Choice of Law After the Currie Revolution: What Role for the Needs of the Interstate and International Systems? - Gary J. Simson

• Publication year: 2012

Annual Brainerd Currie Lecture

Choice of Law After the Currie Revolution: What Role for the Needs of the Interstate and International Systems?¹

by Gary J. Simson*

Mercer University School of Law, which dates back to 1873,¹ has had many distinguished graduates in its long history.² In the realm of legal scholarship, however, one graduate-Brainerd Currie-unquestionably stands alone above them all. In the course of an academic career that began in 1935 with two years at his alma mater and included substantially longer stints on the law faculties at Duke and the University of

t Copyright ©2011 by Gary J. Simson.

* Dean and Macon Chair in Law, Mercer University. Yale College (B.A., 1971); Yale Law School (J.D., 1974). This Article is based on remarks that I delivered on September 21, 2011, as the first Annual Brainerd Currie Lecture at Mercer University School of Law. It is also a revised and expanded version of the essay that I contributed to Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Mahnoush H. Arsanjani et al. eds., 2011). I am grateful to my colleague Hal Lewis for various helpful comments.

1. See Proven Heritage, Mercer University School of Law, http://law.mercer.edu/ about/heritage (last visited Dec. 14, 2011).

2. See Notable Alumni, Mercer University, http://about.mercer.edu/notable-alumni/ (last visited Dec. 14, 2011) (listing numerous Mercer Law graduates among the university's "more notable alumni" in law, politics, education, the arts, and other fields).

Chicago,³ Currie transformed through his scholarship the field of conflict of laws.

It is no exaggeration to say that Currie was the most influential conflicts scholar of the last century. In fact, that claim probably understates the case, because Currie was influential in his field in a way that few scholars ever are in theirs. Not only did he change the way in which other conflicts scholars thought about conflicts problems. Even more impressively, he changed the way in which the great majority of state supreme courts did so.⁴ His writings, far more than anyone else's, sparked what many have come to call a "revolution"⁵ in choice of law. Ironically, one of the relatively few states to resist explicitly adopting his insights is Georgia,⁶ where he was born and educated and where he launched his remarkable teaching career.⁷

I will discuss Currie's contributions with greater specificity when I provide an overview of choice of law in Part I below. For now, I want to underline his tremendous stature as a legal scholar and reformer, because that stature is what prompted me in the spring of 2011-less than a year after I came to Mercer to become dean-to help create the lecture series that had, as its inaugural entry, the lecture on which this Article is based. As one might expect in light of my many years teaching and writing in conflict of laws, I had been thinking about ways of honoring the memory of this extraordinary graduate almost from the moment that I had the good fortune to be asked to join the Mercer law faculty as dean. When the law school received some funding in early 2011 that the donor had designated as money to be allocated toward lectures, I broached with Billie Pritchard, the Law Review's editor-in-chief, and my conflicts colleague Hal Lewis, the longtime faculty advisor to the Law Review, the idea of having an Annual Brainerd Currie Lecture that the lecturer would agree to develop into an article for the Mercer Law Review. I am grateful to both of them and to the entire Law

3. See Elvin R. Latty, Brainerd Currie-Five Tributes, 1966 Duke L.J. 2, 2. For a wonderfully admiring and insightful essay on what made Currie "the model of excellence for a generation of law professors," see Jack L. Sammons, Brainerd Currie: I Am The Very Model of a Modern Intellectual, 48 Mercer L. Rev. 623 (1997).

4. See infra text accompanying notes 15-24.

5. See, e.g., Harold L. Korn, The Choice-of-Law Revolution: A Critique, 83 Colum. L. Rev. 772, 772 (1983); Robert A. Sedler, The Governmental Interest Approach to Choice of Law: An Analysis and a Reformulation, 25 UCLA L. Rev. 181, 181 (1977).

6. See Dowis v. Mud Slingers, Inc., 279 Ga. 808, 621 S.E.2d 413 (2005) (reaffirming Georgia's continued adherence to the traditional place-of-wrong rule, and explicitly rejecting Currie's governmental interest analysis approach as well as other approaches that build on Currie's insights but that do not focus exclusively on governmental interests).

7. See Latty, supra note 3, at 2.

Review board for embracing the idea and helping bring to realization both the inaugural lecture and this Article.

