Duquesne Law Review


The three pejoratives in the title of this paper were the battle cry which Brainerd Currie, one of the outstanding scholars of American conflicts law, raised in 1963 with regard to a series of New York decisions in this area. Shortly thereafter, Gerhard Kegel, one of the leading conflicts authors on the international scene, found all of American conflicts law to be immersed in a severe crisis. As for myself---even then I shared Currie's unhappiness about a misguided theory which, having arisen from the fluid and largely academic playgrounds of torts and contracts, had been permitted by the New York court to create such very human tragedies as that of the "bastard" denied his right to a father under a foreign law. And today I would unhappily conclude that ever since, New York has continued along this dangerous path. But for other states I have always maintained that, if a crisis exists, it has remained limited to the conflicts law of enterprise liability where it is due to the critical posture of the substantive law in this area. Here we are faced with the incongruity between the search for an equitable distribution of unavoidable losses and its disingenuous tool of a tort liability designed to achieve avoidance of such losses by the potential wrongdoer's admonition. So long as this irrational law of admonition for "fault" is not replaced by a rational scheme of compensation without fault, any conflicts rule must choose between two irrational laws and will, therefore, continue to remain irrational. Indeed, the alleged crisis, except for what I have characterized as the general Desperanto of the Second Conflicts Restatement8 and for the unfortunate experiments of New York, has with an almost exasperating regularity, been virtually limited to such very specific problems of an obsolescent enterprise liability as guest statutes, limitations of damages, and family and charitable immunities. But the present case, though it does, of course, as nearly all cases of this kind, reach a wholly defensible decision on the merits, may regrettably signify a dramatic spread of Currie's "Conflict, Crisis and Confusion" from New York into the important jurisdiction of Pennsylvania.

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