Fifty Conflict of Laws 'Restatements': Merging Judicial Discretion and Legislative Endorsement

This article examines current choice of law methodologies and critiques proposals for new and improved methodologies. It rejects the call for a national approach and instead proposes that each state adopt its own statutory choice of law code. The author recommends that each state begin this process by conducting empirical research and analysis of its own choice of law jurisprudence to determine how judges have approached the issue since rejection of traditional methods. Such analysis would examine not only substantive results, but also the methodologies employed and the possible existence of various biases in choice of law analysis. A thorough analysis would also likely reveal clear patterns for those issues that reappear from time to time. Drafters of a state choice of law code, rather than creating a choice of law methodology from whole cloth, would base their recommendations on the state's own jurisprudence. Such a result engages the efforts of both the judicial and legislative branches of the state's government, thereby resulting in a credible written product that reflects the state's own policies and jurisprudence: a true restatement of the law.