My project in this Article concerns "choice of law"-that branch or subset of the field of conflict of laws that seeks to determine the applicable law in cases not confined in their elements to a single jurisdiction.⁸ Specifically, I attempt to answer a question given little attention by courts and scholars before Currie: What role should the needs of the interstate and international systems play in choice of law? Interestingly, although Currie himself had little to say on this question, his scholarship was instrumental in clearing away the traditional-rules thicket that was obscuring the question's importance.

After briefly discussing in Part I the current state of choice of law in the United States and the place of interstate and international needs within it, I turn my attention in the remainder of the Article to the prescriptive question of the role that those needs should play. I explain in Parts II and III the value of answering this question within the framework of a forum-centered approach to choice of law. In Part IV I discuss problems inherent in identifying interstate and international needs, and in Part V I consider the difficulties entailed in determining the degree to which such needs are implicated in particular cases. I conclude in Part VI by returning to Currie and attempting to reconcile his deservedly lofty stature in the field with his inattention to a concept as important as the role of interstate and international needs.

Throughout the Article, I limit my focus to courts in the United States. I should emphasize at the outset that I do so not because courts elsewhere are any less interesting or important. They surely are not. Rather, I do so because any attempt to address the question at hand is most meaningful in the context ofone or another particular court system and because the U.S. court system is the one I know best.

8. Put somewhat differently, choice of law deals with cases that transcend, in their parties or events, the boundaries of the forum state. If all aspects of a case are limited to the forum state, the court has no need to reflect on which state's law(s) govern the issue(s) in the case. Forum law obviously applies. When a case transcends the boundaries of the forum state, however, some basis at least potentially exists for the court's choosing nonforum law to decide one or more issues in the case. A court's "choice of law" approach is the mechanism by which it determines which, of two or more potentially applicable laws, should apply to each issue in the case. See Gary J. Simson, Issues and Perspectives in Conflict of Laws: Cases and Materials vii, 3 (4th ed. 2005). Unless I expressly indicate otherwise, I use the terms "state" and "jurisdiction" interchangeably in this Article.

I. AN OVERVIEW OF U.S. CHOICE OF LAW AND THE ROLE OF INTERSTATE AND INTERNATIONAL NEEDS

Broadly speaking, the history of choice of law in the courts of the United States can be divided into two eras: before Babcock v. Jackson³ and after. Prior to Babcock-a 1963 decision by the New York Court of Appeals-courts throughout the United States virtually uniformly framed the choice-of-law analysis set forth in their written opinions in terms of territorial rules of largely medieval origin.¹⁰ Although the American Law Institute had published in 1934 the Restatement of Conflict of Laws¹¹ in hopes of generating widespread conformity among state courts to a particular set of rules,¹² the rules-after 1934 as well as be-fore-commonly varied from state to state at any one time and within a single state over the years.¹³ At least on the surface, however, the various sets of traditional rules all required courts to arrive at their choice-of-law decisions indirectly. After characterizing the case at hand as one in tort, contract, or another area of the law, the court would (1) apply the place-of-wrong, place-of-making, or other rule triggered by the characterization, (2) ascertain the jurisdiction identified by the rule, and (3) with exceptions for forum procedures and forum public policy, apply the law of the selected jurisdiction across the board.¹⁴

The New York Court of Appeals' pathbreaking opinion in Babcock was the first state high court opinion to disavow strict adherence to the traditional rules.¹⁵ In Babcock the court announced that it would no longer feel bound to apply the place-of-wrong rule in tort cases.¹⁶ In subsequent years, the great majority of state high courts did likewise, and a similar proportion expressly renounced the traditional approach

9. 191 N.E.2d 279 (N.Y. 1963).

10. See Simson, supra note 8, at 13.

11. Restatement of Conflict of Laws (1934) [hereinafter First Restatement].

12. See William Draper Lewis, Introduction to id. at viii-ix.

13. See Simson, supra note 8, at 13.

14. See id. at 13, 15.

15. For a sense of Babcock's historic importance in the development of choice of law, see the contributions by Currie and other leading conflicts scholars of the time in Symposium, Comments on Babcock v. Jackson, A Recent Development in Conflict of Laws, 63 Colum. L. Rev. 1212 (1963), and the various perspectives offered by a later generation of conflicts scholars in Symposium on Conflict of Laws: Celebrating the 30th Anniversary

ofBabcock v. Jackson, 56 Alb. L. Rev. 693 (1993).

16. See Babcock, 191 N.E.2d at 285 ("[T]he rule,...