See generally Symeon C. Symeonides, The American Choice-of-Law Revolution: Past, Present and Future (2006).

See id. at 31.

See Willis L.M. Reese, Conflict of Laws and the Restatement Second, 28 Law & Contemp. Probs. 679, 681 (1963).

See, e.g., Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893, 900 (Ill. 2007).

See Restatement (Second) of Conflict of Laws § 6 (Am. Law. Inst. 1971) [hereinafter Restatement (Second)].

Reese, supra note 3, at 699.

As Reese and the American Law Institute were releasing tentative drafts of the Restatement (Second), other scholars were proposing alternative methodologies to replace the Restatement (First). See, e.g., Brainerd Currie, The Disinterested Third State, 28 Law & Contemp. Probs. 754, 755 (1963) (“[D]eep-freezing seems hardly the indicated treatment for a discipline just emerging from its Ice Age . . . . What American conflict-of-laws theory needs most at this stage is a real joinder of issues by the proponents of the new methodologies.”).

See Symeonides, supra note 1, at 88 (“[T]he Second Restatement is by far the most popular among the modern methodologies.”).

See Lea Brilmayer & Daniel B. Listwa, Change and Continuity in the Draft Restatement (Third) of Conflict of Laws: One Step Forward and Two Steps Back?, 128 Yale L.J.F. 266, 275 n.32 (2018).

Reese, supra note 3, at 699; Willis L.M. Reese, The Second Restatement of Conflict of Laws Revisited, 34 Mercer L. Rev. 501, 519 (1983) [hereinafter Reese, Second Restatement Revisited] (describing the Restatement (Second) as a “transitional work”).

See Reese, supra note 3, at 699 (“Presumably more definite and precise rules can be stated after more experience has accumulated. That will be the task of future Restatements.”).

Reese’s point that the Restatement (Second) was intended as a “transitional work” has been cited relatively rarely—a Westlaw search for “‘“second restatement’” /p transitional” produces twelve secondary sources hits, of which only eight are relevant. Most of those come from discussions of whether a Restatement (Third) is a good idea: articles that criticize the Restatement (Second) tend to evaluate it as if it was supposed to last forever.

See, e.g., Thomas P. Gallanis, The Use and Abuse of Governing-Law Clauses in Trusts: What Should the New Restatement Say?, 103 Iowa L. Rev. 1711, 1715-16 (2016).

According to its architect, Joseph Beale, a state’s law, “[b]y its very nature . . . must apply to everything and must exclusively apply to everything within the boundary of its jurisdiction.” 1 Joseph H. Beale, A Treatise on the Conflict of Laws § 4.12, at 46 (1935).

See Kermit Roosevelt III, Resolving Renvoi: The Bewitchment of Our Intelligence by Means of Language, 80 Notre Dame L. Rev. 1821, 1849 (2005) (“One of the greatest defects of the territorial approach is that the axiom of territorial scope may fit poorly with the purposes behind a state law.”).

1 Beale, supra note 14, at xiii.

See, e.g., Ralph U. Whitten, Curing the Deficiencies of the Conflicts Revolution: A Proposal for National Legislation on Choice of Law, Jurisdiction, and Judgments, 37 Willamette L. Rev. 259, 268 & n.27 (2001) (discussing escape devices); Lea Brilmayer & Raechel Anglin, Choice of Law Theory and the Metaphysics of the Stand-Alone Trigger, 95 Iowa L. Rev. 1125, 1133 (2010) (discussing the “subterfuge and manipulation” by judges of the Restatement (First) to avoid arbitrary results).

See Willis L.M. Reese, Choice of Law: Rules or Approach, 57 Cornell L. Rev. 315, 315 (1972) (discussing Section 6).

