How Modern Choice of Law Helped to Kill the Private Attorney General
O'Connor, Erin O'Hara, 1965-
It is a great honor to be asked to deliver the second Annual Brainerd Currie Lecture at Mercer University School of Law. Brainerd Currie was an immensely influential law professor who is recognized as the leading scholar of conflict of laws in the twentieth century. Mercer has the distinction of being both Currie's law school alma mater as well as his first academic appointment, probably the two most significant intellectual influences on any scholar. More recently, Mercer has attracted other influential conflicts scholars and cheerleaders of the topic, including Dean Gary Simson, Larry Ribstein, Hal Lewis, and Bruce Posnak, among others. Thus, Mercer is a most fitting host for such an occasion. The lecture provides an occasion to celebrate the highly influential work of Brainerd Currie in the area of conflict of laws. Currie formulated an entirely new approach to choice of law that has revolutionized the way courts and scholars think about the problem. With fifty years of hindsight, however, it is possible to look back on the influence of Currie's work with quite a bit more perspective than might have been possible earlier. With that perspective, I hope to argue that Currie's approach has had unintended and, for Currie, perverse consequences. Without thinking carefully about the long-term consequences of their choice-oflaw decisions or how the choice-of-law landscape would play a role in the ever-increasing pressures presented by interstate and international trade, courts using modern approaches to choice of law have contributed to the demise of the private attorney general. In doing so, the choice-oflaw revolution, which Currie sparked in order to enable states to more effectively promote state policies, ultimately has produced the opposite result. This Essay will briefly explain Currie's approach to choice of law and its significant influence for modern choice-of-law approaches. It will then explain how one of those approaches, the Restatement (Second) of Conflict of Laws,3 both facilitated further state experimentation with choice-of-law policies and enabled private parties to gain some certainty regarding the governing law for contracts. This Essay will show how the choice-of-law clauses sanctioned in the Second Restatement work in tandem with other choice clauses to enable private parties to avoid undesired laws. Finally, this Essay will argue that the choice clauses have led to the demise of the private attorney general.