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 the AMEK
LIN I fES VOL. 21-NO. 3
JUNE 1972
~~LW

VOLUME 21 JUNE 1972 NUMBER 3

THE "NEW" CHOICE OF LAW

ROBERT A. LEFLAR*
The thesis of this brief comment is that scholars working on choice-
of-law problems in the law of conflict of laws today are not as far apart
as some of their arguments with each other might indicate. The appel-
late courts are bringing the scholars together, whether they want to
come together or not.
This statement assumes the abandonment of the Bealian choice-of-
law mechanics set out in the first Conflict of Laws Restatement in 1934,
and refers to choice-of-law developments in the last fifteen years, espe-
cially in the last three or four years. It is true that there are recent
decisions holding, as Beale prescribed, that torts cases should be gov-
erned by the law of the place of injury,' contracts cases by some simi-

* Visiting Professor of Law, University of Oklahoma; Professor Emeritus, University

of Arkansas; Director of Appellate Judges Seminars, New York University; author,
AMERICAN CONFLICTS LAW (1968).
1. Brendle v. General Tire & Rubber Co., 408 F.2d 116 (4th Cir. 1969) (North
Carolina rule); Doody v. John Sexton & Co., 411 F.2d 1119 (1st Cir. 1969) (Massachu-
setts rule); Folk v. York-Shipley, Inc., 239 A.2d 236 (Del. 1968) (loss of consortium);
Hopkins v. Lockheed Aircraft Corp., 201 So.2d 743 (Fla. 1967) (measure of damages
for wrongful death) (But see dissenting opinion); Johnson v. St. Paul Mercury Ins. Co.,
256 La. 289, 236 So.2d 216 (1970) (guest statute) (But see dissenting opinion); Hartford
Mut. Ins. Co. v. Bruchey, 248 Md. 669, 238 A.2d 115 (1968) (loss of consortium);
Abendschein v. Farrell, 382 Mich. 510, 170 N.W.2d 137 (1969) (guest statute); Marmon
458 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 21

larly mechanical choice of law rule,2 and the like. There will be more
of such cases. But the trend is away from them. The difficulty has been
that a half-dozen pundits have attempted to direct the trend of departure
in a half-dozen new and different directions. It is submitted that now,
by reason either of the wisdom or the unawareness of the judges who
write the precedent-establishing opinions, these half-dozen paths are
beginning to converge, so that we soon may say they point the direction
of "the" modern approach to choice of law.
It is unfair to the pundits to summarize their differing views in single
sentences when they have used reams of paper in their own presenta-
tions. Nor can brief summaries be completely accurate. It is possible,
nevertheless, to identify the central features of the various approaches
briefly. Professor Ehrenzweig has stressed the forum's justified prefer-
ence for its own law, 3 at the same time that he suggests certain specific
contacts as having major relevance to particular types of problems.' The
late Professor Brainerd Currie dwelt upon the concept of "governmental
interests" and, rejecting state-against-state comparisons of such inter-
ests, contended that forum states should apply their own law rather than
the law of any other state if the forum has any substantial interest in
application of its law to the litigated facts; if the forum has no real
concern with the case it should apply the law of the state having a
governmental interest whose law most nearly corresponds with that of
the forum state.- Professor Cavers' "principles of preference" are based
v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex. 1968), affg 416 S.W.2d 58 (Tex. Civ.
App. 1967) (measure of damages governed by law of Colorado, where airplane fell,
though all parties were from Texas).
2. Ideal Structures Corp. v. Levine Huntsville Dev. Corp., 396 F.2d 917 (5th Cir.
1968) (statute of frauds of place of performance applied); Pound v. Insurance Co. of
N. America, 439 F.2d 1059 (10th Cir. 1971) (law of "place of consummation . . . last
act"); Allstate Ins. Co. v. Harrison, 307 F. Supp. 743 (W.D. Ark. 1969) (uninsured
motorist endorsement with arbitration clause; place of contracting); Stevens v. Ameri-
can Serv. Mut. Ins. Co., 234 A.2d 305 (D.C. App. 1967) (insurance contract, place of
making); Insurance Managers, Inc. v. Calvert Fire Ins. Co., 261 Iowa 155, 153 N.W.2d
480 (1967) (insurance contract, place of making).
3. Ehrenzweig, The Lex Fori-BasicRule in the Conflict of Laws, 58 MICH. L. REv.
637 (1960).
4. E.g., Ehrenzweig, Guest Statutes in the Conflict of Laws-Towards a Theory of
Enterprise Liability under "Foreseeableand Insurable Laws", 69 YALE L.J. 595 (1960),
urging application of the law of the place where the automobile is regularly garaged,
on the theory that liability insurance taken out at that place is usually the real basis of
recovery in automobile accident cases.
5. B. CURRIE, SELECTED ESSAYS ON THE CONFLICT OF LAWS 184 (1963). For a later
statement by Professor Currie, see W. REESE & M. ROSENBERG, CASES AND MATERI-
19721 "NEW CHOICE OF LA W

upon careful analyses of the values involved in each of many variant but
typical fact situations,' with specific conclusions usually influenced by
a preference for the rule of law that will in general yield results in
keeping with currently approved socio-political standards. The present
writer's "choice-influencing considerations" approach is an effort to
identify the actual reasons which motivate courts to choose one law or
another in conflicts cases, and to bring the choice-of-law process into
line with these real reasons. 7 The original New York "most significant
relationship" test, based as it was on a "center of gravity" determined
by the qualitative totality of factual (dominant) contacts in the states, 8
was superseded by interest analysis language in the later New York
opinions' but lingers on in Restatement (Second) sections which still use
the "most significant relationship" label 0 but give the sections a new
content consisting of policy factors" that approximate most but not
quite all of the present writer's choice-influencing considerations. This
is the melange out of which "the" modern law of choice of law is
beginning to make its appearance.
The states which first began to move away from the old mechanical
choice-of-law rules are the ones which have oscillated most among the
various modern views as to how choice-of-law problems should be han-
dled. This shifting uncertainty is readily understandable, since the courts
in these states were pioneering in new ground, before some of the cur-
rent analyses mentioned in the preceding paragraph had even appeared

ALS ON CONFLICT OF LAWS 523 (6th ed. 1971).

