Frontiers of legality: Understanding the public policy exception in choice of law
Bibliographic record
Abstract
The public policy exception is a notorious part of choice of law doctrine. The exception allows courts to refuse to apply foreign law selected by first-order choice of law rules that violates the forum’s fundamental principles of morality and justice. As a doctrinal matter, public policy is a well-established part of the architecture of choice of law. But scholars have struggled to understand why it should be part of choice of law doctrine, given the normative structure of the field; how to differentiate between the fundamental and non-fundamental norms that inform its use; and how to understand the leading public policy cases in a coherent way. In this article, I offer a solution to these three problems. I argue we should reconceptualize the exception as a means by which courts can analyze the substance of foreign law to ensure that it complies with the rule of law, and thus can be applied ‘as a law’ in the forum. More specifically, public policy is how common law courts ensure that any foreign law they apply complies with the distinctive substantive requirements of the rule of law in the common law tradition – what is known as the common law constitution. Public policy thus defines the frontiers of legality in the common law tradition, and defends against threats from the rule of law that come from beyond the border. This approach justifies the inclusion of the exception in choice of law doctrine, given the field’s other normative commitments. It can also help distinguish between the fundamental and non-fundamental norms that should define the ambit of public policy. Finally, this approach may offer a coherent account of the doctrine, as numerous leading cases can be reinterpreted to track the fundamental principles of legality that inhere in the common law constitution.
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How this classification was reachedexpand
Full frame distilled prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.
Codex and Gemma teacher scores by category
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.001 | 0.000 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.000 |
| Science and technology studies | 0.001 | 0.000 |
| Scholarly communication | 0.000 | 0.001 |
| Open science | 0.000 | 0.000 |
| Research integrity | 0.000 | 0.000 |
| Insufficient payload (model declined to judge) | 0.001 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one teacher head, not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".