Gary Simson, ‘An Essay on Illusion and Reality in the Conflict of Laws’

… Traditionally, courts throughout the United States adhered to a choice-of-law approach featuring a variety of territorial rules, such as in tort cases apply the law of the place of wrong. Spurred by scholarly criticisms of the traditional rules and the publication of proposed alternatives, many state supreme courts since the early 1960s have expressly refused to stay within the confines of the traditional approach. The Georgia high court is one of about ten still wedded to the old approach. Coon features the application of a rule that for many years was part of various state high courts’ set of traditional rules, but that has long since been abandoned everywhere but Georgia. According to that rule, when a court’s traditional rules call for application of another state’s law and that law is common law, the court should look to forum law, rather than the other state’s law, for the applicable principle of common law. Detailed analysis of the Georgia high court’s opinion in Coon reveals not only the illogic of that idiosyncratic rule but, much more basically, the indefensible mindset on which judicial adherence to the traditional rules ultimately rests …

Simson, Gary J, An Essay on Illusion and Reality in the Conflict of Laws (March 1, 2019). 70 Mercer Law Review 819-64 (2019).

First posted 2019-06-25 05:36:27

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