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" that was built on the "myth" of legislative intent;2rejects its teachings as "methodologically bankrupt" and "metaphysical as Beale"; 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."
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. 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. 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." 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., for purposes of this discussion.
Kay, Herma Hill
""The Entrails of a Goat": Reflections on Reading Lea Brilmayer's Hague Lectures,"
Mercer Law Review: Vol. 48:
2, Article 14.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol48/iss2/14