6. D. CAVERS, THE CHOIcE-OF-LAW PROCESS 139, 181 (1965). See also D. CAVERS,
CONTEMPORARY CONFLICTS LAW IN AMERICAN PERSPECTIVE 151 (1970).
7. Leflar, Choice-Influencing Considerationsin Conflicts Law, 41 N.Y.U. L. REV.
267 (1966); Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54
CALIF. L. REV. 1584 (1966).
8. Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99 (1954) (contracts); Babcock v.
Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963) (torts).
9. Intercontinental Planning, Ltd. v. Daystrom, Inc., 24 N.Y.2d 372, 248 N.E.2d
576, 300 N.Y.S.2d 817 (1969).
10. RESTATEMENT (SECOND) OF CONFLICT OF LAWS (1971) §§ 145-155 (torts), 188-
197 (contracts), 222 (property in general), 244 (transfers of chattels), 251 and 254
(security interests in chattels), 256 (consensual powers over chattels), 257 and 258
(marital property in movables), 270 (trusts of movables), 283 (validity of marriages),
286 (legitimacy of children), 291-294 (agency and partnership), 303-306, 309 (corporate
shareholders, directors and officers).
II. Id. §, 6 (choice-of-law principles). Nearly every one of the sections cited in note
10 includes a reference back to the policy considerations enumerated in section 6, as
the guide to determination of what state has the controlling "most significant relation-
ship" required by the specific sections.
 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 21

in print. They were feeling their way.

New York has had more recent cases than any other state. The "cen-
ter of gravity" or "most significant contacts" approach was used as an
alternative justification for the court of appeals' decision in Rubin v.
Irving Trust Co.' in 1953, but it was not until the following year that
the same court, in Auten v. Auten,'13 unmistakably adopted that ap-
proach for contracts cases, and not until 1963 that it was applied in
Babcock v. Jackson,4 a torts case. Dym v. Gordon" in 1965, according
to Justice Fuld, who wrote the Babcock opinion, backed away from the
1963 position, and for torts asserted a sort of midway view which gave
first importance in Bealian fashion to the law of the place of injury,
though the majority opinion purported to analyze the facts in terms of
"most significant relationship." Four years later, in Tooker v. Lopez,"
Justice Fuld was able to rejoin the majority in a decision that for practi-
cal purposes did away with the aberration of Dym v. Gordon and ap-
plied "center of gravity" reasoning substantially as Justice Fuld had
presented it in both A uten and Babcock as well as in his Dym v. Gordon
dissent.
The series of New York cases constituted a gradual progression.
From straight lex loci delicti ameliorated by result-selective characteri-
zation 7 the move in torts cases to the present somewhat uncertain reli-
ance upon comparison of governmental interests in the light of New
York (forum) policy was achieved slowly and with several dissents. In

12. 305 N.Y. 288, 113 N.E.2d 424 (1953).

13. 308 N.Y. 155, 124 N.E.2d 99 (1954). The next major contracts case was Haag v.
Barnes, 9 N.Y.2d 554, 175 N.E.2d 441, 216 N.Y.S.2d 65 (1961), in which the conclu-
sion, that Illinois was the "center of gravity" of a child support transaction which also
involved substantial New York contacts, was thereafter severely criticized. See Ehren-
zweig, The "Bastard" in the Conflict of Laws-A National Disgrace, 29 U. CHI. L.
REv. 498 (1962). Since the dominance of contacts which determines "center of gravity"
must be qualitatively (subjectively) measured, there is bound to be room for difference
of opinion, in close cases, as to which state's contacts are dominant.
14. 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963). Accord, Long v. Pan,
American Airways, 17 N.Y.2d 337, 213 N.E.2d 796, 266 N.Y.S.2d 513 (1965).
15. 16 N.Y.2d 120, 209 N.E.2d 792, 262 N.Y.S.2d 463 (1965).
16. 24 N.Y.2d 569, 249 N.E.2d 394, 301 N.Y.S.2d 519 (1969).
17. Loucks v. Standard Oil Co. of N.Y., 224 N.Y. 99, 120 N.E. 198 (1918), typified
the New York attitude for many years. See Kaufman v. American Youth Hostels, Inc.,
5 N.Y.2d 1016, 158 N.E.2d 128, 185 N.Y.S.2d 268 (1959), aflg 6 App. Div. 2d 223,
177 N.Y.S.2d 587 (1958). This attitude persisted through the time of Kilberg v. North-
east Airlines, Inc., 9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (1961) in which,
however, the device of characterizing measure of damages as a "procedural" problem
was employed to avoid application of the liability-limiting law of the place of the tort.
 19721 "NEW CHOICE OF LA W

non-torts cases the progression was smoother, though probably still

incomplete. In Babcock, the method was one of merely identifying the
physical contacts with the respective states and determining which
state's contacts were most significant, qualitatively not quantitatively,
though some commentators read into the opinion their own ideas of the
direction in which the law should move." Subsequent cases soon equated
the qualitative significance of contacts with the comparative significance
of governmental interests discoverable from the contacts. From 1967 on
nearly every New York Court of Appeals case on choice of law talked
about that state's "interest" in the facts and their consequences, as
compared with the "interest" of other states in them. Usually the New
York interest was deemed to dominate, 9 though not always. 20 Some of
the cases dwelt on New York "policy" or "public policy," found to
favor one rule of law or the other, usually the New York rule. 21 This
has been recognized occasionally as a preference for "the better rule"
of law.2 2 Finally, in the Appellate Division, there has been a commit-