Uniformity relates in part to simplicity—a complicated or difficult decision-making process may produce disuniformity because judges cannot apply it consistently—but it also depends in part on the content of the process: selecting forum law, for instance, produces disuniformity. See generally Kermit Roosevelt III, Certainty vs. Flexibility in the Conflict of Laws (Aug. 22, 2018) (unpublished manuscript) (on file with author) (discussing relationship between right answer and systemic factors).

See Reese, Second Restatement Revisited, supra note 10, at 507-08 (describing the Restatement (Second)’s Section 6 approach as “eclectic . . . in nature” and derived from “a variety of different theories and values”). Reese admitted that these different values “likely point to different directions in all but the simplest case,” see id. at 509, but hoped that experience would allow courts to determine appropriate solutions for particular kinds of cases. See id. at 513 (stating that “courts should seek to develop actual rules of choice of law”).

See Reese, supra note 3, at 680, 699 (stating that “[c]hoice of law, even now, is not ripe for restatement” and so “the more general and more flexible formulation of ‘state of most significant relationship’ has been resorted to”). Brilmayer and Listwa describe Brainerd Currie as “criticiz[ing] the Restatement (Second’s) reliance on rules.” Brilmayer & Listwa, supra note 9, at 274 n.28. To the extent that this suggests that Currie either viewed the finished Restatement (Second) as rule-based or criticized it, it is misleading. Currie did argue (in 1959) against choice-of-law rules, and he did (in 1963, in words quite similar to Reese’s) argue that choice of law was not ripe for restatement. But we do not think that this supports an inference that the Restatement (Second) as published was in fact rule-based or that Currie would have opposed it. Section 6 did not enter the Restatement (Second) drafts until 1967, and the ALI did not approve the final draft until 1969. See Louise Weinberg, A Structural Revision of the Conflicts Restatement, 75 Ind. L.J. 475, 486 (2000) (“Section 6 as we know it appears out of the blue in the penultimate 1967 draft.”). There is no way of knowing what Currie would have thought of its multifactor flexibility; by the time of the 1967 draft he had been dead for two years. See Herma Hill Kay, Remembering Brainerd Currie, 2015 U. Ill. L. Rev. 1961, 1967.

Reese, supra note 3, at 681. Twenty-six years later, Reese apparently adhered to this view. See Reese, supra note 18, at 9 (“At the present time, rules cannot be devised to govern large areas of choice-of-law. This is particularly true for torts and contracts in situations where the parties have not chosen a governing law.”).

Capturing the Voice of the American Law Institute: A Handbook for ALI Reporters and Those Who Review Their Work, Am. L. Inst. 6 (2015), https://www.ali.org/media/filer_public/08/f2‌/08f2f7c7‌-29c7-4de1-8c02-d66f5b05a6bb/ali-style-manual.pdf [https://perma.cc/EKX9-EHWX]. The ALI describes the purpose of a restatement as to provide “clear formulations of common law and its statutory elements or variations and reflect the law as it presently stands or might appropriately be stated by a court.” Id. at 4. Brilmayer and Listwa suggest the Draft Restatement (Third) is relatively silent on the reasons for adopting a rules-based approach. Setting aside the inherent purpose of a restatement as explained by the ALI, the Draft Restatement’s commentary clearly explains that the rules of the Restatement are intended to “provide sensible, rather than arbitrary, answers to choice-of-law questions” while also furthering the resolution of choice-of-law decisions “in an easy, predictable, and uniform fashion.” Restatement (Third) of Conflict of Laws § 5.01 cmt. d (Am. Law Inst., Council Draft No. 2, 2017) [hereinafter Draft Restatement, Council Draft No. 2]. That is, they are intended to promote both the “right answer” and the “systemic” values found in Section 6 of the Restatement (Second).

Reese, Second Restatement Revisited, supra note 10.

Reese, supra note 3.

Reese, Second Restatement Revisited, supra note 10, at 519 (describing the Restatement (Second) as “a transitional work that has roots in the past and yet strives to ease the way to an uncertain future”); see also Reese, supra note 3, at 699 (“Presumably more definite and precise rules can be stated after more experience has accumulated. That will be the task of future Restatements.”).

