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Rights, Fairness, and Choice of Law, 98 Yale Law Journal 1277 (1989)


One is hard put to find a serious discussion of "rights" in the current
academic literature or judicial discussions of choice of law. With a few
notable exceptions, the academic talk is all about "policies," or "interests,"
or "functional analysis." Even in leading constitutional decisions,
the validity of the state's claim to apply its own law is measured primarily
in terms of the adequacy of its interest in having its law applied, appraised in light of the contacts between the state and the controversy.
Talking about rights is like talking about perpetual motion machines,
phlogiston, or faeries. "[O]ne may now wonder," wrote David Cavers in
his seminal article A Critique of the Choice-of-Law Problem, "how any
juristic construct such as 'right' could have been accepted as fundamental
in the explanation of any important aspect of judicial activity."

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