Conflict, Crisis and Confusion in Pennsylvania

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\u27s 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\u27s 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\u27s Conflict, Crisis and Confusion from New York into the important jurisdiction of Pennsylvania

Kimball: Insurance and Public Policy

A Review of Insurance and Public Policy. By Spencer L. Kimball

INTERSTATE RECOGNITION OF CUSTODY DECREES: LAW AND REASON V. THE RESTATEMENT

After days of bitter contest, a weary judge dissolves the marriage bond and, lacking Solomon\u27s sword, allots the child to his mother. Thus the stage is set for the second act of the tragedy. Craving a new life for herself and her child, the mother moves to another state, and the father, seeing his right of visitation thus put in jeopardy, pleads the mother\u27s removal in the original court which, loyal to the more faithful citizen, now awards custody to him. Should a judge of the mother\u27s new home state heed this change? And again, what should be done if the father, disappointed by the original court, uses the first visit to acquire possession and himself removes the child to another state? What is any judge to do when faced with vivid descriptions of a child\u27s plight caused by the alleged misdeeds of an absent parent or the error of a distant court? Is he to give full faith and credit or comity to the foreign court\u27s decree and refuse to re-examine the merits of the first award, or should he follow his own discretion in caring for the welfare of the child now within his territory