Notes on Methods and Objectives in the Conflict of Laws: A Challenge

Abstract

I believe that interest analysis is methodologically bankrupt, have said so in print, and have been criticized. In my view, Brainerd Currie had his own beliefs about how far statutes ought to reach in their multistate applications, and these beliefs were methodologically on a par with the maxims of the First Restatement. He should have defended the substantive wisdom of these tenets on the merits. But rather than doing so directly- by empirical evidence, for instance, or by moral reasoning-he sought to camouflage his preferences as effectuation of legisative policy goals. He then claimed that any judge who adhered to the old territorialist norms when the interest analysis norms required a different result was operating in an undemocratic manner and invading the domain of the legislature. Further, the judge was doing so in a manner that discouraged legislative revision or reformulation.