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The Public-Private Distinction in the Conflict of Laws

24 Pages Posted: 30 May 2008 Last revised: 20 Feb 2013

William S. Dodge

University of California, Davis - School of Law

Date Written: 2008

Abstract

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

Dodge, William S., The Public-Private Distinction in the Conflict of Laws (2008). 18 Duke Journal of Comparative & International Law 371 (2008). Available at SSRN: https://ssrn.com/abstract=1139102 or http://dx.doi.org/10.2139/ssrn.1139102

William S. Dodge (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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