Choice of Law Symposium Transcript Featuring: David Currie, Robert Felix, Herma Hill Kay, Marjorie F. Knowles, Bruce Posnak, John Rees, Jr., and Jack L. Sammons

• Publication year: 1997

CHOICE OF LAW: HOW IT OUGHT TO BE

A Roundtable Discussion Monday, October 14, 1996 Walter F. George School of Law Macon, Georgia

WELCOME

DEAN DESSEM: I am very happy to have the task of welcoming you all here today for our 1996 Law Review Symposium, Choice of Law: How It Ought to Be. We have with us a stellar collection of authorities in the area of choice of law, and I think it will be both an interesting and fun day for all of us.

As the announcement for the Symposium states, Mercer is Brainerd Currie's law school. Those of us at Mercer realize that he was not only a graduate of this law school, graduating with the highest average ever, but was also a member of the faculty in his early years of law teaching.

Our student honor society here at Mercer is the Brainerd Currie Honor Society, and an invitation to join the Brainerd Currie Honor Society is the highest honor that one of our students can achieve. We're very proud of our ties to Brainerd Currie, and we're going to hear more about Brainerd Currie and his approach to choice of law throughout the day.

In a former life before becoming a law school dean, I taught civil procedure, and there was always a wonderful case in the casebook dealing with multiple plaintiffs. This particular case was pretty much like a law school hypothetical—it was so confused and convoluted. The Oregon Supreme Court wrestled with a problem that Brainerd Currie had wrestled with back in the 1950s. In the early years of teaching that case a student one day in class said, "You know, the Oregon Supreme Court doesn't cite any cases at all. It just relies on Brainerd Currie." A reference to or reliance on Brainerd Currie was worth, and is still worth, a lot of case law.

We're very proud to recognize Brainerd Currie today. He was a person who made us think, who still makes us think. He was a person who wrote on a clean slate, and that's exactly what this Symposium will do—make us think. Our experts also will be writing on a clean slate for us today.

Before I briefly introduce the panelists, I want to recognize members of the Currie family, whom we are so pleased to have with us today. We have Brainerd Currie's wife, Pick, who told us last night that she spent her first twenty-eight years in Macon. We're very proud and pleased to have her back with us today. She travelled down from Durham, North Carolina to be with us.

Next to her is Brainerd Currie's daughter, Carolyn Currie Hall. We are very pleased that she has travelled to be with us today. We thank you both and extend the hospitality of Mercer and of Macon to you both.

Now, for the panelists, and I'm going to do this in alphabetical order because we have such an outstanding group of scholars in this area.

I'll start with Professor David Currie. David Currie is the son of Brainerd Currie. He is an internationally known legal scholar. He is the Edward Levi Distinguished Service Professor at the University of Chicago and has taught on the University of Chicago faculty since 1962. He is a graduate of the University of Chicago and the Harvard Law School. After graduation from law school, David Currie clerked for Judge Henry Friendly of the Second Circuit and Justice Felix Frankfurter. He is a Fellow of the American Academy of Arts and Sciences and has written many books and articles, including a leading casebook on conflict of laws, which he has co-authored with Dean Herma Hill Kay.

Robert Felix is the James Mozingo Professor of Legal Research at the University of South Carolina School of Law, where he teaches Conflict of Laws, Torts, Products Liability, and Law and Literature. He received both his A.B. and LL.B from the University of Cincinnati. He then went on to get an M.A. from the University of British Columbia and an LL.M. from Harvard. He has co-authored another casebook in the area of conflict of laws and is now working on the fifth edition of a treatise in that area. He is past chair of the Conflict of Laws Section of the AALS.

Dean Herma Hill Kay is also with us. She is the Dean at the University of California School of Law at Berkeley. She has been on the faculty at Berkeley since 1960. Her law degree is from the University of Chicago, where she served on the Law Review and was a member of Order of the Coif. She has her undergraduate degree from Southern Methodist University. She is a Fellow of the American Academy of Arts and Sciences and a member of the Council of the American Law Institute. She has also served as President of both the Order of the Coif and the Association of American Law Schools. She has, with David Currie, co-authored one of the leading conflicts casebooks and has also written widely in the areas of sex-based discrimination and family law.

