"the Entrails of a Goat": Reflections on Reading Lea Brilmayer's Hague Lectures - Herma Hill Kay

• Publication year: 1997

FEATURED ARTICLE

"The Entrails of a Goat": Reflections on Reading Lea Brilmayer's Hague Lecturesby Henna Hill Kay^*

I. Introduction

No one will be surprised to hear that my former student, Professor Lea Brilmayer, and I have a long-standing disagreement about the merits of the approach to choice of law theory proposed by my former teacher, Professor Brainerd Currie. I take Currie's interest analysis to be a major intellectual achievement, a paradigm-shattering advance over the traditional vested rights theory advocated by the father of the First Restatement, Professor Joseph Beale, and a sound basis for further theorizing in choice of law. Brilmayer regards interest analysis as a

"house without foundations"¹ that was built on the "myth" of legislative intent;² rejects its teachings as "methodologically bankrupt"³ and "metaphysical as Beale";⁴ and denounces its claim to identify governmental interests after having examined the policy underlying a state statute as providing "no more guarantee of authenticity than the fact that an announcement that the gods want human sacrifices takes place after examining the entrails of a goat."⁵

I do not propose to revisit here my disagreement with Brilmayer over Currie's theory. I have defended his approach against several critics, including Brilmayer, elsewhere.⁶ Rather, I wish to elaborate on two of my own clarifications of Currie's approach in light of Brilmayer's discussion of my work in her recent Hague Lectures.⁷ This volume in honor of Currie, which revisits his approach, seems a convenient occasion for me to offer a reply to Brilmayer on two points: (1) whether governmental interests, as Currie used that term, can be created by legislative enactment, or whether instead, interests arise from the objective confluence of the law-fact pattern of a given case; and (2) the relevance to a court using interest analysis of the existence of jurisdiction-selecting choice of law rules in another state whose domestic law is potentially applicable. Brilmayer uses my analysis of both points as fresh support for her claim that interest analysis eschews actual legislative intent in favor of choice of law logic that chooses connecting factors to establish the spacial applicability of conflicting laws just as the traditionalists did. As she puts it, "the interests that the modern theorists purport to identify bear only the most casual and coincidental resemblance to what the legislature happens to want."⁸ I believe her claim can be shown to be overstated. Adopting the method used by the panel in the conversations reported in this volume, I will focus on a familiar case, Pfau v. Trent Aluminum Co.,⁹ for purposes of this discussion.

II. The Pfau Case

Pfau involved an automobile collision in Iowa between two vehicles, one driven by a New Jersey student attending Parsons College in Iowa who was en route to Missouri for the weekend with a college classmate from Connecticut, the other operated by an Iowa resident driving with his family. The collision resulted from the negligence of the New Jersey driver and caused injuries to the Iowa family as well as the Connecticut passenger. The vehicle driven by the New Jersey student was owned by his father's New Jersey corporation, registered in New Jersey, and insured by a New Jersey insurance company. The insurer settled the claims of the Iowa family, but denied that of the Connecticut passenger, who thereafter brought suit in New Jersey against the host and the owner of the vehicle, relying on the New Jersey law that required a host to use at least ordinary care for the safety of a guest. The defendants invoked the Iowa guest statute as a defense. That statute provided that a host-driver is not liable to his guest-passenger for ordinary negligence.¹⁰ The trial court struck this defense, holding New Jersey law applicable.¹¹ The appellate division reversed and reinstated the defense.¹² On appeal from the interlocutory order dismissing plaintiff's claim, the Supreme Court of New Jersey reversed the order of the appellate division and reinstated the order of the trial court striking the defense based on the Iowa guest statute.¹³

Justice Proctor began his analysis for the New Jersey Supreme Court by noting that the court had previously rejected the lex loci delicti rule for determining choice of law in torts cases and had adopted the governmental interest analysis approach.¹⁴ True to the methodology of interest analysis, Justice Proctor began by examining the policies underlying the law asserted by one of the parties to displace forum law as the rule of decision: he examined the purposes of the Iowa guest statute "as articulated by the Iowa courts."¹⁵ That examination produced a list of purposes,¹⁶ none of which appeared to the New Jersey court "to be relevant to the present matter"¹⁷ because "[t]he desire of Iowa to prevent collusive suits and suits by ungrateful guests and to cut down litigation would ordinarily apply to Iowa domiciliaries, defendants insuring motor vehicles [there], and persons suing in its courts."¹⁸

