Document Type
Essay
Abstract
Public international law primarily deals with the legal rights and duties of nations. But there is another body of international law—private international law—that seeks to coordinate private legal rights and duties in cases that straddle national borders or involve citizens of different countries.
This law has a long history. But it really took off with the expansion of travel, communication, and trade in the nineteenth century. And American courts played an outsized role in its development. Because the constituent states of the United States were, in large part, understood as retaining the sovereignty of nations, American courts took private international law to be implicated in interstate cases too. As a result, they were forced to develop and apply this body of law much more than the courts of other nations. Indeed, in the nineteenth century the normal dependence of American cases on English precedents was often reversed: when a private international law issue came up, English courts looked to the Americans. This influence extended even to civil law jurisdictions, where Justice Joseph Story’s treatise on the topic, first published in 1834, was highly influential.
By the early twentieth century, private international law was considered of sufficient importance to legal education in this country that a class on the topic was invariably offered. Indeed, it was not unusual for it to be a required course in the final year. This was not just because it was important for practitioners. It also functioned as a course on jurisprudence, exploring the law’s foundations and structure. It is not surprising, therefore, that American philosophers of law as diverse as Wesley Newcomb Hohfeld, the American legal realists, and Ronald Dworkin started out working on it.
Private international law can reveal law’s structure by forcing a court to dissociate—and assign to different jurisdictions’ authority—legal elements that tend to be conjoined (and so conflated) in a fully domestic case. And, by taking a panoptic perspective on multiple legal systems, it can bring into focus questions of law’s ultimate source. When a jurisdiction’s law extends to a fully local transaction, questions of its validity tend to stop with the highest domestic law—the jurisdiction’s constitution and the domestic legal practices keeping it in force. But private international law may also ask whether a law can validly extend to an interjurisdictional transaction even when such domestic requirements are satisfied.
Private international law can also inspire reflection on fundamental legal categories—such as tort, contract, property, status, and procedure. This is because traditional choice-of-law methods (still used by a handful of states in this country) see a jurisdiction’s regulatory power as depending on the category within which the issue falls. To be sure, more modern methods don’t care as much about categorization. Their primary concern is usually whether the competing laws, when properly interpreted, extend to the interjurisdictional facts. But here too private international law has profound implications, for it can shed a new and disorienting light on questions of statutory interpretation.
Recommended Citation
Michael S. Green,
A Plea for Private International Law (Conflict of Laws),
100
Notre Dame L. Rev. Reflection
73
(2025).
Available at:
https://scholarship.law.nd.edu/ndlr_online/vol100/iss2/1
