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Publication Date

3-1997

Document Type

Response

Abstract

I am truly honored to be asked to participate in a symposium hosted by Brainerd Currie's school and dedicated to him. Like the other participants in this symposium, I have studied Currie's insightful writings, I have learned immensely from them, and I have written about them. Unlike most participants, however, I found myself in the position of being able to use some of Currie's ideas in the drafting of choice-of-law legislation. I had the undeserved good fortune of being asked to serve as the Reporter for the Louisiana State Law Institute in revising and codifying Louisiana's conflicts law. The result of that effort is a codification that became effective on January 1, 1992, as Book IV of the Louisiana Civil Code. Good or bad, this is the only comprehensive choice-of-law legislation in the United States. I thought it might be interesting to the readers of this symposium to see how the six cases that are the object of this symposium would be resolved under this codification. This is what I hope to demonstrate in this article.

It is, of course, well known that Brainerd Currie abhorred choice-oflaw rules. However, his famous aphorism that "[w]e would be better off without choice-of-law rules" must be put in proper historical perspective. When Currie made this statement, he had good reasons to be skeptical of rules. The rules that prevailed at that time, that is, those of the First Restatement, were dogmatic, rigid and mechanical, if not downright silly. Currie had less of a good reason to condemn all future efforts to develop different choice-of-law rules. Perhaps he thought that it was impossible to develop rules that would be faithful to the teachings of his revolution without prematurely arresting the development of American conflicts law.

The question I would like to pose to the readers of this article is whether the Louisiana codification has come close to belying Currie's pessimism, if that is what it was, in formulating rules that are flexible and sensitive to the policies underlying the competing laws, faithful to the lessons of the conflicts revolution, and capable of producing functionally sound results.

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