Choice of Law: How it Ought Not to Be - Friedrich K. Juenger

• Publication year: 1997

Choice of Law: How it Ought Not To Beby Friedrich K. Juenger^*

I.

When the Mercer Law Review sent me the transcript of the October 1996 Roundtable at the Walter F. George School of Law, I was curious to learn what progress interest analysis has made since the death of its founder, Brainerd Currie, more than thirty years ago. Alas, the transcript confirmed my suspicion: there is nothing new to be found in that corner of conflicts methodology. The participants discussed shopworn cases and produced period pieces that might as well have been written in the sixties. But while that era's symposia sparked lively differences of opinion on essential points, the Mercer discussants, being True Believers in Currie's methodology, all agreed on fundamentals. Their choice of cases, hoary chestnuts from the fifties, sixties, and seventies (only Schultz v. Boy Scouts of America, Inc.¹ is of a more recent vintage, although it, too, was decided well over a decade ago), conveys the impression that that methodology is stuck in a time warp.

Currie's school may not be the only one to delight in anachronisms. For instance, Cavers' landmark article, written in 1933, dealt with married women's disabilities, a topic that had already inspired Benedikt Carpzov in the seventeenth century. But Currie did appreciate such fusty relics. In fact, he picked the very same issue as the topic for the seminal piece he published in the late fifties, a time when married women had long been emancipated. Given this antiquarian bent, it seems that the obsolescence of an issue is a virtue rather than a vice in the eyes of interest analysts. That would explain why Currie's disquisition on Massachusetts women still occupies a prominent place in a recent casebook and why the analysts insist on discussing conflicts problems such as those posed by the long extinct caps on wrongful death recovery and guest statutes, a species of legislation dating back to the thirties that has succumbed to law reform in all states except Alabama.

Alas, the academicians' enchantment with legal fossils has a draw-back. Time spent on quaint oddities from the past is bound to distract them from the issues of our days. For instance, they are bound to overlook changes in the law that convert their favorite specimens into ghost cases. Thus, no one at Mercer considered, in discussing Walton v. Arabian American Oil Co. ,² the effect of Federal Rule of Civil Procedure 44.1 on the resolution of the foreign law issue the case presented. More importantly, scholars preoccupied with past problems are wont to pay little attention to such current conflicts issues as those created by the so-called "reform" that has balkanized American tort law, or the choice-of-law conundrums posed by mass disasters. As far as the latter are concerned, of course, interest analysts may do well to avoid them. As the Mercer Roundtable shows, their methodology complicates the resolution of even run-of-the-mill two-party situations and would therefore only heap further complexities on already complex cases.

II.

Practical considerations, in any event, do not seem to be uppermost in the analysts' minds. Apparently, they look upon choice of law not so much as a means to accommodate the exigencies of interstate and international disputes than as a titillating intellectual exercise, a haven far removed from real-world concerns, in Posnak's words, the "wacky, zany, problematically wonderful world of choice of law."³ With little regard for Rosenberg's admonition that "the game is not being played so [scholars] can flex their jurisprudential muscles," the analysts enjoy their "three-dimensional chess games."⁴ Given the amorphous nature of the two concepts that are central to their methodology—policies and interests—there is an almost inexhaustible array of moves and countermoves available to keep them entertained. Thus, any run-of-the-mill traffic accident can serve as the basis for a long and erudite analysis of the policies and interests at stake.

Law review articles, as well as reported cases, reveal considerable differences of opinion on what policies inform a particular statutory or common law rule because, as David Currie notes, ascertaining these policies is a highly subjective matter.⁵ In addition, there is room for disagreement on the interests a state may have in effectuating...