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Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd.

  • Kristen E. Eichensehr (a1)
Extract

When a foreign country's law is relevant to a case in U.S. federal court and the foreign country files an official statement about the meaning of its law, how should U.S. courts treat the foreign government's representations? In Animal Science Products, Inc. v. Hebei Welcome Pharmaceuticals Co., the Supreme Court of the United States held that “[a] federal court should accord respectful consideration to a foreign government's submission, but is not bound to accord conclusive effect to the foreign government's statements.” In so doing, the Supreme Court settled a disagreement between the courts of appeals and reversed an opinion of the Second Circuit that had given conclusive effect to the Chinese government's representations about its domestic law. Animal Science Products provides important guidance to federal courts faced with increasingly frequent filings by foreign governments, but it leaves unresolved significant questions about deference to foreign sovereign amici and preserves existing debates about the nature of “respectful consideration.”

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References
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1 Animal Sci. Prod., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865, 1869 (2018).

2 15 U.S.C. § 1.

3 Brief of Amicus Curiae the Ministry of Commerce of the People's Republic of China in Support of the Defendants’ Motion to Dismiss the Complaint, In re Vitamin C Antitrust Litig., 584 F. Supp. 2d 546 (E.D.N.Y. 2008), 2006 WL 6672257.

4 Id. at 5–6.

5 See In re Vitamin C Antitrust Litig., 584 F. Supp. 2d at 554–55.

6 Id. at 556; see also Ministry of Commerce Amicus Brief, supra note 3, at 2–3.

7 In re Vitamin C Antitrust Litig., 584 F. Supp. 2d at 557.

8 In re Vitamin C Antitrust Litig., 810 F. Supp. 2d 522 (E.D.N.Y. 2011).

9 Id. at 561 (quoting Rule 44.1).

10 Id. at 551.

11 Id. at 550.

12 Id. at 552.

13 Id. at 525.

14 In re Vitamin C Antitrust Litig., 837 F.3d 175, 179 (2d Cir. 2016), vacated and remanded sub nom. Animal Sci. Prod., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865 (2018).

15 Id. at 182.

16 Id. at 189.

17 315 U.S. 203 (1942).

18 European Convention on Information on Foreign Law, opened for signature June 7, 1968, ETS No. 062; Inter-American Convention on Proof of and Information on Foreign Law, opened for signature May 8, 1979, OAS Treaty Series No. 53.

19 Eichensehr, Kristen E., Foreign Sovereigns as Friends of the Court, 102 Va. L. Rev. 289, 303 n. 67 (2016) (chronicling increases in foreign sovereign amicus briefs in the Supreme Court).

20 See In re Vitamin C Antitrust Litig., 837 F.3d at 189, 191 n.10.

21 See Docket, Animal Sci. Prods. v. Hebei Welcome Pharm. Co., No. 16-1220, at https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/16-1220.html (entries for Mar. 22 and Apr. 13, 2018).

22 The Supreme Court has granted foreign government amici oral argument time in several cases, including, for example, Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 245 (2004) (European Commission), and Air France v. Saks, 470 U.S. 392, 393 (1985) (France).

23 See Dodge, William S., International Comity in American Law, 115 Colum. L. Rev. 2071, 2095 (2015) (chronicling the rise of “public rationales” for comity, “like respect for foreign sovereignty and the fostering of friendly relations”).

24 See Eichensehr, supra note 19, at 351–55.

25 In re Vitamin C Antitrust Litig., 584 F. Supp. 2d at 552.

26 In re Vitamin C Antitrust Litig., 837 F.3d at 180.

27 Id. at 180 n. 5.

28 Eichensehr, supra note 19, at 306 & n. 85.

29 Transcript of Oral Argument, Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865 (2018) (No. 16-1220), 2018 WL 1932827, at *26.

30 Stephen Breyer, The Court and the World: American Law and the New Global Realities 133 (2015).

31 In re Vitamin C Antitrust Litig., 837 F.3d at 190–91.

32 Skidmore v. Swift, 323 U.S. 134, 140 (1944); cf. Eichensehr, supra note 19, at 364 (suggesting that courts use Skidmore-like factors to evaluate foreign sovereign amicus briefs).

33 Skidmore, 323 U.S. at 140.

34 The opinion does not specify the origin of the “respectful consideration” standard, which the Court has also used in contexts other than Skidmore, including to describe the deference due to the opinions of state attorneys general about state law, see p. 1874, and to international court interpretations of treaties, see Breard v. Greene, 523 U.S. 371, 375 (1998).

35 Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). U.S. courts give agency statutory interpretations Chevron deference when Congress has granted the agency authority to promulgate “rules carrying the force of law,” and the interpretation at issue “was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 227 (2001). Chevron is a stronger form of deference than Skidmore. At step one, the court asks “whether Congress has directly spoken to the precise question at issue,” and if so, it “give[s] effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43. If, however, the statute is ambiguous, then at step two, the court will defer to the agency's reasonable interpretation, even if the interpretation is not, in the court's view, the best interpretation. Id. at 843.

36 See Transcript of Oral Argument, supra note 30, at *7–*9 (quoting Justices Gorsuch and Kennedy raising analogies to Chevron deference and conclusive deference to state supreme courts); id. at *31–*36 (quoting Justice Alito raising deference to U.S. government agencies); id. at *45 (quoting Justice Breyer discussing analogies to state supreme court conclusive deference, Chevron deference, and Skidmore deference).

37 Id. at *45.

38 Id. at *36 (quoting counsel for the United States).

39 Hickman, Kristin E. & Krueger, Matthew D., In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1251–59 (2007) (discussing debates about whether Skidmore is deference or not).

40 See Transcript of Oral Argument, supra note 30, at *61–*62 (quoting Chief Justice Roberts noting: “‘[W]ith all due respect’ usually means the person's about to say you don't know what you're talking about”).

41 For examples of justices questioning Chevron, see Pereira v. Sessions, 138 S. Ct. 2105, 2120–21 (2018) (Kennedy, J., concurring); Michigan v. EPA, 135 S. Ct. 2699, 2712–14 (2015) (Thomas, J., concurring); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–58 (10th Cir. 2016) (Gorsuch, J., concurring).

42 See, e.g., Air France v. Saks, 470 U.S. 392, 404 (1985).

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American Journal of International Law
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