The Choice of Law Process: Territorialism and Functionalism
![handle is hein.journals/wmlr22 and id is 237 raw text is: THE CHOICE OF LAW PROCESS: TERRITORIALISM AND
FUNCTIONALISM
JEFFREY M. SHAMAN*
For at least fifty years, American legal scholars have engaged in
intense debate concerning the proper methodology by which choice
of law decisions should be made. Beginning with the works of Wal-
ter Wheeler Cook,1 Ernest Lorenzen,2 and David Cavers,3 a sub-
stantial body of legal criticism was mounted against the traditional
choice of law schema that prevailed in the courts and was en-
shrined in the first Restatement.4 This criticism culminated in the
seminal work of Brainerd Currie,5 which not only took exception to
the traditional approach, but also proposed a new theory to replace
it. Currie's governmental interest analysis, developed in the
1950's and 1960's, has garnered strong praise from most choice of
law scholars,6 although it has been assailed by a small minority of
scholars who defend a revised version of the traditional approach.
*B.A., Pennsylvania State University, J.D., University of Southern California; LL.M., Ge-
orgetown University. Professor of Law, DePaul University College of Law.
1. See W. CooK, THE LOGICAL AND LEGAL BASES OF THE CONFLICT OF LAWS (1942).
2. See E. LORENZEN, SELECTED ARTICLES ON THE CONFLICT OF LAWS (1947).
3. See Cavers, A Critique of the Choice-of-Law Problem, 47 HARv. L. REV. 173 (1933).
4. See RESTATEMENT OF CONFLICT OF LAWS (1934).
5. See B. CURRIE, SELECTED ESSAYS ON THE CONFLICT OF LAWS (1963).
6. See, e.g., R. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS 4-5, 39, 201-04 (1971);
Baade, Counter-Revolution or Alliance for Progress? Reflections on Reading Cavers, The
Choice-of-Law Process, 46 TFx. L. REV. 141 (1967); Baxter, Choice of Law and the Federal
System, 16 STAN. L. REv. 1 (1963); Horowitz, The Law of Choice of Law in California-A
Restatement, 21 U.C.L.A. L. REv. 719 (1974); Kanowitz, Comparative Impairment and Bet-
ter Law: Grand Illusions in the Conflict of Laws, 30 HASTINGS L.J. 255 (1978); Kay, Com-
ments on Reich v. Purcell, 15 U.C.L.A. L. REv. 584 (1968); McDougal, Comprehensive In-
terest Analysis Versus Reformulated Governmental Interest Analysis: An Appraisal in the
Context of Choice-of-Law Problems Concerning Contributory and Comparative Negligence,
26 U.C.L.A. L. REV. 439 (1979); Sedler, The Governmental Interest Approach to Choice of
Law: An Analysis and a Reformulation, 25 U.C.L.A. L. REV. 181 (1977); Traynor, Is This
Conflict Really Necessary?, 37 Tax. L. REv. 657 (1959).
7. See W. REESE & M. ROSENBERG, CASES AND MATERIALS ON CONFLICT OF LAWS 523-25
(6th ed. 1971); Twerski, Enlightened Territorialism and Professor Cavers-The Penn-
sylvania Method, 9 DuQ. L. REv. 373 (1971) [hereinafter cited as Twerski, Enlightened Ter-
ritorialism]; Twerski, Neumeier v. Kuehner: Where Are the Emperor's Clothes?, 1 HOFSTRA
227](ViewImageLocal?handle=hein.journals/wmlr22&div=16&collection=&method=preview&ext=.png&size=3)
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The Choice of Law Process: Territorialism and Functionalism
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