An Essay on Predictability in Choice-of-Law Doctrine and Implications for a Third Conflicts Restatement

12 Pages Posted: 11 Jun 2016  

Patrick Joseph Borchers

Creighton University School of Law

Date Written: June 8, 2016

Abstract

Both Restatements of the Conflict of Laws have been controversial. The First, completed in 1934, enshrined territorial rules, such as the law of the place of the injury (lex loci delicti) governing tort cases. The First Restatement was under immediate attack, principally the Legal Realists. As the American Conflicts Revolution, which grew out of academic writings (most importantly those of Brainerd Currie) began to take hold in U.S. courts in the 1960's work was underway on a Second Restatement, which was published in 1971. With choice of law doctrine in chaos, restating U.S. law was an impossible task, though the drafters attempted to bring the competing theories under the roof of "the most significant relationship" test. Although a majority of U.S. courts purport to follow the Second Restatement, their over-reliance on its very general sections has made results malleable and unpredictable. This article looks at various choice-of-law codifications and argues that there are lessons to be learned from them that would make choice of law more predictable. The unpredictability of results in interstate cases is exacting a heavy toll on litigants and courts and an important goal of the Third Restatement should be to restore some order to the chaos.

Keywords: conflict of laws, choice of law, Third Restatement of the Conflict of Laws, predictability, codification

JEL Classification: K13, K40, K41, K49

Suggested Citation

Borchers, Patrick Joseph, An Essay on Predictability in Choice-of-Law Doctrine and Implications for a Third Conflicts Restatement (June 8, 2016). Creighton Law Review, Vol. 49, No. 3, 2016. Available at SSRN: https://ssrn.com/abstract=2792305

Patrick Joseph Borchers (Contact Author)

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States
402-280-3009 (Phone)
402-280-3161 (Fax)

HOME PAGE: http://culaw2.creighton.edu

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