Cardozo Law Review de•novo
Volume
2019
First Page
106
Last Page
122
Publication Date
2019
Document Type
Essay
Abstract
In this Essay, the authors argue that the Delaware Chancery Court's opinion in Sciabacucchi v. Salzberg, which appeals to territoriality as a decisive “first principle,” is deeply misguided. The notion that each state’s legislative jurisdiction is bounded by its territorial limits is a formalist and arbitrary notion that has been broadly rejected by various jurisdictions, including Delaware. Moreover, an opinion truly grounded in “first principles” would take comity—the basic framework for choice of law in the early Republic—as its lodestar, necessitating a functionally and strategically sensitive approach to determining the validity of the federal forum provisions. In this case, comity would recommend not invalidating the forum provisions, as the Chancery Court did, but rather dismissing the suit for lack of ripeness.
Keywords
Business and the Law, Constitutional Law, Jurisdiction, Securities Law, Legal Practice and Procedure, Arbitration, Dispute Resolution
Recommended Citation
Daniel B. Listwa & Bradley J. Polivka,
First Principles for Forum Provisions,
2019
Cardozo L. Rev. De-Novo
106
(2019).
Available at:
https://larc.cardozo.yu.edu/de-novo/68
Included in
Constitutional Law Commons, Dispute Resolution and Arbitration Commons, Jurisdiction Commons, Securities Law Commons
