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.

The drafters have attentively surveyed conflict-of-law cases and have synthesized a body of black-letter rules reflecting the ways that courts have resolved disputes in the past. The resulting Draft Restatement, like prior restatements, is a synthetic representation of the laws of all fifty states, not an interpretation of the law of one particular state. Restatements simply summarize the general drift of a body of law, with due attention to progressive trends. How, then, can this restatement incorporate a methodology that professes to express the results of statutory construction? The answer is that it cannot. Continuity with past restatements, in the form of synthesized black-letter rules, cannot be joined to change—that is, the advancement of this latest choice-of-law theory—as the proposed Draft Restatement would have it.

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This essay is part of a collection, “An Exchange on the Draft Restatement (Third) of Conflict of Laws,” originally published in The Yale Law Journal.

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Lea Brilmayer

Lea Brilmayer is the Howard M. Holtzmann Professor of International Law at Yale Law School. In addition to teaching Contracts to first-year students, she also teaches Conflict of Laws and International Courts and Tribunals, as well as seminars on the laws of war and on African current affairs. and an Adviser to the Restatement (Third) of Conflict of Laws. She is also an Adviser on Restatement Third, Conflict of Laws.

Daniel B. Listwa

Daniel B. Listwa is a member of the Yale Law School J.D. Class of 2019.

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