Next is Professor Marjorie Fine Knowles. Professor Knowles is a Professor at Georgia State University, where she served as Dean from 1986 to 1991. She is an honors graduate of both Smith College and the Harvard Law School. Professor Knowles teaches Corporate Law, Corporate Responsibility, Sex-Based Discrimination, and Conflict of Laws. She is on the board of trustees of the College Retirement Equities Fund. She is also on the Visiting Committee at Harvard Law School, a member of the American Law Institute, and a consultant to the Ford Foundation.

Professor John Rees is the Law School Association Professor of Law at the University of Georgia, where he has taught since 1959. During that time, he, and really all of our panelists, have taught many students. Professor Rees has the distinction, however, of having taught our own Jack Sammons. Professor Rees is a graduate of Hobart College and the University of Virginia, where he served on the editorial board of the Virginia Law Review. He teaches Civil Procedure, Federal Courts, and Conflict of Laws.

Finally, we have two of our own professors involved in this Symposium. Professor Jack Sammons is the Griffin Bell Professor of Law here at Mercer. His degrees, in addition to the University of Georgia, are from Duke and Antioch. His current courses include Criminal Law, Evidence, Legal Ethics, and Introduction to Counseling. Professor Sammons is a national expert on professionalism and was one of the major architects of our own Woodruff Curriculum, which just this last summer received from the American Bar Association the Gambrell Professionalism Award. Professor Sammons has worked with Professor Posnak on a biography of Brainerd Currie.

And, finally, Professor Bruce Posnak. Professor Posnak has been on the faculty here at Mercer University since 1977. His degrees are from the University of Maryland, where he finished second in his law school class. He was in private practice for a short period, but primarily practiced with the Antitrust Division of the Department of Justice. He teaches Antitrust, Statutory Law, Sports Law, and Choice of Law. His scholarly writing has been in the area of choice of law, and one of his choice-of-law articles has just recently been included in an anthology of outstanding choice-of-law articles. Bruce Posnak is the person who, with the assistance of Jack Sammons, conceived and created today's Symposium.

Please join me in thanking Professor Posnak, Professor Sammons, and the Mercer Law Review. We have here several students from the Law Review: Editor-in-Chief, Brett Steele, and Lead Articles Editor, Elizabeth Wheeler, who is the individual on the Law Review primarily responsible for bringing this all together. I want to thank all of you, and I want to thank our participants and guests for joining with us today to discuss Choice of Law: How it Ought to Be.

ROUNDTABLE DISCUSSION

PROFESSOR POSNAK: I want to thank the panelists. They have come from the far West, the Midwest and the near Southeast, and so we appreciate your attendance. I also want to thank the audience for attending. I especially want to thank Elizabeth Wheeler and the staff for arranging this. They did the hard work, the administrative work, and we appreciate that.

I want to say a few words before we get into the roundtable discussion itself, meant especially for those of you who have not had a conflict of laws course. First of all, I want to welcome you to the wacky, zany, problematically wonderful world of choice of law, or as Professor Prosser calls it, the "dismal swamp." Hopefully, today we can make a little light shine through the cypress trees without getting too bogged down. Don't worry about getting lost. You cannot get lost in choice of law because there is no home, at least in the courts. A lot of commentators think they have found a home, but the courts certainly haven't.

Choice of law is among the most or the most unthought about areas of the law. Normal people just do not think about it. Even before you came to law school you knew something about contracts, criminal law, negligence—although, you might never have heard the word torts—etc.

It's very unusual for people to have thought anything about choice of law until they take a conflict of laws course. Not only do normal people not stay awake at night reading the latest choice-of-law hornbook, Law Review article, or thinking about whose law should apply in cases having contacts with more than one state, the vast majority of lawyers don't think about choice of law either. Most people, including most lawyers, just assume that when a Georgia court hears a case, the Georgia court is going to apply Georgia law. It isn't necessarily so.

Thinking about choice of law transports one, I believe, to a new dimension on a different plane than other areas of the law. When a case has relevant contacts with more than one state—and don't ask what makes a contact relevant, because what to one person may seem relevant, to another it might not—as more and more cases do in this day and age, the problem of doing justice under law, already difficult, becomes more difficult. Under whose law? If the case has contacts with more than one state, whose law should we be trying to do justice under?

One way...