The Antebellum Irony of Georgia's Disguised Lex Fori Doctrine

6_APOLINSKY & VAN DETTA ARTICLE.DOCX (DO NOT DELETE) 9/1/20 3:46 PM THE ANTEBELLUM IRONY OF GEORGIA’S DISGUISED LEX FORI DOCTRINE: O WHERE HAVE YOU GONE, BRAINERD CURRIE? JOANNA B. APOLINSKY* & JEFFREY A. VAN DETTA** I. INTRODUCTION Georgia abounds with irony when it comes to choice of law. Con- sider the following: 1. Georgia is one of only nine states that hews to the so-called “traditional territorial” approach to resolve domestic choice-of-law problems in tort cases,1 an approach emphasizing territoriality and fos- silized in the Restatement (First) of Conflict of Laws. *Associate Professor of Law, Atlanta’s John Marshall Law School, Atlanta, Georgia. ** The John E. Ryan Professor of International Business & Workplace Law, Atlanta’s John Marshall Law School, Atlanta, Georgia; Judicial Clerk (1987–1988) to Hon. Roger J. Miner. Judge Miner (1934–2012) served on the U.S. Second Circuit Court of Appeals in New York. During the author’s clerkship year, Judge Miner issued a choice-of-law opinion in a rara avis, a federal dog-bite case. See Bader by Bader v. Purdom, 841 F.2d 38 (2d Cir. 1988). Professor Currie, we suspect, would have been suitably intrigued. Professor Van Detta gratefully acknowledges the efforts of his research assistant, Mats Rosén. 1 See Symeon C. Symeonides, Choice of Law in the American Courts in 2017: Thirty- First Annual Survey, 66 AM. J. COMP. L. 1, 4, 67 (2018); accord Symeon C. Symeonides, Choice of Law in the American Courts in 2018: Thirty-Second Annual Survey, 67 AM. J. COMP. L. 1, 35–36 (2019). 6_APOLINSKY & VAN DETTA ARTICLE.DOCX (DO NOT DELETE) 9/1/20 3:46 PM 150 CUMBERLAND LAW REVIEW [Vol. 50:2 2. Yet Georgia is the birthplace, both personally and profession- ally, of the great conflict-of-laws scholar, Brainerd Currie, who revo- lutionized the discipline by felling the petrified forest created by the traditional choice-of-law rules. Now, Georgia has not only put an entirely idiosyncratic spin on territoriality in choice of law through the recent decision, Coon v. Med- ical Center, Inc.,2 but has along the way also denounced legal realism (curiously referenced as “relativism”). Georgia has revived the view, long ago refuted by Justice Oliver Wendell Homes, Jr., that the common law is “a brooding omnipresence in the sky”3 and eschewed twen- tieth-century notions of federalism in favor of mechanically embracing antebellum precedents from the 1840s.4 This article explores the problems created by the Medical Center decision, including: (a) the fact that the decision effectively, yet sur- reptitiously, morphs a considerable part of Georgia conflicts law into a disguised lex fori doctrine, and (b) the strong possibility that Georgia’s refusal to recognize the actual content of sister-state common law vio- lates the Due Process and Full Faith and Credit Clauses of the U.S. Constitution, as construed by the U.S. Supreme Court in Allstate Insur- ance Co. v. Hague5 and Phillips Petroleum v. Shutts.6 Most significantly, the article proposes that the Georgia Legisla- ture do for the disarrayed field of Georgia choice of law what it did for the disarrayed field of Georgia evidence law: adopt a new code.7 In this case, that could be a choice-of-law code, substantially based upon the Restatement (Second) of Conflict of Laws. However, what would be much more useful is a simple statute adopting a pure lex fori approach limned by the “to the limits of due process” ambit of legislative jurisdiction set forth in the U.S. Supreme Court’s 1981 ruling in All- state Insurance Co. v. Hague.8 The article proceeds in five additional sections (II–VI) and a con- clusion (VII) to show how judicial thinking on Georgia’s choice-of-law rules is intellectually bankrupt, why the legislature must now step in to restore coherence and currency of this crucial area to Georgia’s legal 2 797 S.E.2d 828 (Ga. 2017), aff’g on other grounds, 780 S.E.2d 118 (Ga. Ct. App. 2015). 3 S. Pac. Co. v. Jensen, 244 U.S. 205, 218, 222 (Holmes, J., dissenting). 4 See, e.g., Latine v. Clements, 3 Ga. 426 (Ga. 1847); see Cox v. Adams, 2 Ga. 158 (Ga. 1847). 5 449 U.S. 302 (1981). 6 472 U.S. 797 (1985). 7 See, e.g., Paul S. Milich, Georgia’s New Evidence Code—An Overview, 28 GA. ST. U. L. REV. 379 (2012). 8 449 U.S. at 304. 