The Public-Private Distinction in the Conflict of Laws
24 Pages Posted: 30 May 2008 Last revised: 20 Feb 2013
Date Written: 2008
This paper examines the public-private distinction in the conflict of laws. Conflicts rules have long influenced the ways in which courts have interpreted the extraterritorial reach of regulatory statutes, but two distinctions remain. The first is the external-internal distinction. In private law cases the court determines the applicable law by looking to rules external to the substantive law, while in public law cases the court determines applicability by looking internally for the law's intent. The second is the which-whether distinction. In private law cases the court asks which of two or more substantive laws applies, while in public law cases the court asks only whether the forum's substantive law applies. This paper argues that neither distinction is justifiable.
Keywords: conflicts, extraterritorial, public-private
JEL Classification: K13, K21, K33, K41
Suggested Citation: Suggested Citation