Duquesne Law Review


The decision in Cipolla v. Shaposka should be pleasing to the "enlightened territorialists" such as Professor Cavers and Professor Twerski. For an "anti-territorialist" such as the present writer, whose approach to choice of law is based primarily upon interest analysis and considerations of fairness applied in the context of particular cases, it has a somewhat different effect. It forces him to reconsider whether there is any validity to the "territorial imperative," to which, in the past, either out of excess timidity or some notion of constitutional compulsion, he has made some obeisance. The results of that reconsideration are contained herein. An approach to conflicts problems based upon interest analysis and considerations of fairness necessarily recognizes the significance of territorialism in two important respects. First it recognizes that the occurrence of an act within a state may give rise to a strong interest on the part of that state in implementing its admonitory and regulatory policies. Secondly it recognizes that in consensual transactions, where there have been extensive factual connections with a particular state, the parties may have relied on the law of that state so that the application of any other law would defeat their legitimate expectations. To recognize the significance of territorialism in these two respects is, of course, fully consistent with, and indeed, is an integral part of the approach that I have been advocating. But there is a third situation in which I have grudgingly given in to territorialism to reach a result that is not consistent with interest analysis and party fairness -the situation presented in Cipolla v. Shaposka.

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