6_APOLINSKY & VAN DETTA ARTICLE.DOCX (DO NOT DELETE) 9/1/20 3:46 PM 2020] THE ANTEBELLUM IRONY OF GEORGIA’S CHOICE OF LAW 151 environment (particularly for business), what options are available to provide plausible objects for legislative action, and where among these options the optimal solution resides. In Section II, the career of, and contributions to choice of law (including to the thinking of the Restatement (Second)9 by Georgia’s own Brainerd Currie are examined from the focused perspective of his cur- rent status as a “prophet without honor” in the conflicts jurisprudence of his own state. Section III discusses the modern pronouncements on Georgia’s hewing to the “traditional approach” to choice of law, particularly in the era from the publication of the Restatement (Second) of Conflict of Laws in 1971 to the decision in Dowis v. Mud Slingers, Inc.,10 which dismissively criticized the Restatement (Second) and flatly refused to adopt any part of it, declaring that if the traditional Georgia choice-of- law rules were to be changed, that change would have to come from the legislature.11 In this section, we will explore the lex fori tendencies shown by the Georgia Supreme Court and Court of Appeals in tort cases, typically expressed in the readiness of those courts to invoke the public policy exception to applying the lex loci delicti when the choice of law would otherwise disfavor a Georgia party. The Georgia Court of Appeals rode that wave in the Medical Center case when it found that it would violate Georgia public policy to apply Alabama law fa- voring an Alabama plaintiff against a Georgia defendant. The Georgia Supreme Court, however, firmly stopped that wave and considerably narrowed the public policy exception to lex loci delicti. Yet, in so doing, it replaced it with a worse rule that substantially extends, rather than contains, the quest for lex fori in Georgia, despite the lex loci delicti trappings to which it pays lip service. Section IV discusses the Medical Center case and how one of the concurring judges on the Court of Appeals unearthed an antebellum, 9 See John B. Rees, Jr., Choice of Law in Georgia: Time to Consider a Change?, 34 MERCER L. REV. 787, 808 (1983) (noting those “authorities [who] have characterized interest analysis as a preliminary step on the way to the Restatement Second approach.”). 10 621 S.E.2d 413 (Ga. 2005). Without looking very closely at Currie’s work and the fullness of its development, the late Justice Harris Hines wrote him off in a footnote: “Cur- rie’s ‘governmental interest’ approach fails to adequately deal with true conflicts and is easily manipulated by identifying alternative governmental interests of a forum law, thereby leading to forum favoritism.” Id. at 419 n.7. In light of Georgia’s amazing track record of rarely having applied another state’s statute or common law rule in a tort case demonstrated in Section IV, infra, Justice Hines—whom Professor Van Detta met on sev- eral occasions and found to be a sincere and genteel jurist—offers a critique awash in an unintended irony. 11 In Section V, the dissenting opinions of Georgia jurists who have encouraged the adoption of the Restatement (Second) Conflict of Laws are discussed. 6_APOLINSKY & VAN DETTA ARTICLE.DOCX (DO NOT DELETE) 9/1/20 3:46 PM 152 CUMBERLAND LAW REVIEW [Vol. 50:2 unconstitutional doctrine buried in nineteenth century case law, which found little interest among the other judges on that court, but which captured the unanimous adoption by the Justices of the Georgia Su- preme Court on appeal. We will dissect the historical provenance of the Georgia Supreme Court’s opinion closely, demonstrating that it has serious and intolerable (while unintended) consequences.12 Those unintended consequences include perpetuating a view of the common law that arose from an antebellum jurisprudence that is inextricably bound up with slavery jurisprudence, and that even absent that disturbing provenance, produces inequitable “administration of the law,” in vio- lation of the Equal Protection Clause of the Fourteenth Amendment as condemned by Erie Railroad Co. v. Tompkins,13 and creates a blanket application of Georgia law without regard to the actual content of sister-state laws that “is sufficiently arbitrary and unfair as to exceed con- stitutional limits” established by the Article IV Full Faith and Credit Clause and Fourteenth Amendment Due Process Clause.14 Section IV will also reveal that in recent years, Georgia has fairly rarely selected the law of another state in a tort case and has resorted not only to escape devices (especially the public policy device) but also to the most recent resurrection of a totally discredited, antebellum concept of “law.” Fur- ther, Section IV notes that in so doing, the appellate courts in the Med- ical Center case shielded an equally outdated view that victims of neg- ligently inflicted, severe emotional distress are virtually never entitled 12 During the pendency of the authors’ work on this article, another teacher in the area of Conflict of Laws published a sustained attack on the Medical Center case, an assault nota- ble for its candor, its detail, and its considerable insight.

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