Abstract
A deep contradiction lies at the heart of the Draft Restatement (Third) of Conflict of Laws. The Draft Restatement embraces a novel theoretical framework – the ‘two-step’ theory – that attempts to integrate the basic tenets of so-called ‘modern’ choice of law theory into a coherent intellectual whole. The virtue of the ‘two-step’ theory is that it domesticates conflict of laws, setting aside unfamiliar terms like the state’s ‘interests’ and instead turning to the ‘ordinary processes of statutory construction’. Choice-of-law questions, two-step theorists say, should be resolved the same way one would answer any other statutory issue: through the particularized interpretation of the statutes in question. But there’s the rub. Restatement provisions are not arrived at through interpretation of the statutes – they cannot be.
Lea Brilmayer and Daniel B Listwa, ‘Continuity and Change in the Draft Restatement (Third) of Conflict of Laws: One Step Forward and Two Steps Back?’, Yale Law Journal Forum 22 October 2018.
And see:
Kermit Roosevelt III and Bethan R Jones, ‘The Draft Restatement (Third) of Conflict of Laws: A Response to Brilmayer and Listwa’, Yale Law Journal Forum 22 October 2018.
First posted 2018-10-25 06:09:34
Leave a Reply