Conflict of Laws

Conflicts, and more particularly choice of law, is a field whose importance is only growing in our increasingly interconnected world. The transaction or event that has connections to only one jurisdiction is now a rarity. Allocating authority among different state and national sovereigns in a sensible and predictable way is more important than ever. Yet sadly, our legal system is increasingly poorly equipped to do so.

In the early part of the twentieth century, there was, at least in theory, general agreement as to how to analyze conflicts questions. Courts and scholars followed a territorialist approach, which sought to locate transactions or events within the geographical borders of a particular sovereign and then conferred regulatory authority on that sovereign alone. The First Restatement of Conflict of Laws codified this theory in a very complex set of rules.

By the time the First Restatement was completed, in 1934, territorialism was already under attack by academic critics. In subsequent decades, it was abandoned by significant numbers of courts, in what is generally called the American “choice-of-law revolution.” ALI began work on the Second Restatement in 1952, but, in part because of the continuing intellectual ferment, the Second Restatement was not formally adopted until almost twenty years later, in 1971. Even then, it was what its Reporter, Willis Reese, called “a transitional document.” It offered both a substantial number of specific rules, which were typically described as presumptions, and a general methodology, the “most significant relationship” test. The “most significant relationship” test relied on seven factors which attempted to incorporate insights from several of the different developing schools of choice of law.

The Second Restatement was a success in terms of its reception by judges. It did not bring uniformity to the field—there is still a striking degree of methodological diversity among the states—but it has become the most popular approach. However, the Second Restatement has been very unpopular with academics, and indeed it has some significant failings.

What a Third Restatement could do is to take the accumulated wisdom of decades of experience with the modern approaches and present it in an administrable and user-friendly form. If we could produce a set of administrable rules that embodied the wisdom of the modern approaches, along with a clear statement of what the rules were intended to achieve and how to use them, it would have substantial appeal.

A Third Restatement would also provide an opportunity to address issues to which the Second Restatement gave short shrift, or which simply did not exist when it was drafted: mass torts, for instance, or insurance for environmental damage, or internet transactions, products liability, punitive damages, and others. It would allow drafters to harmonize the ALI’s choice-of law position with other domestic codifications that have emerged since the Second Restatement: the Uniform Commercial Code, or the ALI’s works on complex and aggregate litigation, to name just two.

Perhaps most significant, it would provide an opportunity to pay greater attention to the international context than the Second Restatement did. Conflicts issues—whether choice of law, recognition of judgments, or domestic relations—now frequently involve not two U.S. states but a state and a foreign country. It would be valuable to reassess Second Restatement rules in light of the increased presence of international factors, and also to consider attempts to learn from or harmonize with foreign approaches. The European Union, for instance, has (ca. 2008) adopted choice-of-law codes for tort and contract (Rome I and II); a Third Restatement could benefit from that experience as well.

Table of Contents (tentative)

Chapter 1: Introduction

Topics include: Subject Matter of Conflict of Laws; State and Nation Defined; and Interstate and International Conflict of Laws

Chapter 2: Domicile

Topics include: Domicile of Natural and Juridical Persons; Definition of Habitual Residence; Domicile of Minors; and The Law Determining Domicile

Chapter 3: Judicial Jurisdiction

Topics include: Judicial Jurisdiction over Natural Persons; Judicial Jurisdiction over Juridical Persons; Jurisdiction in Internet Cases; and Forum Non Conveniens

Chapter 4: Recognition and Enforcement of Judgments

Topics include: Sister-State Judgments; Tribal Judgments; and Foreign Country Judgments

Chapter 5: Choice of Law

Topics include: Nature and Development of Choice of Law; Choice-of-Law Analysis; and Determination of Foreign Law

Chapter 6: Torts

Topics include: Loss-Allocating Rules; Conduct-Regulating Rules; Residual Rule; and Party Choice

Chapter 7: Property

Topics include: Characterization of Property; Interests in Real Property; Transfers of Interests in Real Property; and Limits on Real Property Use

Chapter 8: Contracts

Topics include: Enforceability of Choice-of-Law Clauses; Life-Insurance Contracts; Leases; and Transportation Contracts.

Chapter 9: Complex Litigation

Chapter 10: Trusts

Chapter 11: Administration of Estates

Chapter 12: Families 

Chapter 13: Agency and Partnerships

Chapter 14: Business Corporations

Chapter 15: State-Federal Issues in the United States

Topics include: Constitutional Limitations on Choice of Law; Extraterritorial Legislation; Preemption; State Law in Federal Courts; and Federal Law in State Courts

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