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Authors

Gary J. Simson

Publication Date

3-2012

Document Type

Tribute

Abstract

Mercer University School of Law, which dates back to 1873, has had many distinguished graduates in its long history. In the realm of legal scholarship, however, one graduate-Brainerd Currie-unquestionably stands alone above them all. In the course of an academic career that began in 1935 with two years at his alma mater and included substantially longer stints on the law faculties at Duke and the University of Chicago, Currie transformed through his scholarship the field of conflict of laws. ...

My project in this Article concerns "choice of law"-that branch or subset of the field of conflict of laws that seeks to determine the applicable law in cases not confined in their elements to a single jurisdiction. Specifically, I attempt to answer 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.

After briefly discussing in Part I the current state of choice of law in the United States and the place of interstate and international needs within it, I turn my attention in the remainder of the Article to the prescriptive question of the role that those needs should play. I explain in Parts II and III the value of answering this question within the framework of a forum-centered approach to choice of law. In Part IV I discuss problems inherent in identifying interstate and international needs, and in Part V I consider the difficulties entailed in determining the degree to which such needs are implicated in particular cases. I conclude in Part VI by returning to Currie and attempting to reconcile his deservedly lofty stature in the field with his inattention to a concept as important as the role of interstate and international needs.

Throughout the Article, I limit my focus to courts in the United States. I should emphasize at the outset that I do so not because courts elsewhere are any less interesting or important. They surely are not. Rather, I do so because any attempt to address the question at hand is most meaningful in the context of one or another particular court system and because the U.S. court system is the one I know best.

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