ABSTRACT
This Article discusses the torts chapter of the Third Conflicts Restatement (which was approved by the ALI in May 2023) and provides a roadmap for its application by courts, litigants, and office lawyers.
This chapter steers a middle ground between the broad inflexible rules of the First Restatement of 1934 and the exceedingly equivocal directives of the Second Restatement of 1971. It accurately captures the decisional patterns emerging in the more than forty U.S. jurisdictions that have abandoned the old lex loci delicti rule and joined the choice-of-law revolution of the 1960s. It recasts them into new narrow and ‘smart’ rules that incorporate the revolution’s methodological advances but without reproducing its excesses, such as Brainerd Currie’s undue forum favoritism or the implicit subjectivism of Robert Leflar’s better-law approach.
The most noteworthy features of these rules include: (1) the distinction between conduct-regulating and loss-allocating tort rules; (2) the application of the law of the parties’ common domicile in loss-allocation conflicts; (3) a rule giving victims of cross-border torts the option of requesting the application of the law of the state of injury, if the occurrence of the injury there was objectively foreseeable; and (4) the general notion that the choice of the applicable law should depend not only on a state’s territorial contacts, but also on the content of its law.
Symeonides, Symeon, The Torts Chapter of the Third Conflicts Restatement: A Roadmap (October 17, 2023), 88 Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ) (2024).
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