The Interest Approach to Choice of Law de Amos Shapira

The Interest Approach to Choice of Law: With Special Reference to Tort Problems

Amos Shapira

This book is based on a doctoral thesis submitted to Yale University Law School in 1968. I wish to acknowledge my deepest gratitude to my super visor in the writing of the thesis, Professor Ronald M. Dworkin, whose in sights and criticism have conspicuously contributed to the present work. Time and again I have been inspired by the ideas expressed by hirn both in personal discussions and in his Conflict of Laws and Jurisprudence courses. It has been my privilege also to have had Professors Leon S. Lipson and Guido Calabresi as supervisors. I have derived great benefit from their sug gestions. A sincerely feIt appreciation is expressed to all three persons. A special debt of gratitude is owing to the Yale Law School for the gener ous financial support extended to me. I also wish to record my indebtedness to the Hebrew University of Jerusalem and to Tel-Aviv University for their financial assistance. I am extremely grateful to Mr. Michael Reiss, '68 Yale Law School for his significant editorial assistance. Thanks are also due to my wife Ettie for invaluable help and encouragement. Finally, I wish to thank the publishers for their courtesy and cooperation. A.S.

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Cuprins

I. The Traditional Approach to Choice of Law.- A. The General Theory.- B. The Gap between Judicial Doing and Reasoning — “Escape Devices”.- C. Critical Evaluation of the Traditional Approach.- D. The Traditional Tort Choice-of-Law Rules.- II. Three Preliminary Clarifications: Transnational Versus Interstate Conflicts, the Lex Fori Threshold and Foreign Law as Factual Datum.- A. Transnational Versus Interstate Conflicts.- B. The Lex Fori Threshold.- C. Foreign Law as Factual Datum.- III. The Concept of Public and Private Interests in the Choice-of-Law — Process — Perspectives and Values.- A. The Concept of Public Interests.- B. The Concept of Private Interests.- C. An Interest-based Approach — The Values of Judicial Creativity, Concretization and Rationality, “Domestication” of the Choice Process and Functionalism in lieu of Territorialism.- IV. Public Interests Peculiar to Conflicts Contexts: Transnational Concerns.- A. The Concept of Transnational Concerns.- B. Transnational Concerns in Reciprocal Accommodation of Public Interests and Uniform Treatment of Distinctive Problem-Areas.- V. The Process of Interest Analysis-Ascertainment of Relevant Interests.- A. Ordinary and Peculiar Aspects of the Interpretive Function.- B. Factors and Guidelines in the Ascertainment of Relevant Interests.- C. Practical Complexities in the Ascertainment of Relevant Interests.- VI. The Process of Interest Analysis-Elimination and Resolution of Conflicts of Interests.- A. Elimination of Apparent-but-not-real Conflicts of Interests.- B. Resolution of True Conflicts of Interests.- C. Recourse to the Lex Fori as a Last Resort in Conflicts Adjudication.- VII. The Prospects of Standardization in the Process of Interest Analysis.- A. New Choice-of-Law Standards — Fancies andFacts.- B. Avenues of Standardization: Accumulation of Interest-Analyses Data, Judicial and Legislative Scope-Delimitation of Legal Prescriptions, and International Legislation in Distinctive Problem-Areas.- Appendix. An Exercise in Interest Analysis.- Selected Bibliography.- General Index.