Most conflict of laws teachers come to their calling because they are fascinated with the intellectual variety of the subject matter and the sense of systemic universality that pervades the legal decisions with which they work. We deal, after all, with some very fundamental aspects of law and the legal system in a world of fascinating abstractions mixed with concrete decisions. Although I have taken no survey, conversations with many of my colleagues suggest that they, as did I, found the course Conflict of Laws in the second or third year of law school to be one that reawakened the intellectual stimulation and excitement which pervades the first semester of law study for most law students. One reason for this fascination is that Conflicts is one of the few remaining legal areas still dominated by common-law decisions and, therefore, by the common-law decision-making process. It is at once arcane and intensely practical. There is a kind of one-to-one relationship between the scholar's work and legal results that is not characteristic of many other legal disciplines.
Professor Lea Brilmayer recognizes that academic commentary takes on more significance in this field than in most others. She is correct. A court may be a Currie Court or a Leflar Court or a Beale or a Reese or a Cavers Court. It may "follow" Brilmayer or Kay or Silberman. It may treat the works of scholars like persuasively authoritative judicial opinions. This is heady stuff in the Ivory Tower; and it proves to our students-and, perhaps, to ourselves, as well-that we can be philosopher kings and guards of the guardians while keeping at least one toe firmly planted amidst the hurly-burly that is the actual practice of law. We are listened to.
This status, however, carries with it a danger for conflict of laws scholars and their scholarship. The danger is that we will come to believe, as I fear many of us already have, that academic inquiry and debate is an end in itself; that it is the theorist and scholar who makes the law; that the courts are so compelled by the power of our logic, the flow of our prose, and the precision of our analysis that they will abandon their role as decision-makers to sit at the feet of the scholars who articulate the rules they cite and forge and temper the theories on which they rely. This is not so.
Conflicts scholars spend a great amount of time talking to each other-and there are not very many of us. Therefore, we talk to the same people a lot. Much of this discussion is dedicated to attacking or supporting each others' theories, rather than determining how judges are applying these theories in the real world of judicial decision making or to determining whether our theories are practically workable where the action counts.
Harold G. Maier,
Baseball and Chicken Salad: A Realistic Look at Choice of law,
44 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol44/iss4/3