Brainerd Currie

The Disinterested Third State

A generation ago-while I was in law school-Professor Joseph H. Beale and the American Law Institute inflicted upon this country the Restatement of the Law of Conflict of Laws, a rigid, theoretical, and vastly oversimplified system for adjudicating the most complex problems that legal controversy has to offer. The feat was not accomplished without protest-notably from Professor Walter Wheeler Cook. Since then it has been the task of all but the most submissive courts and scholars to struggle against the overpowering influence of the established system and to formulate a different methodology, capable of yielding rational results in real cases. The success of these efforts has been in a sense remarkable, although the influence of the Restatement was always grossly disproportionate to its intellectual foundations. Today the Restatement stands renounced by the American Law Institute itself; no responsible scholar offers to defend it; court after court throws off the shackles without waiting for full development of a new rationale, increasingly without the obeisance to the old system that was ritually observed by pioneering rebels. Demolition of the Restatement was by no means an easy task. At least one man, Professor Cook, may be said to have devoted his professional life to it. It was relatively easy, however, by comparison with the affirmative task of formulating a new method. It would be rash, indeed, for anyone to claim perfection of a new order. Yet the most remarkable thing about the revolt against the Restatement is the degree of progress that has been made toward a consensus as to the general outline that must be assumed by a new law of conflict of laws. This fact may escape the casual reader of modern critical comment. To such a reader it may well appear that the Restatement has been succeeded by nothing better than a gaggle of hostile factions, each claiming to have pre-empted the inside track in the race toward salvation. The common effort, if it can be called that, is indeed marred by pride of authorship, professional jealousy, and varying degrees of emancipation from the Influence; more than that, profound differences in individual conceptions of the nature, or function, of law and the institutions for its administration will for a long time to come prevent the promulgation of a comprehensive and detailed new system by any sort of academy-except, perhaps, that peculiar power structure, the

Unconstitutional Discrimination in the Conflict of Laws: Equal Protection

I. TnE EQUAL-PROTECTION CLAUSE HN THE SUPREME COURT first had occasion to consider the equalprotection clause of the fourteenth amendment, Mr. Justice Miller said: In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of law in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.

The Constitution and the Transitory Cause of Action

Professor Currie, having developed in the first part of his article the theory that the Supreme Court erred in grounding its decision in Hughes v. Fetter on the full-faith-and-credit clause instead of the equal-protection clause, now proceeds to consider situations in the conflict of laws in which the former provision is applicable. His conclusion sets forth the boundaries of a states obligation to provide a forum for causes of action created by the laws of a sister state.