18. See Cavers, Cheatham, Currie, Ehrenzweig, Leflar, & Reese, Comments on
Babcock v. Jackson, 63 COLUM. L. REV. 1212 (1963).
19. In re Estate of Chrichton, 20 N.Y.2d 124, 133, 228 N.E.2d 799, 805, 281
N.Y.S.2d 811, 819 (1967): "The choice of law problem here should be resolved by an
examination of the contacts. . . for the purpose of determining which of these jurisdic-
tions has the paramount interest in the application of its law;" Tooker v. Lopez, 24
N.Y.2d 569, 576, 249 N.E.2d 394, 398, 301 N.Y.S.2d 519, 525 (1969): "If the facts are
examined in the light of the policy considerations which underlie the ostensibly conflict-
ing laws it is clear that New York has the only real interest . ... "
20. In re Estate of Clark, 21 N.Y.2d 478, 236 N.E.2d 152, 288 N.Y.S.2d 993 (1968)
(interests of Virginia, domiciliary state, held greater than that of New York in widow's
right to elect against taking under deceased husband's will).
21. In Miller v. Miller, 22 N.Y.2d 12, 237 N.E.2d 877, 290 N.Y.S.2d 734 (1968),
Judge Keating's majority opinion touches upon New York's policy favoring full recov-
ery in death cases, a policy which was expressly relied upon as an alternative ground
for decision in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 172 N.E.2d 526, 211
N.Y.S.2d 133 (1961). In Intercontinental Planning, Ltd. v. Daystrom, Inc., 24 N.Y.2d
372, 248 N.E.2d 576, 300 N.Y.S.2d 817 (1969), in applying New York rather than New
Jersey law to defeat an oral finder's fee claim, Jasen, J., said: "New York law affords
the foreign principals the greatest degree of protection against the unfounded claims of
brokers and finders. This encourages the use of New York brokers and finders by
foreign principals and contributes to the economic development of our state. Our bro-
kers and finders need only ensure that their agreements for compensation comply with
the [New York] statute of frauds to receive the benefits of New York's position as a
business center." Id. at 384, 284 N.E.2d at 583, 300 N.Y.S.2d at 827. This was a frank
reliance upon local policy considerations.
22. See Frummer v. Hilton Hotels International, Inc., 60 Misc.2d 840, 304 N.Y.S.2d
335 (Sup. Ct. 1969) (English comparative negligence, rather than New York contribu-
462 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 21

ment to decision based frankly upon the five choice-influencing consid-

erations2 3 asserted by the present writer. Whatever approach the New
York courts ultimately accept for choice-of-law cases is apparently
going to be an amalgam of commentators' theories. There is no clear
acceptance as yet of any one current theory.
The story in California is similar, though the language used in the
opinions there has not been as diverse as that in New York. California,
like most other states, started out with a traditional acceptance of the
Bealian formulae. 4 Dissatisfaction with mechanical results induced typ-
ical efforts at avoidance by means of the characterization process. In
Emery v. Emery25 a tort claim between parent and child was character-
ized as a family law rather than a tort problem, so that it was governed
by the law of the family domicile (California) which allowed recovery,
rather than by the law of the place of injury (Idaho) which denied
recovery. Grant v. McAuliffe" held that California's survival statute,
rather than Arizona's common law no-survival-of-tort-claims rule, ap-
plied to tort claims arising out of an Arizona automobile collision be-
tween California travelers. This result was achieved by doubly charac-
terizing the survival rule as procedural (forum law governs) and as a
problem in administration of the decedent tortfeasor's personal estate
(domiciliary law governs). At any rate California's "better rule" was
held to govern. Justice Roger J. Traynor wrote the opinions in both
cases, but was quick to acknowledge the unsatisfactoriness of the slip-
2
pery reasoning of characterization. 1
The first case in which California, and Justice Traynor, had the op-
portunity to break away from the old choice-of-law mechanics was

tory negligence rule, applied, with reference to New York rule as an "antique heritage
of an older day" followed by a statement that "resort to the 'better law' principle might
be the honest and simple solution, which would also lead to the adoption of England's
rule as the controlling law here." Id. at 849, 304 N.Y.S.2d at 344.) For a case implying
preference for the "better law," see McKendrick v. Newport News Shipbuilding &
Drydock Co., 59 Misc.2d 994, 302 N.Y.S.2d 124 (1969).
23. Pahmerv. Hertz Corp., 36 App. Div.2d 252, 319 N.Y.S.2d 949 (1971) (New York
ordinary negligence law applied as against sister state guest statute).
24. Loranger v. Nadeau, 215 Cal. 362, 10 P.2d 63, 84 A.L.R. 1264 (1932); Hudson
v. Von Hamm, 85 Cal. App. 323, 259 P. 374 (1927).
25. 45 Cal.2d 421, 289 P.2d 218 (1955).
26. 41 Cal.2d 859, 264 P.2d 944, 42 A.L.R.2d 1162 (1953).
27. Traynor, Is This Conflict Really Necessary?, 37 TEx. L. REv. 657, 670 n. 35
(1959): ". . . I would make no more apology for it than that in reaching a rational result
it was less deft that it might have been to quit itself of the familiar speech of choice of
law."
19721 "NEW CHOICE OF LA W

Bernkrant v. Fowler 8 in 1961. It involved the validity of an oral con-

tract, made in Nevada between a Nevada resident and a person possibly
domiciled in California, for the discharge of a debt which originally
arose out of a sale of Nevada land. The contract was valid by Nevada
law but bad by California's statute of frauds. In sustaining the contract
by applying Nevada law to it the court's reasoning embraced just about
all modern non-Bealian theory. Preference for "the better rule of law"
was implicit in a reference to "the basic policy of upholding the expecta-
tions of the parties by enforcing contracts valid under the only law
apparently applicable" 29 and the statement "we can give effect to the
common policy of both states to enforce lawful contracts." 3 The points
of contact with each state, in the facts, were listed, indicating major
contacts with Nevada satisfying the "center of gravity" or "dominant
contacts" approach then used in New York. 3 Brainerd Currie's "gov-
ernmental interests" analysis was expressly cited and relied upon. The
result pleased almost every modern conflicts theorist. That was true also
of the same judge's 1967 opinion in Reich v. Purcell,32 holding that
Ohio law (or California-Ohio law) 3 3 controlled the damages issue in
an action for wrongful death suffered in a Missouri auto collision, the
action having been brought by former Ohio residents now domiciled in
California against a California defendant. The Missouri $25,000 limita-
tion on death recoveries was rejected. Again, the "most significant rela-
tionship" (dominant contacts), the comparison of "governmental inter-
ests" (citing Currie), and concern for the relevant "choice-influencing
considerations" including an unstated but evident preference for the
California-Ohio "better rule" setting no top limit on wrongful death
recoveries, all served to justify the result reached, and all the modern
theorists hastened to approve the case, each seeing in the opinion a
reflection of his own theories.3 4