Having examined the legislative purposes (or using Currie's term, the policies) that Iowa courts had identified underlying the guest statute, and having determined that, given the facts of the case before him, none of those purposes would be achieved by applying the statute, Justice Proctor drew the following conclusion:

It is clear to us that Iowa has no interest in this suit. Recovery for negligence in this action will not transgress any of the purposes behind Iowa's guest statute as enunciated by that state's courts or legislature, and will not in the slightest impair traffic safety in Iowa .... We are convinced that if the plaintiff were a New Jersey domiciliary Iowa's guest statute would be inapplicable.¹⁹

The final sentence of the quoted paragraph reflects two conclusions about New Jersey law, both spelled out later in the opinion: First, as to its domestic law, "that the strong policy of this state is to allow a guest-passenger to be compensated by his host-driver in cases of ordinary negligence,"²⁰ and second, that in a case where both guest and host were domicilliaries of New Jersey, the state would have an interest in implementing its policy of compensation.

In Pfau, however, plaintiff was not a domiciliary of New Jersey, but rather of Connecticut. Justice Proctor considered whether this fact sufficiently altered the law-fact pattern to change his conclusion that Iowa law was inapplicable.²¹ To do so, he examined Connecticut law.²² He found that Connecticut had repealed its guest statute in 1931, and since that time had permitted guest-passengers to recover from their host-drivers for ordinary negligence.²³ Thus, looking only at its domestic law, Justice Proctor concluded that "if this plaintiff-guest had been injured in a Connecticut accident by a Connecticut host-driver, there would be no bar to recover for ordinary negligence if suit were brought in that state."²⁴

This analysis suggests that plaintiff could recover in New Jersey under Connecticut law. Although it is not entirely clear from the record, the appellate court opinion suggests that plaintiff did not rely on Connecticut law; instead, he had invoked the law of the forum—New Jersey.²⁵ Under those circumstances, what interest, if any, did New Jersey have in applying its law?

At this point in his opinion, Justice Proctor turned for guidance to another state court that had adopted governmental interest analysis—the opinion in Reich v. Purcell,^2e written for a unanimous California Supreme Court by its distinguished Chief Justice, Roger J. Traynor. Like Pfau, Reich involved an automobile collision in one state (Missouri), a negligent driver from a second state (California), and a plaintiff from a third state (Ohio), in which only the state of injury imposed a limitation on recovery.²⁷ Reich differed from Pfau in that plaintiff's suit was for the wrongful death of his wife and child, and the statute relied upon by the negligent driver was a limitation on damages for wrongful death rather than a statute barring a guest's recovery from a host for ordinary negligence.²⁸ In both cases, however, the sole issue before the court was whether the defense based on the statute in force at the place of the injury applied to prevent (in Pfau), or to limit (in Reich), plaintiff's recovery.

Chief Justice Traynor's approach to determining the respective policies of the three states was similar to that used by Justice Proctor. He turned first to an analysis of the Missouri statute limiting damages for wrongful death to twenty-five thousand dollars. Although he did not cite Missouri cases as authority for his analysis, as Justice Proctor had done in approaching the Iowa statute, Traynor drew on well-recognized characteristics of such limitation statutes.²⁹ He identified two such purposes: to determine "how survivors should be compensated"³⁰ and "to avoid the imposition of excessive financial burdens on [defendants]."³¹ Considering those policies in light of the law-fact pattern of the case, Chief Justice Traynor, like Justice Proctor, found that they would not be advanced by their application to the nonresident parties in a lawsuit brought outside Missouri.³² As to the first purpose, Missouri, as the place of wrong, "has little or no interest in such compensation when none of the parties reside there."³³ As to the second, "[t]hat concern is also primarily local and we fail to perceive any substantial interest Missouri might have in extending the benefits of its limitation of damages to travelers from states having no similar limitation."³⁴

Having eliminated Missouri as an interested state, Chief Justice Traynor had been confronted, as Justice Proctor was, with the question of whether the forum, as the domicilliary state of the defendant driver, had an interest in applying its own law to allow full recovery. Here Chief Justice Traynor was presented with an argument that Justice...