A Structural Revision of the Conflicts Restatement
35 Pages Posted: 3 Jun 2013 Last revised: 1 Oct 2014
Date Written: January 1, 2000
Abstract
This paper broaches the question whether he current Restatement (Second) of the Conflict of Laws, now under wide adoption in both state and federal courts, needs rethinking. It identifies theoretical problems presented by the Second Restatement, and argues for simple but major but changes in the Restatement's overall workings. It proposes a change in the Second Restatement's master presumption looking to the law of the place of "most significant contact," and in its further presumptive territorial choices of law. It proposes changing the relationship between the whole vast work and its very brief but operative section, section 6. Section 6, of course, is the feature of the Second Restatement that contains the list of policy factors that the Second Restatement suggests must ultimately be taken into account in any choice of law. On the thinking that we need to take with us into the future something like section 6, it goes on to try to show how section 6 might be retooled to advantage. In the development of this suggestion, it discusses the evident struggle of Willis Reese, Reporter of the Second Restatement, to incorporate in section 6 the oddly controversial ideal of justice in the individual case. Reconstructed along the lines suggested here, a "Third Restatement" would reflect more nearly the acknowledged ideals of conflicts law, which are the general ideals of law in courts.
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