Brief of Professors William S. Dodge and Maggie Gardner as Amici Curiae in Support of Respondents, Hungary v. Simon & Germany v. Philipp

Abstract

This amicus brief of Professors William S. Dodge and Maggie Gardner was filed with the U.S. Supreme Court in support of respondents in Hungary v. Simon and Germany v. Philipp, two suits brought under the Foreign Sovereign Immunities Act’s expropriation exception for takings of property in connection with the Holocaust. The brief argues that the Supreme Court should not adopt the doctrine of prudential comity abstention urged by Hungary, Germany, and the United States. Federal courts have a fundament obligation to exercise the jurisdiction Congress has given them, subject to only limited exceptions. Prudential comity abstention, which weighs U.S. interests, the interests of foreign governments, and the adequacy of the foreign forum, is not a well-established doctrine of American law but was developed only recently by the Ninth and Eleventh Circuits. The doctrine is incompatible with the limits the Supreme Court has imposed on abstention. It is also highly discretionary and threatens to swallow up more narrowly circumscribed doctrines. If adopted in these cases, it would necessarily apply to private parties as well, with unpredictable consequences. But the Supreme Court need not adopt a new abstention doctrine because existing doctrines, including forum non conveniens, are sufficient to address comity concerns in cases like these.