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Notes on Methods and Objectives in the Conflict of Laws: A Challenge, 35 Mercer Law Review 555 (1984)


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.

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