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What I Like Most About the Restatement (Second) of Conflicts, and Why it Should not be Thrown out With the Bathwater

Part of: Third Restatement of Conflict of Laws

Published online by Cambridge University Press:  20 January 2017

Lea Brilmayer
Lea Brilmayer*
Affiliation:
Yale Law School
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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.

Type
Symposium on the Third Restatement of Conflict of Laws
Information
AJIL Unbound , Volume 110 , 2016 , pp. 144 - 149
Copyright
Copyright © American Society of International Law 2016

References

1 Brainerd Currie was the most successful of these critics. See Brainerd Currie, Selected Essays On the Conflict of Laws ch. 14. The tradition of withering criticism has been carried on by top scholars in the field, starting with Albert Ehrenzweig. renzweig, Albert Eh, The Second Conflicts Restatement: A Last Appeal for Its Withdrawal, 113 U. Pa. L. Rev. 1230 (1964-1965)CrossRefGoogle Scholar; Traynor, Roger, Law and Social Change in a Democratic Society, 1956 U. Ill. L.F. 230 Google Scholar. See generally, Lea Brilmayer et al., Conflicts of Laws: Cases and Materials (7th ed. 2015).

2 Roosevelt, Kermit III & Jones, Bethan, What a Third Restatement of Conflicts of Laws Can Do, 110 AJIL Unbound 139, 143 (2016)CrossRefGoogle Scholar.

3 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. As noted in Brilmayer & Anglin, id. at 1156-57, it could be argued that interest analysis is not a “pure” single factor test.

4 Indeed, one of the foremost proponents of the theory—Herma Hill Kay—explicitly denies that Currie ever meant to ground his theory on legislative intent. Kay, Herma Hill, A Defense of Currie’s Governmental Interest Analysis, 215 Recueil Des Cours 9, 119-20 (1989)Google Scholar.

The reason for treating the modern theory as a single factor test is that it assumes that there is a single “correct” answer to the question whether an interest exists, and does not aggregate the contacts as a whole. See generally, Brilmayer & Anglin, supra note 3.

5 Brilmayer, Lea, Interest Analysis and the Myth of Legislative Intent, 78 Mich. L. Rev. 392, 399-401 (1980)CrossRefGoogle Scholar (arguing that despite Currie’s expressions of deference to legislative will, Currie’s proposed approach merely substituted one set of a priori principles for another”).

6 I do not want to get into the philosophically treacherous subject of whether there are any questions that can be framed in purely factual terms. Probably there are not; but it seems undeniable that some questions are more dependent on facts and others are more dependent on a priori theorizing. My point is that aggregate contacts models are much closer to the “dependent on facts” end of the spectrum and single factor models are much closer to the opposite end.

7 Auten v. Auten, 308 N.Y. 155 (1954); Haag v. Barnes, 9 N.Y.2d 554 (1961).

8 Currie, supra note 1, at 727-728.

9 The special characteristics of such “stand alone trigger” cases are discussed in Brilmayer & Anglin, supra note 3.

10 For a state-by-state tabulation of the contacts patterns of cases resulting in adoption of modern choice of law theories, see id. at 1176 (2009-2010).

11 California and New York were two of the earliest states to abandon the First Restatement for some form of governmental interest analysis. Both of these states subsequently abandoned unvarnished interest analysis for other approaches (in one case, for comparative impairment and in the other for an ad hoc approach that came to be called “the Neumeier rules”). The abandonment took place in cases where the contacts of the initially selected state were not supported by the remaining factors. The process of replacing one modern approach for another thus corroborates the aggregated contacts view of choice of law’s historical development. Id. (appendix with list of states).

12 Restatement (Second) of Conflict of Laws § 188 (AM. Law Inst.1971).

13 Restatement (Second) of Conflict of Laws § 6 (AM. Law Inst. 1971).

14 The principle that eligibility of contacts for consideration in choice of law issues depends on their being of substantive relevance is discussed in Brilmayer, Lea, Legitimate Interests in Multi-State Problems: As Between State and Federal Law, 79 Mich. L. Rev. 1315, 1331-32 (1981)CrossRefGoogle Scholar.

15 The choice of law revolution was sparked in part by a series of cases dealing with choice of law in guest statute cases. See, e.g., Babcock v. Jackson, 12 N.Y.2d 473 (1963); Tooker v. Lopez, 24 N.Y.2d 569 (1969).

In earlier times, some states adopted a higher burden of proof and/or stricter substantive requirements for recovery when a passenger in the car was a friend or relative of the driver. The reason was the fear of collusion between the driver and the passenger against the insurer.

16 Note the similarity of this result to the result in common domicile cases under interest analysis or under the Second Restatement See Restatement (Second) of Conflict of Laws (Am. Law Inst. 1971); Currie, Brainerd, Notes on Methods and Objectives in the Conflic of Laws, 1959 Duke L.J. 171, 178CrossRefGoogle Scholar.

17 See Lea Brilmayer, et al., supra note 1, at 176-77 (discussing Haag v. Barnes and raising issue about possible redundancy of two similar facts).