The Second Restatement has played a constructive role in liberating courts from the straight-jacket of its predecessor and facilitating the American choice-of-law revolution of the 1960s. Nevertheless, and despite its apparent popularity among judges, the Second Restatement is woefully inadequate to meet today’s needs. Its few black-letter rules are over-broad and anachronistic, and its much more numerous “non-rules” are much too malleable and thus uncertain. More importantly, the Restatement has nothing to say on a vast array of conflicts that were non-existent or infrequent in the 1960s but are all too common today, such as conflicts involving “mega torts,” products liability, punitive damages, environmental pollution, same-sex relations, cyberspace conflicts, and, especially, international conflicts.
A new Restatement can remedy these deficiencies and fill the gaps, while also providing an opportunity to: (a) assess the accumulated interstate and international experience in resolving the above conflicts and extracting from it solutions that meet today’s needs; (b) extract, evaluate, and articulate the lessons of the revolution, both positive and negative; and (b) attain a new and proper equilibrium between the perpetually conflicting needs of certainty and flexibility by providing more specific guidance, especially for tort and contract conflicts.