What the Restatement Actually Says: A Response to Brilmayer and Listwa

In a recent post, Lea Brilmayer and Dan Listwa argue that there is a contradiction in the draft Restatement (Third) of Conflict of Laws, for which I am the Reporter. They claim that the Restatement’s two-step model for choice of law is in fundamental conflict with its statement of blackletter rules, and they argue instead for what they call a “theory-less” Restatement, consisting of the blackletter rules without the two-step model. Brilmayer and Listwa have been commenters on and friends of the Restatement  (Third) from its earliest drafts. Their comments have been helpful and have led to improvements both large and small. Here, however, they raise a problem that does not exist and propose a solution that would make things worse.

The Restatement

To understand the critique, it will help to set out briefly the structure of the Restatement and the analysis it prescribes. The Restatement describes choice of law as a two-step process. First, courts decide whether a choice-of-law problem exists, by determining whether there is a material difference between relevant laws. Laws are relevant for an issue, the Restatement says, if they include the issue within their scope. If an accident causes a death in New York, for instance, the New York wrongful death statute would be relevant. Other laws might be too. A New Jersey charitable immunity that protects New Jersey charities regardless of where they act would be relevant if the defendant were a New Jersey charity. A Pennsylvania statute that gives claims to Pennsylvania residents regardless of where they are injured would be relevant if the plaintiff were a Pennsylvania resident. And so on.

If more than one law is relevant and the laws differ materially (meaning that an issue would be decided differently under different laws), then courts go on to a second step: they give priority to one of the competing laws. Much of the Restatementconsists of rules identifying the law to be given priority for different issues in various types of cases. These are what Brilmayer and Listwa call the blackletter rules. For the sake of clarity, I will call them priority rules.

That is the two-step model. Courts decide whether a choice-of-law problem exists, and if it does they resolve it. Brilmayer and Listwa describe the model as “entirely routine,” which is fair. They also describe it as “novel” and “theorizing,” which is baffling. The two-step model is not novel, and it is not a theory. It is simply a description of what courts do in every choice-of-law case: decide whether a choice-of-law problem exists, and, if it does, resolve it.

The Critique

Brilmayer and Listwa assert that there is a tension between the two-step model and the priority rules. They seem to believe that this arises because the Restatement tells courts how to interpret particular statutes in deciding whether a choice-of-law problem exists. They say that the Restatement “indicates that when ‘State X has a wrongful-death statute that by its terms applies to deaths “caused in this state,”’ that statutory language should be interpreted as a limitation on the geographic scope of the law.” And they object that “this is not the only possible interpretation of such a statute.”

It is true that statutes can be interpreted in different ways. Sometimes statutes with similar language are interpreted differently by courts of different states. But it is not true that the Restatement prescribes any particular interpretation of any particular statute. Section 5.01 of Tentative Draft 3, approved by the ALI membership on May 16, 2022, describes the two-step process and explains that a law is relevant if it includes the issue within its scope. Illustrations 2 and 3 examine identically-worded statutes that are interpreted differently by the courts of the enacting states, and the illustrations explain the consequences of those different interpretations. Section 5.02 discusses state specifications of scope and includes the example of a wrongful death statute creating a cause of action for deaths “caused in this state.” Such phrasing, comment a to Section 5.02 notes, is consistently interpreted as putting a territorial limit on the scope of the statute. But, the comment continues, “[a] court of the enacting state could interpret the statute differently.”

The suggestion that the Restatement tells courts how to interpret particular statutes, then, is simply not accurate. The Restatement tells courts to determine the scope of statutes in the same way they would go about any other question of interpretation. Brilmayer and Listwa start by finding in the Restatement something that is not there. They go on to say that the Restatement tells judges to ignore the two-step framework and “just follow the rules”—meaning the priority rules that the Restatement provides to resolve conflicts between laws.

This is not accurate either. Section 5.02 (a) states: “A court will decide a choice-of-law issue by determining whether there exists a material difference among relevant laws and, if so, deciding which of the conflicting laws will be given priority.” That is the two-step process described above. (And, as noted above, it is not telling courts to do anything other than what they are doing already.) Comment d to Section 5.02 provides a flowchart that explains further.

