Hard Cases, Single Factor Theories, and a Second Look at the Restatement 2D of Conflicts

The modern academic and judicial critics whose attacks brought down the First Restatement of Conflicts repeated more of the First Restatement’s mistakes than they might care to admit. This Article deals with a largely unexplored difficulty common to the First Restatement and modern interest-based theories: because both are ‘‘single factor’’ theories, in ‘‘hard cases,’’ they sometimes call for the application of one state’s law to disputes that are overwhelminglyconnected to a different state. This has resulted in dubious decisions, as judges have tried to avoid such irrational and arbitrary results. This Article begins by explaining the difficulties inherent in ‘‘single factor’’ theories. It then explains how the Restatement 2d of Conflicts avoids these problems relatively successfully, although at a cost of decreased certainty and predictability.

The full text of this Article is available to download as a PDF.