Readers, I want to call to your attention two important developments in the Restatements of the Law that will be of interest. I’m not going to comment on these developments here, though I may come back to them in later posts.
First, the ALI has approved portions of the Restatement (Fourth) of the Foreign Relations Law of the United States, in particular the sections on jurisdiction, immunity, and treaties.
Second, the Duke Journal of Comparative and International Law has an entire issue on the need for a comparative and transnational focus in the coming Restatement (Third) of Conflict of Laws. The forward is by Ralf Michaels and friend-of-the-blog Chris Whytock, and the issue features articles by several leading scholars. This is a topic near and dear to my heart. Post-Kiobel, what might formerly have been brought as claims of, say, slavery might now be brought as claims of false imprisonment. What might formerly have been a claim for torture might now be a claim for assault and battery. And so forth. And those cases will likely feature a conflict of laws problem. US judges have to become comfortable determining the substance of foreign tort law, sometimes in countries off the beaten path that may not be so familiar to American judges or lawyers.