See Restatement (Third) of Conflict of Laws ch. 6, intro, note 2 (Am. Law Inst., Preliminary Draft No. 3, 2017) [hereinafter Draft Restatement, Preliminary Draft No. 3] (describing “[t]he present approach”).

See, e.g., Symeon C. Symeonides, The Choice-of-Law Revolution Fifty Years After Currie: An End and a Beginning, 2015 U. Ill. L. Rev. 1847, 1904 (observing that “the case law has gradually converged into uniform and, indeed, sensible results in several patterns of tort conflicts”).

If the error is sufficiently gross, the Draft Restatement, like most systems, has an escape provision designed to allow departure from its rules when following those rules would produce a manifestly inappropriate result. The Draft Restatement “authorizes such departure when two requirements are satisfied. First, the circumstances of a case must be exceptional. They must present factors not considered in the drafting of the otherwise-applicable Restatement rule. Second, those factors must make application of another state’s law manifestly more appropriate.” See Draft Restatement, Council Draft No. 2, supra note 23, § 5.03 cmt. a. Brilmayer and Listwa’s analysis of this provision is discussed infra Part III.

Reese, supra note 18, at 322.

In a footnote, Brilmayer and Listwa note that the Draft Restatement describes itself in this way and comment that, “[i]f this account is accurate, the Restatement (Third) is not importantly inconsistent with the Restatement (Second) because the former is the implementation of the basic frame of reference of the latter.” Brilmayer & Listwa, supra note 9, at 267 n.3. We are not sure to what extent Brilmayer and Listwa disagree with this account of the development of the Restatements and their relation to each other, but it seems to us relatively straightforward and amply supported by the statements of their Reporters.

Id. at 273-74 n.25.

See, e.g., William M. Richman & William L. Reynolds, Prologomenon to an Empirical Restatement of Conflicts, 75 Ind. L.J. 417, 420 (2000) (describing Section 6 as the “intellectual heart of the Second Restatement”); see also Symeonides, supra note 1, at 31 (describing Section 6 as the “cornerstone” of the Restatement (Second)); Lea Brilmayer, Hard Cases, Single Factor Theories, and a Second Look at the Restatement 2d of Conflicts, 2015 U. Ill. L. Rev. 1969, 1990 (same).

See Richman & Reynolds, supra note 33, at 424 (“Thus, whether it uses the specific sections or the general grouping-of-contacts sections, eventually the court will need to apply the section 6(2) factors.”).

See Reese, supra note 3, 694 (noting that the Restatement (Second) provides “fairly definite choice-of-law rules . . . with respect to status, corporations, and property”).

See Brilmayer & Listwa, supra note 9, at 273 n.25.

Reese, supra note 18, at 324-25.

See Restatement (Second), supra note 5, at vii (“The essence of that change [from the Restatement (First)] has been the jettisoning of a multiplicity of rigid rules in favor of standards of greater flexibility . . . .”); id. at vii-viii (“Restatement Second supplants [the Restatement (First)’s] rules by the broad principle that rights and liabilities with respect to a particular issue are determined by the local law of the State which, as to that issue, has ‘the most significant relationship’ . . . .”); id. at viii (describing black-letter statements about which state’s law will usually govern as “empirical appraisals rather than purported rules”).

See, e.g., Willis L.M. Reese, A Suggested Approach to Choice-of-Law, 14 Vt. L. Rev. 1, 15 (1989) (describing “areas where rules do not currently exist, primarily torts and contracts where parties have not addressed choice-of-law”).

Reese, supra note 3, at 697, 699.

See, e.g., Symeonides, supra note 1, at 91 (stating that “of the Restatement’s 423 sections, only a handful contain anything resembling a black-letter, unqualified rule. The remaining sections allow the judge wide latitude in choosing the applicable law . . . .” (footnote omitted)); Brilmayer, supra note 33, at 1989 (“What is uncontested is that [the Restatement (Second)] preserves for the judge a much greater degree of discretion than other theories—modern or traditional—ever did.”).

