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The American Law Institute (ALI) has recently embarked on the project of elaborating a new Restatement of Conflict of Laws. Its first two Restatements on this subject have been enormously influential. The Ali began its work on the First Restatement in 1923, naming Joseph Beale of the Harvard Law School as its Reporter. Adopted in 1934, the First Restatement reflected the highly territorialist approach to the conflict of laws that had long prevailed in this country. Even before the First Restatement’s adoption, the First Restatement’s territorialist approach, and the “vested rights” theory on which it was based, was subjected to intense scholarly criticism. Nevertheless, the First Restatement’s approach continued to prevail in the United States until the New York Court of Appeals initiated a “choice-of-law revolution” in the early 1960’s with its decision in Babcock v. Jackson. Although most states have departed from the First Restatement’s approach, the First Restatement retains its adherents. Ten states continue to follow the First Restatement for tort cases and twelve states for contract cases.
More than forty years after the Second Restatement of Conflict of Laws, the American Law Institute (ALI) has begun work on a Third. Forty years is a long time, and the magnitude of the gap since the Second Restatement is itself a reason to think a Third is appropriate. But there are other reasons that it is time for a Third. In this essay, we want to explain why we think American choice of law has progressed to the point that a new Restatement is appropriate, and also, and relatedly, what we hope the Third Restatement can achieve.
These are our views, not those of the Ali, the Advisers to the Third Restatement, or even the other Reporters. It is simply our understanding of the significance of where we are in American conflicts scholarship and practice and where we might hope to go.
I’m a recent convert to the Restatement (Second) of Conflicts. In my thirty years of teaching the course, it’s been all too easy to parrot the conventional wisdom—that the Second Restatement is conceptually muddled, self-contradictory, and bordering on vacuous. I am now convinced, however, that there are both intellectual consistency and practical wisdom in its approach. (What better time to make this discovery than just as the American Law Institute decides to replace it?) I summarize below my reasons for believing that substantial parts of the Second Restatement’s basic structure should be left as is.
International law, as it appears in the pages of the American Journal of International Law, is largely public international law. Conflict of laws is usually considered to be either outside international law or part of private international law. This symposium in AJIL Unbound, with its focus on the Restatement of the Law (Third) Conflict of Laws, is therefore noteworthy. It also is welcome, because there is much to gain from thinking about conflict of laws and international law together.
Some sixteen years ago, on the occasion one of many symposia on the possibility of a new Restatement on Conflict of Laws to replace the much-derided Second Restatement, Mathias Reimann suggested that a new Restatement should focus on the requirements of what he called “the international age.” Conflict of laws is increasingly international, he pointed out. This remains true today—just recall that three of the four recent U.S. Supreme Court decisions on personal jurisdiction concerned international conflicts. A new Restatement must take that into account. Reimann formulated three very sensible wishes for drafters of a new Restatement: they should consider every rule and principle they formulate with international disputes in mind; they should work comparatively; and they should include foreign advisers.