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Note, Beyond The Rhetoric Of Comparative Interest Balancing: An Alternative Approach To Extraterritorial Discovery Conflicts, Michael P. Scharf

Faculty Publications

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 decisionmaking 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 …