The American Law Institute recently announced that it will be pursuing four new “Restatements” of the law next year — the Restatements being an academic attempt to rationalize a particular area of common law doctrine. They’re partly descriptive, partly normative, restating their area of law in the same way a speaker might rephrase a confusing question from the audience.
In any event, given my other hat as a conflict-of-laws nerd, I was particularly interested to see that one of the new Restatements will be a Third Restatement of Conflicts. The First Restatement of Conflicts by Joseph Beale was famously formalist and territorial. The Second Restatement was the opposite, famously criticized by Doug Laycock for “trying to be all things to all people” and therefore producing “mush.” I’ll be very interested to see what direction the Third Restatement takes.
And while I don’t wish to pessimistic about the project at all — on the contrary! — I think this is an appropriate time to call to mind this comment from Perry Dane:
Publishing a restatement of choice of law is an ironic act. The project of all the restatements, of torts and contracts and the rest, is partly to spur uniformity in the law. But if the law ever truly became uniform, there would be no need for choice of law, or for a restatement thereof. The solution to the paradox is that a restatement of conflicts, even as it tries to build common ground on choice of law, must also respect the lack of common ground elsewhere. It must, to be true to its own task, assume that the other restatements will fail in their ambitions. Hence, a restatement of choice of law needs to distinguish, carefully and rigorously, between choice of law and municipal law. It can prescribe the former but not the latter.What I have called first-order choice of law-a legal system’s effort to work out its own substantive doctrine in the light of jurisdictional complexity-occupies a gray zone between municipal law and second-order choice of law. Nevertheless, to the extent that first-order choice of law proceeds from the substantive concerns of particular legal systems, a restatement of choice of law needs to treat such first-order questions with care and humility.
That’s from Whereof One Cannot Speak: Legal Diversity and the Limits of A Restatement of Conflict of Laws, published in 2000.