International Conflict of Laws and the New Conflicts Restatement

By Childress, Donald Earl,, III | Duke Journal of Comparative & International Law, Spring 2017 | Go to article overview

International Conflict of Laws and the New Conflicts Restatement


Childress, Donald Earl,, III, Duke Journal of Comparative & International Law


            TABLE OF CONTENTS  INTRODUCTION                                   361 I. PRESUMPTIONS, SCOPE, AND PRIORITY           364 II. BIG CONFLICTS AND INTERNATIONAL COMITY     372 CONCLUSION                                     379 

INTRODUCTION

In the United States, there is a constructive chaos (1) to the conflict-of-laws process because, for the most part, conflicts rules are judge made. (2) Compounding this common law approach to conflict-of-laws problems, "there is no single institution that currently possesses the power to (1) determine when uniformity in multistate and multinational transactions is desirable, and (2) mandate that uniformity, whether through a single conflict-of-laws system, uniform substantive rules for multistate and multinational transactions, or otherwise." (3) Given the lack of a central conflict-of-laws arbiter, there have been many attempts, especially academic ones, at bringing order to the chaos. (4) Chief among them are the Restatement projects offered by the American Law Institute.

A brief history of this dialogic process is as follows: conflict-of-laws rules are identified and (re)stated; conflicts rules beget judicial exceptions; judicial exceptions engender criticism; criticism produces reconceptualization; reconceptualization begets a new attempt to bring order to conflicts chaos through the identification and restatement of new standards and rules. (5) We now arrive at the Restatement (Third) of the Law of Conflict of Laws, where this process will now play out in this generation.

As Professor Kermit Roosevelt, the Reporter for the new Conflicts Restatement, explained in the University of Pennsylvania Law Review Online, the new Conflicts Restatement will take data compiled from the experience of U.S. courts with conflict-of-laws methods, especially the Second Conflicts Restatement, and "create a new set of rules that incorporates the relevant factors in a way that gives precise guidance [to courts] in particular cases." (6) According to Professor Roosevelt, a process that "began with the overthrow of arbitrary rules should end with better rules." (7)

As part of this process, the new Conflicts Restatement details that a U.S. court confronted with a conflict-of-laws problem should perform two steps. First, the court must determine the scope of the law or laws that may be applicable. (8) Second, it must then decide how to resolve conflicts uncovered by the first step. (9) The second step is a question of which law should take "priority" in the event of a conflict. (10) Presumably, the first step will alleviate the need for a choice between competing laws in most cases because the scope question will identify the law that should be applied by a court in a given case. As such, the appropriate law will be identified and the more weighty approach of choosing the applicable law--the priority question--will be necessary only in the most difficult cases. The new Conflicts Restatement thus adopts Professor Brainerd Currie's view that the conflict-of-laws process is akin to garden variety statutory construction and interpretation. (11)

The new Conflicts Restatement explains that interstate and international conflicts are "broadly similar," (12) and, presumably, the scope/priority analysis will apply to international conflicts cases just as it would to domestic conflicts cases. One wonders, however, whether general principles of statutory construction developed in the context of U.S. domestic law, where the distribution of legislative and adjudicatory power between the several states is paramount--a federalism concern--should be transplanted to cases with transnational elements, where the distribution of power between the United States and other nations is implicated--a foreign affairs concern. We are thus left to ask: Should the new Conflicts Restatement treat transnational cases differently?

Even if many, if not most, conflicts cases can be resolved by the question of a relevant law's scope, what happens when there is a priority question, especially in a transnational case? …

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