Foreign policy abstention is a novel and unsettled doctrine in international litigation. Unlike other established international litigation abstention doctrines, foreign policy abstention permits courts to decline jurisdiction when adjudication implicates significant foreign policy concerns. First invoked in 2004, the doctrine has since appeared sporadically in case law, most recently in the Eighth Circuit’s decision in Reid v. Doe Run Resources. Yet, its analytical framework remains muddy and amorphous, leading to inconsistent judicial application.
This Note examines one critical factor courts consider when determining whether to apply the foreign policy abstention: the strength of U.S. foreign policy interests in the litigation. In making this determination, courts value the U.S. State Department’s views, expressed through amicus briefs or Statements of Interest (SOIs). Courts have interpreted the State Department’s failure to file a brief to mean that the U.S. government does not have strong foreign policy interests in the litigation. And because the Department is sporadic and inconsistent in its filing practices, the judiciary’s inferences from the Department’s silence have exacerbated doctrinal muddiness in foreign policy abstention.
This Note argues that courts’ interpretations of State Department silence may not accurately reflect the U.S. government’s interests, as the Department’s inaction may stem from various reasons unrelated to the absence of foreign policy interests, including a mere lack of knowledge that the litigation exists at all. To address this issue, this Note discusses two potential solutions. It first considers an agency-implemented policy requiring the State Department to file an SOI in every case invoking foreign policy abstention. This, however, would place an undue burden on the Department. A more practical alternative is the adoption of a procedural rule mandating that parties notify the State Department when they invoke foreign policy abstention, ensuring the State Department is aware of the litigation and provided with an opportunity to speak. Under this framework, if the Department remains silent after notification, courts could more justifiably presume that U.S. foreign policy interests are weak. This approach offers a pragmatic framework that balances the judiciary’s need for clarity with the State Department’s administrative constraints.
By clarifying the State Department’s role and the weight of its statements, this approach seeks to promote consistency, transparency, and analytical rigor in invocations of the foreign policy abstention doctrine.