Notre Dame Law Review

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Maggie Gardner*

The current Supreme Court has made clear that history matters.  But doing history well is hard.  There is thus an allure to old cases because they provide a link to the past that is more accessible for nonhistorian lawyers.  This Article warns against that allure by showing how the use of old cases also poses methodological challenges.  The Article uses as a case study the emerging doctrine of foreign relations abstention.  Before the Supreme Court, advocates argued that this new doctrine is in fact rooted in early admiralty cases.  Those advocates did not, however, canvass the early admiralty practice, relying instead on just a few citations and cherry-picked quotations.  And even if they had correctly identified the historical admiralty practice, they did not explain their logic for linking that practice to today’s doctrinal landscape.

This Article tackles both problems.  It draws on around 130 admiralty cases to paint a more complete picture of the admiralty courts’ jurisdictional discretion.  Of greatest relevance to today’s debates, the discretion to dismiss admiralty cases was limited to disputes involving no U.S. parties, and the views of foreign states were not dispositive.  The Article then considers how advocates and judges could make use of those admiralty cases today.  Old cases might be precedent that directly supports foreign relations abstention, original law that permits foreign relations abstention, or lived experience that helps justify foreign relations abstention.  Proponents seem to have in mind the first two uses of the historical admiralty practice, but only the third lends support to the emerging doctrine of foreign relations abstention.  Forthrightly embracing that third approach, however, would put foreign relations abstention at odds with the Supreme Court’s efforts to constrain prudential discretion in other contexts.

The Article does not try to choose among these different logics, nor does it critique the Court’s antiprudential turn.  Rather, it uses the debate over foreign relations abstention to illustrate how different approaches to historical caselaw can result in vastly different legal conclusions, and it warns against deploying a patina of doctrinal history to hide the very same judicial lawmaking that the Supreme Court has elsewhere carefully disclaimed.

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© 2024 Maggie Gardner.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, Cornell Law School.  For helpful conversations and comments, I am grateful to Emad Atiq, Charles Barzun, Pamela Bookman, Nathan Chapman, Trey Childress, Zachary Clopton, Harlan Cohen, Kevin Davis, Ashley Deeks, Deborah Dinner, Michael Dorf, Melissa Durkee, Sam Estreicher, Barry Friedman, Daniel Hemel, Andrew Kent, Tom Lee, Brian Richardson, and Aaron Simowitz, as well as the participants in the Cornell Faculty Workshop, the University of Virginia School of Law Faculty Workshop, the New York University School of Law Faculty Workshop, the international law colloquium of the University of Georgia School of Law, the Private International Law Roundtable at Fordham University School of Law, and the “Cloptomaniacs” working group.  I am especially indebted to Bill Dodge, who has shaped my understanding of international comity and with whom I submitted an amicus brief in support of the respondents in Republic of Hungary v. Simon, 141 S. Ct. 691 (2021), and Federal Republic of Germany v. Philipp, 141 S. Ct. 703 (2021).  Gabrielle Blom, Matthew Hornung, Cara Maines, and Ashley Stamegna provided excellent research assistance.