1. Flowchart. As described in this Section, a court considering a multistate case should perform the following steps:

(1) Decide whether a choice-of-law issue exists, i.e., whether there are material differences among relevant laws. This requires the court to identify the relevant laws. Relevant laws are those that include the issue within their scope. Statutory specifications of scope are controlling, as are interpretations by that state’s court of last resort. In the absence of an authoritative determination of the scope of a state law, courts may presume that its scope is broad, extending to all persons or events within the state’s borders and to events involving the state’s domiciliaries outside the state’s borders, especially if the issue is one in which use of the state’s law would protect or benefit a domiciliary;

(2) If a choice-of-law issue exists, decide to which law it is most appropriate to give priority. If a local statute directs the selection of a particular law, the court must follow that statute unless it is unconstitutional. If no local statute identifies the most appropriate law, the court should identify the law selected by the governing Section of this Restatement.

Brilmayer and Listwa appear to believe that the Restatement first tells judges how to interpret particular statutes and then tells them to ignore those interpretations and apply the priority rules. Neither of those beliefs is true. The problem they claim to identify simply does not exist.

The Solution

But what if it did? If the Restatement did give a two-step description of choice of law but then tell judges simply to apply its priority rules, we could imagine a tension arising. A state legislature might limit the scope of a statute in a way not anticipated by the priority rules, so that those rules would direct the selection of a statute that by its terms excludes the issue under consideration. For example, if the parties share a domicile, the Restatement’s priority rules will usually select the law of shared domicile to govern the issue of vicarious liability. But the domiciliary state might enact a statute imposing vicarious liability and limit its scope to accidents occurring in the state.

If a case arises featuring two domiciliaries and an accident outside the state, we would have an apparent tension between the two steps of the model. The first step, the determination of scope, tells us that no choice-of-law problem exists because the domiciliary state’s statute is not relevant to out-of-state accidents. The second step, the assignment of priority, tells us to use the law of shared domicile. And if the Restatement told judges to go straight to the second step, they would end up using the vicarious liability statute to govern a case outside its scope. This, as Brilmayer and Listwa put it, “would be substituting judicial fiat for legislative supremacy.”

The Restatement’s resolution of this tension, of course, is that it tells courts to perform the two steps sequentially. If there is no choice-of-law problem, we do not get to the second step, so the apparently contradictory priority determination never happens. That is the right way to resolve the apparent problem, because state legislatures are entitled to decide what cases their law reaches. The scope of a law, the Restatement says in comment c to Section 5.01, is a matter of the content and meaning of that law, within the power of the enacting legislature.

But that is not Brilmayer and Listwa’s solution. Ironically, they propose exactly the error they mistakenly attribute to the Restatement: go straight to the priority rules. The Restatement, they say, “should allow its black-letter rules to stand on their own merits.” But this is exactly the judicial fiat they disapproved of a few paragraphs earlier. In the vicarious liability hypothetical considered above, it would mean using the state’s law to govern a set of facts that the legislature has said it does not reach.

That is not a solution—or at least not one appropriate for a Restatement. There are many choice-of-law decisions dealing with statutes, and there is not a single one in which a court asserts the power to defy a state legislature’s definition of the scope of its law. Instead, courts consistently interpret statutes to determine whether an issue falls within the scope of more than one state’s law. If it does not, they say that no choice of law problem exists. If it does, they proceed to a second step of deciding which of the competing laws should be given priority. That is, of course, exactly what the Restatement tells them to do.


Brilmayer and Listwa provide a descriptive account of the Restatement that is disconnected from what it actually says. But even if their description were correct, their solution goes in the wrong direction. It amounts to ignoring what states say about the scope of their laws. That would get wrong precisely the cases in which legislatures have told us what the right answers are. This is contrary to every reported decision. It instructs courts to contradict other states as to the meaning of their law and to defy explicit instructions from their own legislatures. I doubt that such an approach is good policy, and I am confident it would hinder acceptance of the Restatement.