Annual Brainerd Currie Lecture: How Modern Choice of Law Helped to Kill the Private Attorney General

CitationVol. 64 No. 4
Publication year2013

Annual Brainerd Currie Lecture: How Modern Choice of Law Helped to Kill the Private Attorney General

Erin O'Hara O'Connor

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Annual Brainerd Currie Lecture

How Modern Choice of Law Helped to Kill the Private Attorney General

by Erin O'Hara O'Connor*

The law of unintended consequences pushes us ceaselessly through the years, permitting no pause for perspective.1


It is a great honor to be asked to deliver the second Annual Brainerd Currie Lecture at Mercer University School of Law.2 Brainerd Currie was an immensely influential law professor who is recognized as the leading scholar of conflict of laws in the twentieth century. Mercer has the distinction of being both Currie's law school alma mater as well as his first academic appointment, probably the two most significant intellectual influences on any scholar. More recently, Mercer has

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attracted other influential conflicts scholars and cheerleaders of the topic, including Dean Gary Simson, Larry Ribstein, Hal Lewis, and Bruce Posnak, among others. Thus, Mercer is a most fitting host for such an occasion.

The lecture provides an occasion to celebrate the highly influential work of Brainerd Currie in the area of conflict of laws. Currie formulated an entirely new approach to choice of law that has revolutionized the way courts and scholars think about the problem. With fifty years of hindsight, however, it is possible to look back on the influence of Currie's work with quite a bit more perspective than might have been possible earlier. With that perspective, I hope to argue that Currie's approach has had unintended and, for Currie, perverse consequences. Without thinking carefully about the long-term consequences of their choice-of-law decisions or how the choice-of-law landscape would play a role in the ever-increasing pressures presented by interstate and international trade, courts using modern approaches to choice of law have contributed to the demise of the private attorney general. In doing so, the choice-of-law revolution, which Currie sparked in order to enable states to more effectively promote state policies, ultimately has produced the opposite result.

This Essay will briefly explain Currie's approach to choice of law and its significant influence for modern choice-of-law approaches. It will then explain how one of those approaches, the Restatement (Second) of Conflict of Laws,3 both facilitated further state experimentation with choice-of-law policies and enabled private parties to gain some certainty regarding the governing law for contracts. This Essay will show how the choice-of-law clauses sanctioned in the Second Restatement work in tandem with other choice clauses to enable private parties to avoid undesired laws. Finally, this Essay will argue that the choice clauses have led to the demise of the private attorney general.


Brainerd Currie's best known intellectual contribution was offered a half century ago, when he proposed a revolutionary approach to choice of law.4 Choice of law addresses the question of what law governs a legal dispute involving people, things, or events that span two or more

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jurisdictions (namely states or nations) where each jurisdiction can legitimately claim sovereign authority over the dispute. The problem of how to allocate sovereign authority in these inter-jurisdictional disputes has challenged courts throughout recorded legal history.5

Currie's proposed approach, known as interest analysis, was well-timed. American conflicts scholars and judges had become frustrated with the Restatement (First) of Conflict of Laws6 formalistic, rules-based approach to choice of law.7 At root, the First Restatement shared the virtues and vices of formalism. On the one hand, the rules were designed to be simple and clear, and therefore (at least in theory), capable of being uniformly applied across United States courts. As part of that simplicity, the applicable law was typically determined according to a single connecting factor, such as the location of property,8 an injury,9 or the making of a contract.10 On the other hand, the simple rules often seemed arbitrary because they failed to produce sensible results in a world where real people became embroiled in locationally complicated relationships.11 Moreover, the rules sometimes failed to

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produce clear results, effectively undermining the uniformity or predictability that justify a rules-based treatment of choice of law.

Although judges often found the rules unsatisfactory, as a group they generally lacked the time and inclination to figure out a sensible alternative approach.12 After all, choice of law is, or at least should be, a preliminary procedural question to be decided in pretrial hearings. To most people, even most lawyers, the choice-of-law question seems technical and uninteresting. Indeed, even though choice of law functionally allocates sovereign authority, in most states the general question has not even attracted the attention of the legislature. Most academics view the choice-of-law question as similarly dull and unworthy of sustained attention. Mercer is a distinct exception in that it has a history of attracting scholars who are drawn to the topic and understand its importance. In most other corners of the country, however, choice of law is plagued by what I will call "the Snooze Factor."

Currie offered a dramatically different concepcion of how courts should treat choice-of-law issues. Rather than blindly following arbitrary rules, Currie thought that courts should use choice-of-law principles designed to effectuate state policies.13 After all, given that state laws are tools designed to further state policies, exercising sovereign authority can be justified only when doing so serves to further those policies. Differing state laws typically reflect differing policy priorities, and Currie advocated that a court should first determine the policy that each state is attempting to further and then determine whether, given the locational facts of a case, the policies of each state are in fact implicated.

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If a state's policies are not implicated (for example, if state X attempts to ensure that its injured citizens are compensated, but the plaintiff is not from state X), then that state's law need not apply to resolve the dispute. To Currie, the choice-of-law inquiry could be simplified by eliminating disinterested states from the consideration.14 When a state's policies are implicated, then its policies can be furthered through application of that state's law.

As a general conceptual matter, Currie's approach appealed to many. Judges began to experiment with the approach.15 Scholars applauded the innovation and offered their own refinements and tweaks for dealing with difficult fact patterns.16 In particular, William Baxter and other scholars offered alternative solutions to the situation where more than one connected state could claim a legitimate interest in having its law apply.17

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Currie's interest analysis was not universally embraced, however. For example, some scholars charged that Currie's definition of state interests was too parochial because he assumed that states had an interest only in protecting or otherwise aiding their own citizens.18 Others expressed concern over Currie's singular focus on state interests; they argued forcefully that advancing state interests was just one of several purposes to be furthered with choice of law.19 Several scholars offered alternative proposals for choice of law, some of which were the source of court experiment.20

For one who believes that optimal public policy is furthered with a robust intellectual marketplace of ideas, choice of law enjoyed a happy state during the course of the last half century. In this ideal state, the generation of and experimentation with diverse solutions should produce an environment where one proposal stands out as superior to others.21 At a minimum, one would hope that experimentation with choice of law would generate consensus regarding the basic approach even though states might adopt variation regarding specific problems, reflecting the difficulty of satisfactorily resolving some choice-of-law problems. Our federal system might have proven specially adapted to help achieve optimal choice-of-law reform, whether the goal of choice of law was efficiency, fairness, or something else. But, alas, this Utopian fairy tale does not reflect the realities of choice of law in our federal system.

Choice of law in the United States has been chaotic since Currie offered his proposed treatment of the topic. A large majority of states

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(although not all) have abandoned the First Restatement and replaced it with one or more distinct approaches to choice of law. Many have adopted Currie's interest analysis. Others have moved toward a "comparative impairment," "better law," forum law, or European-style statutory approach to choice of law.22 Although these other approaches to choice of law are distinct, embedded in many of them is a type of interest analysis. The chaos in choice of law does not merely result from states having adopted differing approaches to choice of law. Even within individual states it is commonly impossible to predict what law will be applied in an interstate case. In some states, the actual approach adopted has remained somewhat uncertain. The movement away from the First Restatement was typically announced through state court decision, but choice of law is a technical, procedural issue that rarely sits at the forefront of a state supreme court's agenda (the Snooze Factor), and as a result, the clarification and refinement of a state's approach often proceeds quite slowly. Even when it is clear which approach a state has adopted, the resolution to any given choice-of-law issue can remain unpredictable. Under the modern...

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