28. 55 Cal.2d 588, 360 P.2d 906, 12 Cal. Rptr. 266 (1961). For a forerunner case,
see People v. One 1953 Ford Victoria, 48 Cal.2d 595, 311 P.2d 480 (1957).
29. 55 Cal.2d at 591, 360 P.2d at 909, 12 Cal. Rptr. at 269.
30. Id. at 592, 360 P.2d at 910, 12 Cal. Rptr. at 270.
31. See notes 13, 14supra.
32. 67 Cal.2d 551, 432 P.2d 727, 63 Cal. Rptr. 31 (1967). Later cases from Califor-
nia's intermediate courts have followed the same pattern. Fuller v. Greenup, 267 Cal.
App.2d 10, 72 Cal. Rptr 531 (1968); Ryan v. Clark Equip. Co., 268 Cal. App.2d 679,
74 Cal. Rptr. 329 (1969).
33. See Leflar, Comment on Reich v. Purcell, 15 U.C.L.A. L. REV. 637, 640 (1968).
34. This unanimity of variant approvals appears, inter alia, in Cavers, Cheatham,
Currie, Ehrenzweig, Gorman, Horowitz, Kay, Leflar, Rosenberg, Scoles, Trautman, &
Weintraub, Comments on Reich v. Purcell, 15 U.C.L.A. L. REv. 551 (1968).
464 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 21

Pennsylvania's ambiguously reluctant move toward modern choice-

of-law rules still pulls that state in several directions at once. The first
case breaking away from Bealian mechanics was Griffith v. United Air
Lines, Inc.,3" which used a combination of dominant contacts and inter-
est analysis to sustain application of Pennsylvania's unlimited death
recovery rule, rather than Colorado's top-limit-on-recovery rule, in an
action for death in a Colorado air crash on a planned air flight from
Pennsylvania to Arizona. Other decisions thereafter employed essen-
tially the same combinations of reasoning. 6 Then came Cipolla v.
Shaposka,37 creating uncertainty anew. The factual contacts in a case
involving a Delaware automobile accident were about evenly divided
between Pennsylvania and Delaware. The majority opinion favored Del-
aware law partly by emphasizing the total Delaware contacts and partly
for fairly sophisticated territorialist place-of-the-tort reasons. Chief Jus-
tice Bell, who had dissented in Griffith on straight law-of-place-of-injury
grounds, this time concurred on the same territorialist reasoning. But
Justice Roberts, who had in Griffith pioneered the modernization move,
dissented, saying that analysis in terms of all the relevant choice-
influencing considerations called for application of Pennsylvania law. It
is hard to say exactly what the case stands for. This uncertain state of
the law appears to be typical of the situation in a good many jurisdic-
tions.
To be contrasted are the decisions in a few states whose courts have
moved more firmly into acceptance of truly modern conflicts law. First
among these was New Hampshire, where Chief Justice Frank Kenison
in Clark v. Clark3s held that New Hampshire's ordinary negligence rule
rather than Vermont's host-guest statute should govern torts claims
arising out of New Hampshire residents' involvement in a Vermont
automobile accident. The opinion was phrased in terms of Leflar's five
choice-influencing considerations, and it was evident that the court's
conclusion was affected by all the policy factors that underlie recent

35. 416 Pa. 1, 203 A.2d 796 (1964). The scholarly opinion by Justice Roberts over-
ruled Vant v. Gish, 412 Pa. 359, 194 A.2d 522 (1963), a place-of-the-tort opinion written
by Justice Roberts himself only a year earlier.
36. McSwain v. McSwain, 420 Pa. 86, 215 A.2d 677 (1966); Kuchinic v. McCrory,
422 Pa. 620, 222 A.2d 897 (1966). See also Scott v. Eastern Air Lines, Inc., 399 F.2d
14 (3d Cir. 1968), undertaking to apply Pennsylvania's conflicts rule. There were four
separate opinions written by the seven en banc judges.
37. 439 Pa. 563, 267 A.2d 854 (1970). See Symposim on Cippola v. Shaposka, 9
DUQUESNE U.L. REv. 347 (1971), with eight contributing scholars.
38. 107 N.H. 351, 222 A.2d 205 (1966).
19721 "NEW CHOICE OF LA W

choice-of-law scholarship. Subsequent New Hampshire cases 39 fitted

into this ecumenical pattern, and the state's latest holding, in Taylor v.
Bullock, 0 reaffirms the dominance of the same broad policy considera-
tions by applying them to sustain a decision that New Hampshire law
governs (no interspousal immunity) in an action between Massachusetts
spouses for injuries suffered in a New Hampshire automobile accident.
The court's reasoning afforded sensible justification for application of
New Hampshire's "better law" on facts almost exactly the converse of
those in Clark v. Clark.
Rhode Island has achieved a similar stability in its choice-of-law
problems" by following New Hampshire's example. There also the five
choice-influencing considerations afford the approach that enables the
court to take into account all the policies which, in the view of post-
Bealian scholars, properly motivate choice-of-law decision.
The Wisconsin cases provide the most instructive history available
from any state. They run the historical gamut. In the beginning Wiscon-
sin was as orthodox in its adherence to Bealian conceptualism as was
any state. Buckeye v. Buckeye"2 was a leading case. Defendant's negli-
gent driving in Illinois injured plaintiff. Then the parties married each
other and became domiciled in Wisconsin. The after-marriage would
bar recovery under Illinois law, though not under Wisconsin law. The
Bealian holding was that this presented a tort problem, governed by the
law of the place of injury, so that there could be no recovery. Then in
the Haumschild case 3 the Wisconsin court characterized an essentially
similar set of facts as presenting not a tort but rather a family law
problem, so that the law of the spouses' Wisconsin domicile could be,
and was, held to permit recovery. Buckeye v. Buckeye was overruled"

39. Doiron v. Doiron, 109 N.H. 1, 241 A.2d 372 (1968) (interspousal tort action
allowed under New Hampshire law for New Hampshire injuries though spouses later
moved to Massachusetts); Stephan v. Sears, Roebuck & Co., 110 N.H. 248, 266 A.2d
855 (1970) (products liability recovery allowed under New Hampshire law).
40. 279 A.2d 585 (N.H. 1971). Compare Schneider v. Schneider, 110 N.H. 70, 260
A.2d 97 (1969), with Taylor v. Bullock, 279 A.2d 585 (N.H. 1971), the former of which
may now be superseded by the latter. Both opinions were written by Justice Lampron.
41. Woodward v. Stewart, 243 A.2d 917 (R.I. 1968). This case is similar to Clark v.
Clark, 107 N.H. 351, 22 A.2d 205 (1966); Brown v. Church of Holy Name of Jesus,
252 A.2d 176 (R.I. 1969) (Massachusetts charitable immunity rule not applied to Mas-
sachusetts injury, between Rhode Island parties). See also Tiernan v. Westext Trans-
port, Inc., 295 F. Supp. 1256 (D. R.I. 1969) (ceiling on wrongful death recovery).
42. 203 Wis. 248, 234 N.W. 342 (1931).
43. Haumschild v. Continental Cas. Co., 7 Wis.2d 130, 95 N.W.2d 814 (1959).
44. See Hancock, The Rise and Fall of Buckeye v. Buckeye: Marital Immunity for
 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 21

on characterization grounds. But this reasoning too was unsatisfactory.