Brilmayer & Listwa, supra note 9, at 271.

See Roosevelt, supra note 18.

See Draft Restatement Council Draft No. 2, supra note 23, § 5.01 & cmt. e.

Brilmayer & Listwa, supra note 9, at 276.

See Draft Restatement Council Draft No. 2, supra note 23, ch. 5, intro. note.

Beale believed that the law protected what he termed “primary rights,” the violation of which gave rise to a “secondary right” to redress. See 1 Beale, supra note 14, § 8A.25, at 83. The right to redress vested with the violation of the primary right and thereafter could be considered akin to personal property. The law of the jurisdiction in which the primary right vested was the only law, by its nature, that could apply. See id. § 4.12, at 46.

See Larry Kramer, Return of the Renvoi, 66 N.Y.U. L. Rev. 979, 997 n.58 (1991).

See, e.g., Brainerd Currie, Married Women’s Contracts: A Study in Conflict-of-Laws Method, in Selected Essays on the Conflict of Laws 107-20 (1963); Brainerd Currie, The Constitution and the Choice of Law: Government Interests and the Judicial Function, 26 U. Chi. L. Rev. 9, 9-10 (1958); see also Kermit Roosevelt III, The Myth of Choice of Law: Rethinking Conflicts, 97 Mich. L. Rev. 2448, 2467-70 (1999) (discussing conceptual structure of interest analysis).

See Restatement (Second), supra note 5, § 6 cmt. f (“In general, it is fitting that the state whose interests are most deeply affected should have its local law applied.”); id. § 8 cmt. k (“The state with the dominant interest should usually have its local law applied.”). It is possible that systemic factors could select the law of a state with no interest, but that seems unlikely and we are not aware of cases doing this. Accordingly it seems relatively fair to say that the Restatement (Second) also deems a state’s law relevant if application of that law would further the policies behind it.

See, e.g., Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914, 922 (Cal. 2006) (resolving conflicts via the principle of comparative impairment).

See, e.g., Hammersmith v. TIG Ins. Co., 480 F.3d 220, 230-231 (3d Cir. 2007) (demonstrating Pennsylvania’s approach to resolving conflicts in favor of the state with the most significant relationship to the issue).

See, e.g., Neumeier v. Kuehner, 286 N.E.2d 454 (N.Y. 1972) (setting out rules that use interest analysis with territorial tiebreakers); Edwards v. Erie Coach Lines Co., 952 N.E.2d 1033, 1036-37 (N.Y. 2011) (applying Neumeier’s rules).

David F. Cavers, A Critique of the Choice-of-Law Problem, 47 Harv. L. Rev. 173, 178 (1933).

See Larry Kramer, Rethinking Choice of Law, 90 Colum. L. Rev. 277, 299-301 (1990).

Making clear that choice of law is intelligible according to ordinary legal concepts and principles is one of the aims of the Draft Restatement. What Brilmayer and Listwa call “new terminology”—the “scope” of a law, see Brilmayer & Listwa, supra note 9, at 271-72—is actually a very basic legal concept: laws attach legal consequences to some events and not others. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 267 (1994) (discussing “limited scope” of constitutional restrictions and the “intended scope” of statutes). It is also already used in the choice-of-law context in the way the Draft Restatement uses it. See, e.g., Budget Rent-A-Car System, Inc. v. Chappell, 407 F.3d 166, 172 (3d Cir. 2005) (discussing whether an accident in Pennsylvania involving a car rented in Michigan but driven through New York “falls within the scope of [a New York law] as that statute has been construed by New York’s courts”); Phillips v. General Motors Corp., 995 P.2d 1002, 1011 (Mont. 2000) (discussing whether the “scope of North Carolina products liability law” includes injuries outside North Carolina); see also Reese, supra note 18, at 318 (“[T]he problems posed by choice of law are similar to those found in other legal areas. Policies underlie and are responsible for all rules of law . . . . The task of defining the policy’s scope of application or of providing proper accommodation for conflicting policies bears close analogy to the choice of law problem . . . .”).

