Publishing a restatement of choice of law is an ironic act. The project of all the restatements, of torts and contracts and the rest, is partly to spur uniformity in the law. But if the law ever truly became uniform, there would be no need for choice of law, or for a restatement thereof. The solution to the paradox is that a restatement of conflicts, even as it tries to build common ground on choice of law, must also respect the lack of common ground elsewhere. It must, to be true to its own task, assume that the other restatements will fail in their ambitions. Hence, a restatement of choice of law needs to distinguish, carefully and rigorously, between choice of law and municipal law. It can prescribe the former but not the latter.
What I have called first-order choice of law-a legal system’s effort to work out its own substantive doctrine in the light of jurisdictional complexity-occupies a gray zone between municipal law and second-order choice of law. Nevertheless, to the extent that first-order choice of law proceeds from the substantive concerns of particular legal systems, a restatement of choice of law needs to treat such first-order questions with care and humility.
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