Copyright (c) 1996 Temple University of the Commonwealth System of Higher Education
Temple Law Review
ARTICLE: THE CASE OF THE MISSING DECISION: WHEN WILL PENNSYLVANIA SOLVE THE MYSTERY OF ITS "FLEXIBLE" CHOICE-OF-LAW ANALYSIS?
69 Temp. L. Rev. 655
Janet V. Hallahan *
The method by which a court determines which state's law will govern the issues in a particular case remains, in many jurisdictions, one of the great unsolved mysteries of the legal world. 2 Courts throughout the country have recognized the need for choice-of-law analyses to treat the interests of the parties fairly, but whether or not modern-day choice-of-law theories do so is far from an open-and-shut case. 3 Some jurisdictions, like Pennsylvania, in their search to ensure the fairness of the choice-of-law process, have instead transformed the choice-of-law analysis into a cloak and dagger mystery, scattering clues like any good whodunit, but failing to tell all in the final chapter. 4
Although in theory Pennsylvania's "policy-oriented" choice-of-law test may appear to be a feasible solution to the choice-of-law analysis, in practice it has proven inconsistent and virtually impossible to apply. 5 Some courts have held that the test is the Restatement (Second) of Conflict of Laws ("Second Restatement"); 6 others have construed it to follow Professor David F. Cavers's "principles of preference;" 7 still others have combined the Second Restatement with some kind of "interest analysis" theory; 8 and yet others have ignored existing theories altogether and created their own "interest analysis." 9 Moreover, while some courts have held that Pennsylvania requires a threshold finding that a "true conflict" exists between the relevant states' laws before its choice-of-law principles apply, few agree what a "true conflict" means. 10 And not only do courts disagree which choice-of-law ...
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