A New Conflicts Restatement: Why Not?
Journal of Private International Law, Vol. 5, 2009
46 Pages Posted: 6 Aug 2009
Date Written: August 5, 2009
The Second Conflicts Restatement, the drafting of which began only twenty years after the promulgation of its disastrous predecessor, is now forty years old. The thesis of this Article is that it is time to begin drafting a new Restatement, at least for the choice-of-law part of conflicts law. The Second Restatement has played a constructive role in liberating courts from the straight-jacket of its predecessor and facilitating the American choice-of-law revolution of the 1960s. Nevertheless, and despite its apparent popularity among judges, the Second Restatement is woefully inadequate to meet today’s needs. Its few black-letter rules are over-broad and anachronistic, and its much more numerous “non-rules” are much too malleable and thus uncertain. More importantly, the Restatement has nothing to say on a vast array of conflicts that were non-existent or infrequent in the 1960s but are all too common today, such as conflicts involving “mega torts,” products liability, punitive damages, environmental pollution, same-sex relations, cyberspace conflicts, and, especially, international conflicts. A new Restatement can remedy these deficiencies and fill the gaps, while also providing an opportunity to: (a) assess the accumulated interstate and international experience in resolving the above conflicts and extracting from it solutions that meet today’s needs; (b) extract, evaluate, and articulate the lessons of the revolution, both positive and negative; and (b) attain a new and proper equilibrium between the perpetually conflicting needs of certainty and flexibility by providing more specific guidance, especially for tort and contract conflicts.
Keywords: Conflict of laws, Choice of law, private international law, Restatement, codification, comparative law, judicial discretion, certainty and flexibility
JEL Classification: K10, K12, K13, K30, K33, K40
Suggested Citation: Suggested Citation