Choice of Law after the Currie Revolution: What Role for the Needs of the Interstate and International Systems?
35 Pages Posted: 8 May 2012
Date Written: 2011
Abstract
This article is based on the inaugural Annual Brainerd Currie Lecture at Mercer University School of Law – a lecture series created to honor the memory of the legendary Conflict of Laws scholar who received his law degree at Mercer and began his illustrious teaching career there in 1935. With a barrage of articles in leading law reviews between 1958 and 1963, Currie sparked what many have come to call a “revolution” in choice of law. This article addresses 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.
Following a brief description in Part I of the current state of choice of law in the United States and the place of interstate and international needs within it, the remainder of the article focuses on the prescriptive question of the role that those needs should play. Parts II and III explain the value of answering that question within the framework of a forum-centered approach to choice of law. Part IV discusses problems inherent in identifying interstate and international needs, and Part V considers the difficulties entailed in determining the degree to which such needs are implicated in particular cases. The article concludes in Part VI by returning to Currie and attempting to reconcile his deservedly eminent place in the field with his inattention to a concept as important as the role of interstate and international needs.
Keywords: Conflict of laws, choice of law, Brainerd Currie, interstate system, international system, interstate needs, international needs
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