5 - Choice of Law as General Common Law: A Reply to Professor Brilmayer

Summary

Introduction

In the first footnote of her chapter, Lea Brilmayer mentions “significant overlap” with two recent papers of mine. If anyone should be making acknowledgments, I should. She has long argued that the law of choice of law, even in its modern interest-analysis incarnations, is a disguised form of general common law, and that it ought to be reformed in the spirit of Erie. In taking up this argument myself, I am in her debt.

To get the basic idea, consider a variation on Kuchinic v. McCrory. Assume a Georgia pilot invites another Georgian to fly with him to attend a football game in New York. On the way the plane crashes in Pennsylvania. A Georgia statute prohibits guests from suing their hosts for negligence. Pennsylvania law has no such prohibition. Had it entertained the action, the Georgia Supreme Court would have applied Pennsylvania law to the facts. However, the guest chooses to sue the host in Vermont state court instead. May it apply Georgia law?