Note, Beyond the Rhetoric of Comparative Interest Balancing: An Alternative Approach to Extraterritorial Discovery Conflicts

11 Pages Posted: 4 Mar 2020

See all articles by Michael P. Scharf

Michael P. Scharf

Case Western Reserve University School of Law

Date Written: 1987

Abstract

In recognition of these deficiencies of comparative interest balancing, this note proposes not a better rule of law, but rather a more realistic and coherent process for extraterritorial decision-making in cases involving conflict between discovery and foreign blocking statutes. This note focuses on the distinction between interest balancing within the realm of "private law" and "public law." The critical difference lies in the fact that interest balancing in public law cases has operated as a means of asserting the primacy of U.S. interests'' in the guise of applying a "jurisdictional rule of reason." Although courts profess to apply a comparative interest balancing approach, in public law cases they actually exercise enforcement jurisdiction whenever more than a de minimis U.S. interest is present; consideration of foreign interests is rarely more than perfunctory. Only in private law cases are courts willing to defer to foreign interests. This note seeks to conform the courts' rhetoric to reality by providing an analytical framework which acknowledges that interest analysis has actually been, by necessity, unilateral and non-comparative.

Keywords: Extreaterrirotial Discovery

Suggested Citation

Scharf, Michael P., Note, Beyond the Rhetoric of Comparative Interest Balancing: An Alternative Approach to Extraterritorial Discovery Conflicts (1987). 50(3) Law and Contemporary Problems 95 (1987), Case Legal Studies Research Paper No. 1987, Available at SSRN: https://ssrn.com/abstract=3547546

Michael P. Scharf (Contact Author)

Case Western Reserve University School of Law ( email )

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