It is a basic tenet of federalism that, within some limit, each state has authority to determine the scope and content of its own law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); see also Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941) (holding that states are “free to determine whether a given matter is to be governed by the law of the forum or some other law”). The Full Faith and Credit Clause also directs that each state is authoritative as to the meaning of its own law. See Sun Oil Co. v. Wortman, 486 U.S. 717, 731 (1988) (holding that it would violate the Full Faith and Credit Clause to misconstrue another state’s law “that is clearly established and has been brought to the court’s attention”). No one has pointed us to a case in which a state court disregarded an explicit limit on the scope of a sister-state statute.

See Reporters’ Memorandum in Restatement (Third) of Conflict of Laws xiv-xxiv (Am. Law Inst., Preliminary Draft No. 2, 2017); Reporters’ Memorandum in Draft Restatement Council Draft No. 2, supra note 23, at xvii-xxiii (discussing whether states have authority to set the scope of their law).

See, e.g., Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216, 220-221 (3d Cir. 2005) (following New York decisions on the scope of New York law); Cromeens, Holloman, Sibert, Inc. v. AB Volvo, 349 F.3d 376, 385 (7th Cir. 2003) (surveying cases adhering to statutory restrictions on scope).

Does the reference to pedestrians include rollerbladers? Is an employer with fewer than fifteen employees subject to Title VII? Those are questions about the scope of the statute. It is worth noting that the Supreme Court has said that questions about the extraterritorial scope of federal law are questions about the content and meaning of the law in exactly the way we suggest here. See, e.g., Morrison v. Nat’l Austl. Bank, 561 U.S. 247, 254 (2010) (noting that “to ask what conduct [a law] reaches is to ask what conduct [it] prohibits, which is a merits question”); id. at 255 (describing determination of extraterritorial scope as a matter of “construction” of “a statute’s meaning”).

There is nothing novel about connecting choice of law and statutory scope. In the classic case of Alabama Great Southern Railroad Co. v. Carroll, 11 So. 803, 807 (Ala. 1892), the Alabama Supreme Court explained its territorial approach to choice of law in exactly those terms, stating that it meant that a statute had to be interpreted “as if its operation had been expressly limited to this state.”

See Kramer, supra note 55, at 290 (explaining that while “multistate contacts raises some special problems that make interpretation more difficult . . . it does not require major modifications in the analysis” and “does not change the essential nature of the interpretive problem”); see also Symeonides, supra note 28, at 1858 (“To the extent [Currie’s critics] deny the domestic method’s ability to ascertain state policies, at least those of the forum state, these criticisms are unjustified . . . . Ascertaining the telos or purpose of a law is more difficult in conflicts cases than in ordinary domestic cases, but it is both a surmountable and a worthy task.”).

See, e.g., Kramer, supra note 55, at 300-01 (noting that the objection “really amounts to a claim that courts are unable to something that they do all the time”). Technically, in fact, it is not true that statutes say nothing about their scope. The interpretive question usually comes down to deciding the meaning of a word—for instance, does “injury” mean “injury received in this state” or “injury received anywhere”? This is not different in kind from deciding whether “pedestrian” includes rollerbladers.

Brilmayer & Listwa, supra note 9, at 276. Brilmayer and Listwa also suggest that the “core” of the two-step theory “is that choice-of-law questions can be resolved through attention to a given law’s scope.” Id. This is not true—determination of scope resolves very few questions, as we explain later in this section. See infra text accompanying notes 67-77. Most often, resolution requires a decision about which of two overlapping laws will be given priority. We are not sure how seriously their misunderstanding of two-step theory affects their analysis, but their persistent and erroneous suggestion that choice-of-law decisions are primarily a matter of determining scope distorts the model. See, e.g., Brilmayer & Listwa, supra note 9, at 277-78 (stating that “to convince a judge who embraces the ‘two-step’ theory that it is the law of State A and not State B that should apply” one needs to “show[] how—as a matter of statutory interpretation—the present case falls outside the scope of B’s law but within A’s”).

