The Conflicts Restatement and the World
Duke University School of Law
October 5, 2016
AJIL Unbound, Vol. 110, p. 155 (2016)
Duke Law School Public Law & Legal Theory Series No. 2016-51
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.
Now that a Third Restatement is underway, we can see that the third of Reimann’s wishes, the one for foreign advisors, has been ignored completely by the American Law Institute (ALI). Not a single member of the Advisers group is situated outside the United States (though some have a foreign educational background). Within the (self-selected) members consultative group, only four scholars are based abroad. This is in sharp contrast to the Foreign Relations Restatement, which can rely on an international advisory panel with twenty-one members from all around the world. It is to be feared, therefore, that Reimann’s first two wishes also can be fulfilled only incompletely — even though the current draft displays in some sections ample comparative and international materials.
In what follows, I address some general themes in this regard, to supplement Reimann’s proposals. I address why the rest of the world matters for a Conflicts Restatement. I discuss challenges for the current draft’s method, in view of the subject’s internationalization. I mention some concrete areas in which an internationalist perspective could be instructive. And I make two concrete proposals for how to address internationalization in the Restatement.
Number of Pages in PDF File: 6
Date posted: October 8, 2016 ; Last revised: October 25, 2016