Below is the abstract for “Conflict of Law in the ALI’s First Century” available for download on SSRN.
This essay is part of a forthcoming book about the history of the American Law Institute (ALI), which will be published in 2023, one hundred years after the Institute’s founding. It discusses the ALI’s two Restatements of Conflict of Laws.
The first Restatement, adopted in 1934 and identified with its highly respected but dogmatic reporter, Professor Joseph H. Beale, consisted of doctrinally pure but simplistic and inflexible set of rules, which had the propensity to produce arbitrary results. Beginning with the 1960s, courts began evading and then rejecting those rules in a movement known as the choice-of-law revolution and characterized by a strong skepticism against all rules.
Drafted during the revolution’s early years and reflecting that skepticism, the Second Conflicts Restatement moved to the other extreme of replacing—rather than repairing—the old rules with open-ended and equivocal lists of choice-guiding factors. Although criticized at the time, this excessive flexibility proved attractive to most courts, enabling them to experiment with new ideas and, over time, to converge around uniform choices in many patterns of cases.
The Third Conflicts Restatement, currently in the drafting phase, intends to compress these choices into new “smart” rules, which will be more flexible than those of the first Restatement and less open-ended than those of the Second Restatement. If this effort succeeds, the ALI will have found the elusive golden mean between the two perpetually competing systemic values of certainty and flexibility.