Take for example the “Erie guess,” wherein a federal court sitting in diversity must attempt to predict what a state’s highest court would decide if it were to address the issue itself. In the international context, the Supreme Court has also recently reaffirmed that federal courts should interpret another nation’s law using the same methods as in the domestic context. See Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865, 1873 (2018) (“The ‘obvious’ purpose of the changes Rule 44.1 ordered was ‘to make the process of determining alien law identical with the method of ascertaining domestic law to the extent that it is possible to do so.’” (quoting 9A Charles Alan Wright et al., Federal Practice and Procedure § 2444, at 338-42 (3d ed. 2008))).

Brilmayer and Listwa object that the drafters of a restatement “offer neither the authority of a state court to declare the scope of its state statute as a matter of law nor the sort of particularized analysis that grounds a persuasive argument from statutory interpretation.” Brilmayer & Listwa, supra note 9, at 276. They announce that the Draft Restatement “cannot be anything more than persuasive authority as to the meaning and scope of a particular statute.” Id. at 279. They say the draft “is not statutory construction [and] does not seriously attempt to be.” Id at 280. This appears to us to be an objection to restatements generally. The Draft Restatement, like restatements generally, does not attempt to declare or interpret the law of single state. It attempts to restate the interpretations of courts in most states, producing a set of rules that states can adopt if they are so inclined. If it is impermissible for the Draft Restatement to do that with respect to the scope of certain kinds of state laws, it is hard to see how any restatement could ever say anything about the content of any state law. No restatement is more than persuasive authority unless a state adopts it. No restatement is an interpretation of the law of any individual state: it is a survey of those states’ interpretations. Brilmayer and Listwa’s position here may be driven by their apparent belief that the specific rules of the Draft Restatement “owe their content to the ‘two-step’ method,” id. at 275, as if the drafters derived them by some process of abstract reasoning, like Joseph Beale deducing from territorialist premises. That is wrong. The two-step method is presented as a restatement of the methodology of modern choice of law: a description that captures what courts are doing. The specific rules are presented as a restatement of the outcomes of reported cases using that methodology: again, a description of what courts are doing. The content of the rules is derived from those cases.

It is possible that our disagreement with Brilmayer and Listwa on this point stems from different understandings of the nature and purpose of a restatement. We believe that it is appropriate for a restatement to survey judicial decisions to see if state courts (engaged in what Brilmayer and Listwa consider authentic interpretation) have interpreted similar statutes consistently. If, for example, nine out of ten jurisdictions interpret their guest statute a certain way, we believe it is appropriate for the restatement to restate that interpretation as a rule. The nine states whose interpretation is consistent with that rule are not being asked to do anything other than what they are already doing. The tenth might choose to adopt the restatement’s rule, or it might not. If it does, it will start interpreting its statute differently. But that is within its power, at least in the situation where the statute is silent as to scope. (When a statute specifies its scope, the Draft Restatement tells courts to honor that specification.) When a state court of last resort adopts a restatement in whole or part, it is changing the content of its own law, something it has the power to do.

See generally John Hart Ely, Choice of Law and the State’s Interest in Protecting Its Own, 23 Wm. & Mary L. Rev. 173 (1981) (discussing constitutional limits on discrimination against nonresidents).

As noted above, Brilmayer and Listwa repeatedly ignore this point. See supra note 64.

Willis L.M. Reese, Chief Judge Fuld and Choice of Law, 71 Colum. L. Rev. 548, 563 (1971).

