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What a Third Restatement of Conflict of Laws Can Do

Part of: Third Restatement of Conflict of Laws

Published online by Cambridge University Press:  20 January 2017

Kermit Roosevelt III  and
Bethan Jones
Kermit Roosevelt III
Affiliation:
University of Pennsylvania Law School
Bethan Jones
Affiliation:
Arnold & Porter
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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.

Type
Symposium on the Third Restatement of Conflict of Laws
Information
AJIL Unbound , Volume 110 , 2016 , pp. 139 - 143
Copyright
Copyright © American Society of International Law 2016

References

1 Joseph H. Beale, 1 A Treatise on the Conflict of Laws § 4.12, at 46 (1935).

2 Kramer, Larry, Vestiges of Beale: Extraterritorial Application of American Law, 1992 Sup. Ct. Rev. 179, 190 n. 36Google Scholar.

3 The point here is not that Beale chose the wrong contact, but rather than any approach that gives decisive importance to a single contact (what Lea Brilmayer has called a “single factor” or “stand-alone trigger” approach) will generate arbitrary results in some cases. See Brilmayer, Lea & Anglin, Raechel, Choice of Law Theory and the Metaphysics of the Stand-Alone Trigger, 99 Iowa L. Rev. 1125 (2009-2010)Google Scholar; Brilmayer, Lea, Hard Cases, Single Factor Theories, and a Second Look at the Restatement Second of Conflicts, 2015 U. Ill. L. Rev. 1969 Google Scholar; Brilmayer, Lea, What I Like Most about the Restatement (Second) of Conflicts and Why it Should Not be Thrown out with the Bathwater, 110 AJIL Unbound 144 (2016)CrossRefGoogle Scholar.

4 For a list and analysis of cases in which courts abandoned the First Restatement, suggesting that abandonment often occurred in cases in which the last act was the only contact, see Brilmayer & Anglin, supra note 3, at 1176-1178.

5 See Roosevelt, Kermit III, The Myth of Choice of Law: Rethinking Conflicts, 97 Mich. L. Rev. 2448, 2458-60 (1999)Google Scholar; Fassberg, Celia Wasserstein, Realism and Revolution in Conflict of Laws: In with a Bang and out with a Whimper, 163 U. Pa. L. Rev. 1919, 1919-21 (2015)Google Scholar; Roosevelt, Kermit III, Legal Realism and the Conflict of Laws, 163 U. Pa. L. Rev. Online 325 (2015)Google Scholar (responding to Fassberg).

6 See, e.g., Grant v. McAuliffe, 264 P.2d 944 (1953); Levy v. Daniels’ U-Drive Auto Renting Co., 143 A. 163 (1928); see generally, Kermit Roosevelt Iii, Conflict of Laws 15-29 (2d ed. 2015).

7 See, e.g., Currie, Brainerd, The Constitution and Choice of Law: Governmental Interest Analysis and the Judicial Function, 26 U. Chi. L. Rev. 9, 9-10 (1958)CrossRefGoogle Scholar (describing his “central reliance on the concept of governmental interest”); Leflar, Robert A., Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L. Rev. 267, 282 (1966)Google Scholar (listing five factors that explain choice of law decisions).

8 See Leflar, Robert A., Conflicts Law: More on Choice-Influencing Considerations, 54 Cal. L. Rev. 1584, 1585 (1966)CrossRefGoogle Scholar (identifying predictability, maintenance of interstate order, simplification of the judicial task, advancement of the forum’s interests, and application of the better rule of law).

9 See, e.g., Goulding v. Sands, 355 F.2d 230, 232 (3d Cir. 1966) (discussing modern approaches); Bernhard v. Harrah’s Club, 16 Cal. 3d 313 (1976) (discussing comparative impairment).

10 See Roosevelt, The Myth of Choice of Law: Rethinking Conflicts, supra note 5, at 2466. Judges may like the Second Restatement because it affords them the discretion to reach answers that seem correct. It would still be better, however, to deliver those answers in a simpler and easier fashion.

11 In the words of the Restatement, they are “empirical appraisals rather than purported rules.” Restatement of the Law (Second) Conflict of Laws VIII (Am. Law Inst. 1971).

12 See Kramer, Larry, Rethinking Choice of Law, 90 Colum. L. Rev. 277, 321 n. 149 (1990)CrossRefGoogle Scholar.

13 Reese, Willis L.M., Conflict of Laws and the Restatement, Second, 28 Law & Contemp. Probs. 679, 699 (1963)CrossRefGoogle Scholar

14 Fassberg, supra note 5, at 1932.

15 Neumeier v. Kuehner, 286 N.E.2d 454 (N.Y. 1972)

16 See Fassberg, supra note 5, at 1935 (stating that “American scholarship was no more influential on the theoretical level” and that its “enormous intellectual effort . . . was considered neither necessary nor helpful in the task of rationalizing and developing choice of law.”).

17 This is based on a Westlaw search for “second restatement” /s transitional, performed 9/14/2016, which shows four hits in the Secondary Sources library and none in Cases.

18 See, e.g., Roosevelt, supra note 6, at 43-45, Kramer, Larry, Return of the Renvoi, 66 N.Y.U. L. Rev. 1013–1021 (1991)Google Scholar.

19 An important distinction: lawyers and judges may not be familiar with how to determine the geographical or personal scope of a statute or other rule of law (though the U.S. Supreme Court does exactly this in determining the extraterritorial reach of U.S. law). But they understand the concept of determining scope in marginal cases in the purely domestic context—that is ordinary interpretation. In our view, determining geographic and personal scope in the multistate context is the same in principle. We are not suggesting that the Third Restatement should ask the courts to determine scope, only that it should tell them that determining scope is part of what the drafters have done in creating its choice of law rules.

It warrants emphasis that while we agree with Currie that determining scope is a matter of interpreting law, we do not necessarily agree with the interpretations he suggested. Lea Brilmayer, in her contribution to this symposium, suggests that we “retain . . . the least defensible aspects of governmental interest analysis.” Brilmayer, supra note 3, at 144. We are puzzled by this assertion. Brilmayer has long criticized Currie’s methods and conclusions in the determination of scope, and we find much of what she says persuasive. The Restatement draft does not follow Currie’s assumptions about state interests or his conclusions as to the scope of state laws, much less his views on how to resolve conflicts between them. What it clings to is the idea that there are some factual scenarios that are within the reach of a law and some that are not. When a statute refers to pedestrians, for example it clearly includes walkers, clearly excludes drivers, and perhaps requires more interpretation to decide the status of rollerbladers. This is less governmental interest analysis than a basic concept in all areas of American law.

Ralf Michaels, likewise, seems to have concerns that are driven more by specific features of Currie’s analysis than the idea that laws have a scope. It may well be, for instance, that foreign nations find alien the idea that private laws express governmental interests. See Michaels, Ralf, The Conflicts Restatement and the World, 110 AJIL Unbound 155, 158 (2016)CrossRefGoogle Scholar. We still believe it likely that they understand that some factual scenarios will give rise to liability under a law and others will not. And unless they believe that their laws violate the restrictions on prescriptive jurisdiction imposed by international law, they understand some of these scope limitations in terms of geography and persons.