In the next case,4 5 it compelled the application of Illinois domiciliary
law, precluding interspousal liability upon an Illinois husband for inju-
ries negligently inflicted on his wife in Wisconsin. The family law char-
acterization, once formalized, was as rigid as the old place of injury rule.
Seeking reasonable flexibility, the court employed still another ap-
proach in the next case, Wilcox v. Wilcox.4" Spouses domiciled in Wis-
consin were temporarily in Nebraska, when the wife was injured by the
husband's negligent automobile driving. The Nebraska host-guest stat-
ute would bar recovery. This time a result consistent with Haumschild,
allowing recovery under Wisconsin's law, was based not on a family law
characterization of the problem but instead upon "center of gravity"
and "most significant relationships" analysis, with reliance largely upon
the New York cases4 7 as authority, and to some extent upon Brainerd
Currie's governmental interest theory. 8 Thus a third, but still tentative,
approach was employed.
Wisconsin's solution to the problem came in 1967, in Heath v.
Zellmer,49 when the court at least enabled itself to give the real reasons
for its results. The question was whether the Ohio-Indiana host-guest
statutes, or the Wisconsin ordinary negligence rule, should govern the
rights of Ohio and Indiana parties arising out of alleged negligence in
the operation in Wisconsin of an Indiana car, causing injuries in Wis-
consin. The holding that Wisconsin law should govern relied upon the
New Hampshire decision in Clark v. Clark50 and used the same five
choice-influencing considerations, thus permitting the forum court to
make a choice of law that correlates the relevant interests in predictabil-
ity of results, maintenance of interstate order, simplification of the
judicial task, advancement of the forum's governmental interests, and
preference for the "better rule" of law which in this instance was clearly
deemed to be Wisconsin's ordinary negligence rule. This studied combi-
nation of all the modern approaches to choice-of-law theory has, since

Torts in the Conflict of Laws, 29 U. CHI. L. REv. 237 (1962). The overruling was
foreshadowed by the somewhat ambiguous decision in Jaeger v. Jaeger, 262 Wis. 14,
53 N.W.2d 740 (1952).
45. Haynie v. Hanson, 16 Wis.2d 299, 114 N.W.2d 443 (1962). The action was by a
joint tortfeasor for contribution from the husband.
46. 26 Wis.2d 617, 133 N.W.2d 408 (1965).
47. Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99 (1954); Babcock v. Jackson, 12
N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).
48. See note 5 supra.
49. 35 Wis.2d 578, 151 N.W.2d 664 (1967).
50. See note 38 supra.
19721 "NEW CHOICE OF LA W

1967, been more fully developed in Wisconsin than in any of the other
states. A succession of cases there illustrates the appropriate application
of the choice-influencing considerations not only to a variety of tort
problems 5 but to contracts problems 52 as well.
Recent Kentucky cases reach comparable results, though on more
primitive reasoning. A 1967 case 5 held that Kentucky's ordinary negli-
gence law, rather than Indiana's guest statute, would control claims
arising out of an Indiana automobile injury when all the other contacts
(center of gravity) including residence of both parties were in Kentucky.
Two later cases54 presented the converse situation. They involved auto-
mobile accidents in Kentucky giving rise to causes of action between
husbands and wives all of whom were residents of other states. The same
"dominant contacts" reasoning which supported application of Ken-
tucky law in the 1967 case would seem to have supported application
of the other-state spousal immunity laws in the later cases. Kentucky
law, permitting interspousal recovery, was, however, applied. The rea-
soning, apart from deliberate preference for forum law, was meager.
"The fact that we will apply Kentucky law where Kentucky people have
an accident in Ohio or Indiana does not require that we apply Ohio or
Indiana law where people of one of those states have an accident here,
because the basis of the application is not a weighing of contacts but
simply the existence of enough contacts with Kentucky to warrant
applying our law."'5 This was a simple and outright preference for the
forum state's own "better law." Wisconsin would have reached the same
result, probably for the same real reasons, but the reasons would have
been set out with greater specificity.
Nearly a dozen other jurisdictions have in the last years, with consid-
erable variations in language and reasoning, rejected Bealian mechanis-

51. Zelinger v. State Sand & Gravel Co., 38 Wis.2d 98, 156 N.W.2d 466 (1968) (guest
statute, parental immunity); Conklin v. Horner, 38 Wis.2d 468, 157 N.W.2d 579 (1968)
(host-guest case). Several federal cases have also applied the Wisconsin choice-
influencing considerations approach. Geehan v. Monahan, 382 F.2d 111 (7th Cir. 1967);
Korth v. Mueller, 310 F.Supp. 878 (W.D. Wis. 1970); Decker v. Fox River Tractor Co.,
324 F.Supp. 1089 (E.D. Wis. 1971); Satchwill v. Volrath Co., 293 F.Supp. 533 (E.D.
Wis. 1968); Clough v. Liberty Mut. Ins. Co., 282 F. Supp. 553 (E.D. Wis. 1968).
52. Haines v. Mid-Century Ins. Co., 47 Wis.2d 442, 177 N.W.2d 328 (1970); Urham-
mer v. Olson, 39 Wis.2d 447, 159 N.W.2d 688 (1968). See generally Coyne, Contracts,
Conflicts, and Choice-Influencing Considerations,1969 U. ILL. L. FORUM 323.
53. Wessling v. Paris, 417 S.W.2d 259 (Ky. 1967).
54. Arnett v. Thompson, 433 S.W.2d 109 (Ky. 1968); Layne v. Layne, 433 S.W.2d
116 (Ky. 1968).
55. Arnett v. Thompson, 433 S.W.2d 109, 113 (Ky. 1968).
468 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 21

tics and embraced modern approaches to choice of law. These include

the District of Columbia, 6 Idaho, 7 Illinois,58 Iowa,59 Maine," Minne-
sota,6 Mississippi, 2 Missouri, 3 New Jersey,64 and Ohio." Washing-

