How ‘International’ Should a Third Conflicts Restatement Be in Tort and Contract

23 Pages Posted: 23 May 2017 Last revised: 24 May 2017

Date Written: May 20, 2017

Abstract

From an international standpoint, American conflicts law presents two principal difficulties. One is a chaotic and unpredictable body of law of personal (judicial) jurisdiction. Personal jurisdiction in the U.S., as a result of the Supreme Court's continuing contraction of the "minimum contacts" test, also leaves plaintiffs injured in the U.S. by foreign defendants, taking advantage of the U.S. market, with no U.S. forum. The other problem is the unpredictability of U.S. choice of law. However, choice-of-law principles in the U.S. seem to be slowly coalescing into at least quasi-rules. This article argues that while the Third Restatement can do little about personal jurisdiction ― because the U.S. Supreme Court treats it as an issue of constitutional law ― it can give a significant boost to predictability in choice of law by restating the emerging quasi rules.

Keywords: Minimum Contacts, Choice of Law, Conflict of Laws, Private International Law, Restatement (Third) Conflict of Laws, Personal Jurisdiction, Judicial Jurisdiction

JEL Classification: K13, K20, K40, K41, K49

Suggested Citation

Borchers, Patrick Joseph, How ‘International’ Should a Third Conflicts Restatement Be in Tort and Contract (May 20, 2017). Duke Journal of Comparative & International Law, Vol. 27, No. 3, 2017, Available at SSRN: https://ssrn.com/abstract=2971478

Patrick Joseph Borchers (Contact Author)

Creighton University School of Law ( email )

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Omaha, NE 68178
United States
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402-280-3161 (Fax)

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

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