For the proposition that states do not intend to give out-of-staters claims against locals for out-of-state torts, see, for example, Neumeier v. Kuehner, 286 N.E.2d 454, 458-59 (N.Y. 1972). For the proposition that states do extend the benefits of their tort law to visiting out-of-staters, see, for example, Edwards v. Erie Coach Lines Co., 952 N.E.2d 1033, 1044 (N.Y. 2011), which determined the rights of Ontario and Pennsylvania parties under New York law for a New York accident. Punitive damages, on which Brilmayer and Listwa focus, are complicated because the purpose of a punitive damages law is to punish, making the domiciliary connecting factor significant when the law grants rights to a nondomiciliary against a domiciliary. Because of this, the Draft Restatement has a special section on them. See Draft Restatement, Preliminary Draft No. 3, supra note 27, § 6.11.

See Brilmayer & Listwa, supra note 9, at 281.

The point of having experts survey the whole landscape of complex and sometimes inconsistent decisions and create simple rules that capture the best and most widely adopted practices is that judges then do not have to engage in that task themselves: they can follow the Restatement’s rules. Thus, we are confused by Brilmayer and Listwa’s suggestion that there is something untoward about not telling judges to repeat the work of the reporters and advisers. They announce that “the drafters forming the rules embodied in the Draft Restatement are engaged in a task fundamentally different from judges individually applying the ‘two-step’ theory to resolve choice-of-law disputes.” Brilmayer & Listwa, supra note 9, at 283. Of course they are! Judges using modern methodologies are applying some form of the two-step model. Reporters drafting a restatement are reporting what those judges have done.

See, e.g., Symeonides, supra note 1, at 123-137 (discussing distinction).

See Draft Restatement, Preliminary Draft No. 3, supra note27, § 6.06.

See Draft Restatement, Council Draft No. 2, supra note 23, §§ 1.03 cmts. a, b, 5.01 cmt. c (“The scope of foreign internal law as a question of foreign law.”).

See id. § 5.03, cmt. b and illus. 1.

See, e.g., Pfau v. Trent Aluminum Co., 263 A.2d 129, 137 (N.J. 1970) (stating that “[l]ex loci delicti was born in an effort to achieve simplicity and uniformity” and does not set the scope of state law).

See A Handbook for ALI Reporters and Those Who Review Their Work 5-6 (Am. Law Inst. 2015). Strikingly, Brilmayer and Listwa develop a theoretical argument for their skepticism about the Reporters’ “optimism” that choice of law can be captured in rules but make absolutely no attempt to determine whether the Draft Restatement’s rules do in fact track the practice of courts. Symeonides has investigated the degree to which the cases support the Draft Restatement’s rules. See Symeon C. Symeonides, The Third Conflicts Restatement’s First Draft on Tort Conflicts, 92 Tul. L. Rev. 1, 48-49 (2017) (praising the draft for “accurately capturing the decisional patterns emerging from the majority of the cases”).

Brilmayer & Listwa, supra note 9, at 288.

See Symeon C. Symeonides, Codifying Choice of Law Around the World 190-203 (2014) (discussing escape clauses).

See id. at 201-03 (discussing desirable features of escape clauses).

See supra text accompanying notes 59-60.

It is at this moment that Brilmayer and Listwa seem to contradict themselves: in Part II they argue that state courts should look to sister-state choice of law decisions to determine the scope of sister-state law; in Part III they argue that this is too difficult and time-consuming to do. See Brilmayer & Listwa, supra note 9, at 288.

The other reason, as noted above, is that we are trying to track the practice of courts, and courts do not generally take sister-state choice of law decisions to set the scope of sister-state law. See supra text accompanying note 78.

We do not see why this should be so difficult: statutes that specify their scope generally do so with an explicit “in this state” limitation. See, e.g., Diamond Mulitmedia Sys., Inc. v. Superior Court, 968 P.2d 539, 549-50 (Cal. 1999) (discussing legislative use of “in this state” restrictions). In any case, courts do perform this analysis. See, e.g., Gravquick A/S v. Trimble Navigation Int’l Ltd., 323 F.3d 1219, 1223 (9th Cir. 2003).