56. Gaither v. Myers, 404 F.2d 216, affg 232 A.2d 577 (D.C. App. 1967). District
of Columbia law makes a car owner who leaves his keys in the ignition liable to persons
injured by a thief stealing the car. Maryland law does not. Defendant left the keys in
his car in the District of Columbia, whereupon a thief injured plaintiff with the car in
Maryland. Governmental interest analysis was employed to permit recovery under Dis-
trict of Columbia law.
57. Rungee v. Allied Van Lines, Inc., 92 Idaho 718, 449 P.2d 378 (1968) (most
significant relationship approach to a contract case).
58. Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970) (Illinois law governs death
by drowning on Iowa side of Mississippi River when all parties were Illinois residents;
"most significant relationship" reasoning in opinion); Aurora Natl. Bank v. Anderson,
268 N.E.2d 552 (I11.App. 1971). This result was predictable after Wartell v. Formusa,
34 III. 2d 57, 213 N.E.2d 544 (1966) (husband-wife case).
59. Berghammer v. Smith, 185 N.W.2d 226 (Iowa 1971) (Minnesota law permitting
recovery for loss of consortium applied, after Iowa auto accident); Fuerste v. Bemis,
156 N.W.2d 831 (Iowa 1968) (Iowa guest statute applied between Iowa parties after
Wisconsin auto accident; "better law" idea not used).
60. Beaulieu v. Beaulieu, 265 A.2d 610 (Me. 1970) (Maine law applied to Massachu-
setts accident, on dominant contacts and governmental interest reasoning).
61. Minnesota was a pioneer in breaking away from Bealian mechanics in Schmidt
v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957) (Minnesota dramshop
law applied to injuries suffered in Wisconsin car wreck caused by intoxication produced
by illicit Minnesota liquor sales), but has not yet fully clarified the reasoning that
controls its decisions. Schneider v. Nichols, 280 Minn. 139, 158 N.W.2d 254 (1968)
(North Dakota guest statute not applied in action for North Dakota automobile acci-
dent injuries; Minnesota contacts deemed predominant).
62. Mitchell v. Craft, 211 So.2d 509 (Miss. 1968) (Mississippi comparative negli-
gence rule, rather than Louisiana contrioutory negligence rule, applied to two-car auto-
mobile crash in Louisiana between Mississippi residents).
63. Kennedy v. Dixon, 439 S.W.2d 173 (Mo. 1969) (rejects application of Indiana
guest statute to Indiana automobile injuries between Missouri parties, by combined
dominant contacts, governmental interest, choice-influencing considerations and "better
law" reasoning). See Comment, Choice of Law Rules in Tort Cases-A Coming Con-
flict in Missouri, 33 Mo. L. REV. 81 (1968).
64. Pfau v. Trent Aluminum Co., 55 N.J. 511, 263 A.2d 129 (1970) (most significant
contacts and governmental interests reasoning employed to avoid Iowa guest statute,
as to Iowa auto injury, in favor of ordinary negligence law of Connecticut-New Jersey);
Van Dyke v. Bolves, 107 N.J. Super. 338, 258 A.2d 372 (1969) (New York held to have
greater "interest" in reference to New Jersey accident). For federal applications of New
Jersey conflicts law, see Purcell v. Kapelski, 444 F.2d 380 (3d Cir. 1971); Foster v.
Maldonado, 315 F. Supp. 1179 (D.N.J. 1970), appeal denied, 433 F.2d 348 (3d Cir.
1971).
65. Fox v. Morrison Motor Freight, Inc., 25 Ohio St. 193, 267 N.E.2d 405 (1971)
19721 "NEW CHOICE OF LA W

ton" may belong in the list. England too has moved in the same direc-
tion."
Federal courts obligated under Klaxon Co. v. Stentor Elec. Mfg.
Co.8 to follow state conflicts law sometimes assume that state courts
which have not recently re-examined their choice-of-law holdings will
surely move to a modern view when they have the opportunity, so that
it is proper for the federal court to apply the modern rules on the
assumption that they constitute state law even though the state court has
not said so. 6 The Eighth Circuit Court of Appeals performed this serv-
ice for North Dakota in 1970, in Trapp v. 4-10 Investment Corp.,7 0
attributing to that state a "most significant interest in the present litiga-
tion" test. This was deemed to require application of the North Dakota
dramshop law to a set of facts whose contacts, numerically, were mostly
in Minnesota. The defendant in North Dakota illegally sold two kegs
of beer to a minor who was a Minnesota resident. The beer was con-
sumed by Minnesota high school students at a party in Minnesota after
which one of the students, a Minnesota minor, negligently injured plain-
tiffs, also residents of Minnesota, in an automobile collision on a Min-
nesota highway. The conclusion that North Dakota had the "most sig-
nificant interest" in these facts emphasized the qualitative rather than
the quantitative character of the contacts, and apparently regarded the
one North Dakota contact as all-important. It would be difficult to
understand the decision if an under-the-table preference for the forum
state's own plaintiff-favoring law did not show through so clearly. Other
instances in which federal courts have assumed a modernized choice-of-
law approach in particular state courts are found in Texas71 and Okla-
72
homa.

