisdiction too readily, in contrast to the presumption of jurisdictional obligation. In lieu of a single broad doctrine of “international comity abstention,” then, this Article urges federal judges to specify more narrow grounds for abstention in transnational cases—grounds that can be separately justified, candidly addressed, and analyzed through judicially manageable frameworks. For example, a primary basis for “international comity abstention” has been deference to parallel proceedings in foreign courts, a common problem that deserves its own dedicated analytical framework. A separate doctrine for deferring to integrated foreign remedial schemes may also be appropriate. Perhaps other limited bases for transnational abstention could be identified as well. The goal should not be a strict formalism that insists that judges’ hands are tied, but rather a channeling of judicial discretion so as to promote—rather than displace—interbranch dialogue about the proper role of comity in the courts.

The Government-Could-Not-Work Doctrine

The Supreme Court has recently declared that it is presumptively unconstitutional for the government to compel individuals to do or pay for things to which they have religious or political objections. Last Term, the Court applied this declaration to uphold the First Amendment arguments made by public-sector employees, and it appears poised to vindicate similar claims by religious objectors to antidiscrimination laws in the future. But this declaration is wrong. Indeed, throughout American history—from the Articles of Confederation through Lochner v. New York and Employment Division v. Smith, the Court itself has repeatedly rejected the notion that compulsory laws, in and of themselves, are presumptively unconstitutional.

This Article offers a novel examination of the history of challenges to compulsory laws inside and outside the context of the First Amendment. For centuries, the Supreme Court has faced hundreds of challenges to objectionable taxes, objectionable drafts, objectionable regulations, and objectionable funding conditions. With few exceptions, the Court has responded that the “government could not work” if it lacked the power to compel people to do things to which they objected. Although the Constitution prescribes many specific limits on the powers of the federal and state governments, the Constitution’s very purpose was to create a union that had the power to compel political minorities to accept the will of a political majority. Such a union would be incompatible with a governing document that prohibited officials from compelling people to take any action to which they religiously or politically objected—even when those objections were sincerely held.

Borrowing the Supreme Court’s own language, this Article calls the Court’s typical response the “government-could-not-work” doctrine, and conclude that objectionable compulsion, in and of itself, should not trigger the strict scrutiny of Abood v. Detroit Board of Education. Rather, compulsory laws should be treated the same as any other law, and analyzed for whether they are arbitrary, are discriminatory, or otherwise violate specific constitutional limits.

Predicting Enemies

Actors in our criminal justice system increasingly rely on computer algorithms to help them predict how dangerous certain people and certain physical locations are. These predictive algorithms have spawned controversies because their operations are often opaque and some algorithms use biased data. Yet these same types of predictive algorithms inevitably will migrate into the national security sphere as the military tries to predict who and where its enemies are. Because military operations face fewer legal strictures and more limited oversight than criminal justice processes do, the military might expect—and hope—that its use of predictive algorithms will remain both unfettered and unseen.

This Article shows why that is a flawed approach, descriptively and normatively. First, in the post-September 11 era, any military operations associated with detention or targeting will draw intense scrutiny. Anticipating that scrutiny, the military should learn from the legal and policy challenges that criminal justice actors have faced in managing the transparency, reliability, and lawful use of predictive algorithms. Second, the military should clearly identify the laws and policies that govern its use of predictive algorithms. Doing so would avoid exacerbating the “double black box” problem of conducting operations that are already difficult to legally oversee and contest, using algorithms whose predictions are often difficult to explain. Instead, being transparent about how, when, why, and on what legal basis the military is using predictive algorithms will improve the quality of military decision-making and enhance public support for a new generation of national security tools.

©Virginia Law Review Association. All rights reserved.