See, e.g., Budget Rent-A-Car Sys. v. Chappell, 407 F.3d 166, 172-74, 176 (3d Cir. 2005) (“In sum, the District Court’s choice-of-law ruling rested on its limiting interpretations of New York and Michigan substantive law. Before turning to the choice-of-law inquiry, we address the propriety of those legal interpretations.”). Brilmayer and Listwa suggest that the Draft Restatement contemplates “applying state law[s] to fact patterns that do not fall within their scope.” Brilmayer & Listwa, supra note 9, at 287 n.70. That is simply wrong. The illustration they cite (Illustration 3 to Section 5.02) involves a state following a choice-of-law statute. The Draft Restatement does say, as did the Restatement (Second), that state courts must follow choice-of-law statutes of their own state, provided those statutes are constitutional. See Draft Restatement, Council Draft No. 2, supra note 23, § 5.02; Restatement (Second), supra note 5, § 6(1). We cannot imagine that Brilmayer and Listwa mean to question this rule. It is possible, we suppose, that a state could direct a court to use forum law to decide an issue while at the same time writing that law to exclude the case from its scope. It could say “wrongful death claims between domiciliaries of this state shall be governed only by the law of this state, any other law to the contrary notwithstanding” and also “spouses shall be immune from interspousal suit for all claims arising in this state.” Now if an interspousal wrongful death claim arises outside the state, the first statute directs the state to apply its own law (and not that of any other state), while the second excludes the suit from its rule of interspousal immunity. The result there, however, is simply that the immunity is not available. One could call this “applying” the immunity statute, but it is “applying” it only in the sense that one could “apply” Title VII to an employer with only three employees: a court “applies” the law in such cases by recognizing that it does not attach legal consequences because the case is outside its scope. The difficulty in making clear what the word “apply” means is one reason we find the ordinary legal concept of scope appealing in choice-of-law analysis. Vocabulary that makes significant differences apparent is better than vocabulary that obscures them.

We stress this point because we think that a failure to grasp it is at the root of the main Brilmayer and Listwa objection. The two-step model is presented as a restatement of the methodology of modern choice of law. The specific rules are presented as a restatement of the outcomes of reported cases using that methodology. Their content is derived from those cases.

If states are already using these interpretations, which should often be the case since the ’Draft Restatement’s rules are derived from reported decisions, the Draft Restatement simply gives them an easier way to do what they are already doing. If not, they can change their practice by adopting the Restatement—a change that is not within the power of the ALI to direct but is within the power of the state to effect. The drafters do not possess “the authority of state judges to make the policy decisions that are near-inevitably involved in determining the scope of a particular statute.” Brilmayer & Listwa, supra note 9, at 276. But no restatement drafters ever possess that authority, and they do not purport to be making policy decisions: they are reporting the policy decisions that states have made.

These successes have, in fact, already been recognized in the academic literature. See Symeonides, supra note 79, at 48-49 (explaining that “the Draft makes good use of the lessons of the American conflicts experience” by “(1) accurately capturing the decisional patterns emerging from the majority of the cases . . . ; (2) expressing those patterns in a ‘new form’ that is clear, concise, and, at the same time, sufficiently flexible; and (3) providing logical and persuasive reasons for each of the proposed rules,” and further noting the “reporters deserve our collective thanks and congratulations for a job well done”); see also Patrick J. Borchers, How “International” Should a Third Conflicts Restatement Be in Tort and Contract?, 27 Duke J. Comp. & Int’l L. 461, 477 (2017) (calling the Draft Restatement “a vast improvement from the Second Restatement in terms of predictability” because it posits “reasonably concrete rules without the endless qualification of the Second Restatement” (footnote omitted)).