(Illinois top limit on recovery not applied to wrongful death of Ohio resident killed in
Illinois).
66. Potlatch No. I Federal Credit Union v. Kennedy, 76 Wash.2d 806, 459 P.2d 32
(1969) (most significant relationship and governmental interest in a contract case). See
Trautman, Evolution in Washington Choice of Law: A Beginning, 43 WASH. L. REv.
309 (1967).
67. Chaplin v. Boys, [1969] 3 W.L.R. 322, affg [1968] 2 Q.B. 1. See Graveson,
Towards Applicable Modern Law in Tort, 85 L.Q. REV. 505 (1969).
68. 313 U.S. 487 (1941).
69. Cf. Note, Strict Liability in Federal Courts: Problems of PredictingState Law
under Erie, 55 CORNELL L.Q. 274 (1970). See also note 80 infra.
70. 424 F.2d 1261 (8th Cir. 1970).
71. See Couch v. Mobil Oil Corp., 327 F. Supp. 897 (S.D. Tex. 1971) (injury to Texas
resident in Libya; Texas law applied).
72. Williams v. Texas Kenworth Co., 307 F. Supp. 748 (W.D. Okla. 1969) (Okla-
 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 21

In admiralty cases the United States Supreme Court 3 and the courts
of appeals74 have made it clear that the old mechanical rules have been
replaced by choice-of-law approaches which, though not yet completely
modernized or clarified, provide a fair foundation for future acceptance
of a sound policy-oriented handling of conflicts problems.
An odd federal aberration, induced perhaps by too urgent an effort
to avoid anachronistic rules, appears in Lester v. Aetna Life Ins. Co.,"
a case that arose in Louisiana. The action was on a life insurance policy
issued in Wisconsin to a Wisconsin resident who after five years moved
to Louisiana where he paid further premiums for a time, changed bene-
ficiaries, borrowed on the policy, failed to pay later premiums, and died.
The insurer, contending that the policy had lapsed, relied upon a notice
of termination which was effective by Wisconsin law but inadequate by
Louisiana law. Under Klaxon 76 the federal court was required to follow
Louisiana conflicts law, which was represented by a Louisiana Supreme
Court decision 7 handed down only a few months previously. The Louis-
iana court, unfortunately, had held with the old "place-where-the-
contract-was made-governs" rule. Under that rule there was no question
that the Louisiana state court would have held that Wisconsin law
governed and that the policy was as dead as the insured. Yet a three-
judge panel of the fifth circuit reached the opposite result.
The reasoning was that the case presented a "false conflict," by which
the court meant that there was no conflict of laws problem in the case.
This strange conclusion grew out of misreliance upon the Brainerd Cur-
rie method of solving conflicts problems by identifying the governmen-

homa law applied to allow higher damages award for Missouri death). But see Mills v.
Hoflich, 326 F. Supp. 95 (W.D. Okla. 1971) (law of Texas, place of injury, applied in
guest statute case, with statement that Oklahoma still follows old rule in tort cases).
73. Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306 (1970), affg 412 F.2d 919 (5th
Cir. 1969), reconfirmed the most significant relationships approach used in Lauritzen
v. Larsen, 345 U.S. 571 (1953) but, because significant contacts were almost evenly
divided between Greece and the United States, fell back largely on policy considerations
to support its conclusion that the American Jones Act was governing.
74. McClure v. United States Lines Co., 368 F.2d 197 (4th Cir. 1966); Tsakonites v.
Transpacific Carriers Corp., 368 F.2d 426 (2d Cir. 1966); Symonette Shipyards, Ltd.
v. Clark, 366 F.2d 464 (5th Cir. 1966); Siegelman v. Cunard White Star, Ltd., 221 F.2d
189 (2d Cir. 1955); Noel v. Airponents, Inc., 169 F. Supp. 348 (D.N.J. 1958) (airplane
accident over high seas).
75. 433 F.2d 884 (5th Cir. 1970), noted in 40 U. CINc. L. REv. 356 (1971) and 24
VAND. L. REV. 615 (1971).
76. 313 U.S. 487 (1941).
77. Johnson v. St. Paul Mercury Ins. Co., 256 La. 289, 236 So.2d 216 (1970).
19721 "NEW CHOICE OF LA W

tal interests of the states which have contacts with the facts and then
applying the law of the state, usually the forum, whose interests in the
case predominate. Currie said that if only one state had a substantial
interest in a given set of facts its law should govern. To identify his
proposed choice-of-law rule he called this a "false conflict" situation.
He did not mean that there was no conflict of laws in the case, but rather
that there was no conflict of governmental interests, which premise
should in turn solve the conflict of laws problem."8
The fifth circuit panel skipped the central part of the syllogism. They
saw clearly that Louisiana's interests in the case substantially out-
weighed Wisconsin's, since the significant relationships had been moved
from Wisconsin to Louisiana long before the asserted policy lapse. They
accordingly applied the "false conflict" label, and jumped to the conclu-
sion that this meant there was no conflict of laws in the case, so that
Klaxon did not apply. Thus they solved the conflicts problem contrary
to the state law solution for it. One is tempted to believe that the court
was tacitly moved by its reasonable preference for the "better law" of
Louisiana which required a superior form of notice to achieve termina-
tion of insurance policies. Perhaps Louisiana will soon adopt the choice-
influencing considerations approach to choice of law, and give appropri-
ate effect to its own governmental interests as well as to a preference
for the better rule of law, in choosing between laws.79 Until it does,
however, it seems that federal courts in Louisiana are supposed to fol-
low Louisiana conflicts rules, outmoded though they be.
This does not mean that federal courts must play no part in the
modernization of conflicts law. When state law is truly uncertain, as it
was not in Louisiana, or when state courts have already indicated their
acceptance of modern theory but have not yet worked out the details,
federal courts are not only entitled but are compelled, in deciding th eir
cases, to guess at how the state court would deal with the substantive
issues in the case.80 In such circumstances the guess should be that the

78. For an accurate statement of Currie's theory as one of a "false conflict of inter-
ests." not a "false conflict of laws," see W. REESE & M. ROSENBERG, CASES AND
MATERIALS ON CONFLICT OF LAWS 523 (step 2), 524 (6th ed. 1971).
79. Cf Johnson v. St. Paul Mercury Ins. Co., 218 So.2d 375 (La. App. 1969), the
intermediate appellate opinion superseded by the Supreme Court decision. See also
Johnson v. St. Paul Mercury Ins. Co., 256 La. 289, 236 So.2d 216, 224 (Sanderi, J.,
dissenting).
80. See Mason v. Emery Wheel Works, 241 F.2d 906 (1st Cir.), cert. denied, 355 U.S.
815 (1957), which permitted a federal court applying Mississippi law to anticipate a
change therein that had not yet been announced by the Mississippi Supreme Court;
Weekes v. Atlantic Nat'l Ins. Co., 370 F.2d 264 (9th Cir. 1966) (harsh Arizona law on
472 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 2

state court would do the best possible job of updating its law, and the
federal court should strive for equal quality in its application of state
law. A federal opinion can then serve as persuasive precedent when the
state court later has the opportunity to deal with the same problem.
Another factor in the modernization of the law of choice of law in
America has undoubtedly been section 1-105 of the Uniform Commer-
cial Cbde:
(1) Except as provided hereafter in this section, when a transac-
tion bears a reasonable relation to this state and also to another
state or nation the parties may agree that the law either of this state
or of such other state or nation shall govern their rights and duties.
Failing such agreement this Act applies to transactions bearing an
appropriate relation to this state.
Paragraph (2) of section 1-105 then lists excepted areas as to which a
few separate sections of the Code prescribe different choice-of-law
rules. The most notable provision in section 1-105 is the sentence declar-
ing that, if the parties have not specified the governing law (as often they
will not have done) "this Act applies"-the good law of this state gov-
erns. The idea was that the parties to a transaction should have auton-
omy 8 in their choice of governing law, but if they made no choice, then
the "better law" of the Code should govern. There could be no question,
at least in any state that enacted the Code, but that it constitutes'the
wisest and best drafted body of commercial law that exists in any state
or nation in the world.
When the Code was promulgated, sections 9-102 and 9-103, in the
vastly important article on secured transactions, were framed as one of
the major exceptions to section 1-105. By 1971 the general adoption of
the Code in the United States had minimized conflicts problems having
to do with secured transactions and had equally emphasized the sound-
ness of the substantive provisions in Article 9. The National Conference
of Commissioners on Uniform State Laws in that year deleted all refer-
ence to conflicts questions from section 9-102, and amended section 9-
103 to eliminate all "validity" provisions from it, so that hereafter all
questions as to the creation or validity of security interests will be
governed, in adopting states, by the general rule laid down in section 1-

res judicata and splitting causes of action.) Cf. Wright, The Federal Courts and the
Nature and Quality of State Law, 13 WAYNE L. REV. 317 (1967). See also notes 69-72
supra.
81. Cf Tuchler, Boundaries to Party Autonomy in the Uniform Commercial Code,
11 ST. Louis L.J. 180 (1967).
19721 "NEW CHOICE OF LA W

105. Thus the application of the "better law" consideration is broadened

2
still further in the Code.8
It is interesting that this choice-of-law preference for the "better"
body of commercial law, to be found in the Code, was promulgated not
by conflicts of laws theorists (though there were a few of them who
worked on the Code) but rather by the whole group of lawyers, judges,
and law teachers who were Commissioners on Uniform Laws or mem-
bers of the American Law Institute and who recognized that sounder
results would be reached in commercial disputes if the rules laid down
in the Code were followed, regardless of territorialist or other
jurisdiction-selecting conflicts theories. They deliberately laid down a
rule for choice between laws and not for choice between jurisdictions."
The Restatement (Second) of Conflicts of Laws,8" published in 1971,
carries forward the same ecumenical approach.85 As previously indi-
cated, 86 section 6 with its list of seven choice-of-law principles, or
"factors," is the central section of the choice-of-law chapters in the
Restatement, and the sections dealing with specific problems in tort,
contract, property, family law, and other areas nearly all refer back to
it. The references back do not undertake to say that choice-of-law deci-
sions should be immediately controlled by the seven enumerated factors.
Rather, the test asserted is one of "most significant relationship;" the
governing law on almost any issue is said to be that of the state which
has the "most significant relationship" to the facts and the issue in
question. But "most significant relationship" is in turn explained in
terms of the "factors" enumerated in section 6. These factors, it is
submitted, are thoroughly sound, but not quite as comprehensive as they
should be. They make it reasonably clear that a forum court, in choos-

82. See Nordstrom, Choice of Law and the Uniform Commercial Code, 24 OHIO ST.
L.J. 364 (1963); Braucher, The Legislative History of the Uniform Commercial Code,
58 COLUM. L. REv. 798, 810 (1958).
83. ". . . [A] conflict-of-laws decision refusing to apply a purely local statute or rule
of law to a particular multi-state transaction may not be valid precedent for refusal to
apply the Code in an analogous situation. Application of the Code ... may be justified
by its comprehensiveness, by the policy of uniformity, and by the fact that it is in large
part a reformulation and restatement of the law merchant and of the understanding of
a business community which transcends state and even national boundaries.
UNIFORM COMMERCIAL CODE § 1-105, Comment 3.
84. See note 10 supra.
85. "And who can doubt the ecumenicalism of the Second Restatement?" Peterson,
Weighing Contacts in Conflicts Cases: The Handmaiden Axiom, 9 DUQUESNE L. REV.
436, 441 n.30 (1971).
86. See note 11 supra.
474 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 21

ing between the laws of different states, will look at the content of the
competing rules of law as well as at the states (jurisdictions) whose laws
compete. The omitted factor, or choice-influencing consideration, in
terms of choice between laws as distinguished from choice between
jurisdictions, is the court's preference, often operative but sometimes
not stated in so many words, for what it regards as the better rule of
law. If this had been specifically included in section 6, the Restatement's
list of choice-influencing considerations would have been virtually com-
plete. As it is, it is almost complete 8 and provides a fair explanation
of most truly modern choice-of-law decisions.
The point which this comment emphasizes is that the modern deci-
sions, regardless of exact language, are all substantially consistent with
each other. Whether the opinion language is that of Restatement (Sec-
ond) most significant relationship, or of Brainerd Currie's governmental
interest analysis, or of Leflar's choice-influencing considerations, or of
Cavers' principles of preference, or of Ehrenzweig's more diverse ana-
lyses, the real reasons and the result are likely to be about the same.
As far as opinion language is concerned, the tendency is, quite properly,
to cite all these authors, along with current articles by any other authors
who may have discussed the court's specific problem, plus a selection
of recent judicial opinions which, regardless of reasoning, have broken
away from old-time mechanical choice-of-law rules. Such a collection
of authority will almost surely support any sensible non-mechanical
choice of law that an intelligent and conscientious court is likely to
arrive at.
This is not as simple as an algebraic formula nor a carpenter's rule
of thumb. Nor does it assure any single conflicts theorist of his coveted
place at the right side of the lawmaker's throne. But it seems to be
"where we are at," as far as the current trend in the law of choice of
law is concerned.

87. Cf D. CAVERS, CONTEMPORARY CONFLICTS LAW IN AMERICAN PERSPECTIVE

145, 175 (1970), pointing out the essential harmony between the Restatment (Second)
approach to choice of law, and Leflar's choice-influencing considerations, except for the
"better rule of law" factor.