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63-522: Individual Restatement volumes are essentially compilations of case law , which are common law judge -made doctrines that develop gradually over time because of the principle of stare decisis (precedent). Although Restatements of the Law are not binding authority in and of themselves, they are potentially persuasive when they are formulated over several years with extensive input from law professors, practicing attorneys, and judges. They are meant to reflect

126-742: A Massachusetts corporation sued his employer for an injury received in California, seeking relief that would be unavailable under the law of Massachusetts. This was reaffirmed in Watson v. Employers Liability Assurance Corp. , 348 U.S. 66 (1954) held that neither the Full Faith and Credit Clause nor the Fourteenth Amendment was implicated when a couple who had bought an insurance policy in Illinois and then moved to Louisiana sued

189-479: A binding precedent, but all may be cited as persuasive, or their reasoning may be adopted in an argument. Apart from the rules of procedure for precedent, the weight given to any reported judgment may depend on the reputation of both the reporter and the judges. The legal systems of the Nordic countries are sometimes included among the civil law systems, but as a separate branch, and sometimes counted as separate from

252-402: A black-letter principle, comments, and illustrations, and, in the form of reporters' notes, a detailed discussion of all the cases that went into the principle summarized in that one section. By citing a Restatement section in a legal brief, a lawyer may bring to the attention of a judge a carefully studied summary of court action on almost any common law legal doctrine. The judge can then consider

315-455: A contract entered into in State Y. If a lawsuit arising from that transaction is brought in State X, the law of State X requires the courts of that state to apply the law of the state where the contract was made, which is state Y. However, the courts of State X might note that a court in State Y would apply the law of State X, because that is where the land is located, and the law of State Y follows

378-476: A court in one jurisdiction to apply the law of a different jurisdiction. The federal Constitution created a "plurilegal federal union" in which there are four types of conflicts between different legal systems: federal vs. state, federal vs. foreign, state vs. state, and state vs. foreign. The first type are vertical conflicts resolved by federal preemption pursuant to the Supremacy Clause (and

441-484: A gimmick to allow a court to apply the law of its own state. The test itself presupposes that, between the laws presented by the two or more states in which the action arose, there is one set of laws which is empirically better. Because courts will almost always presume that their own state has better laws, this is effectively a device to avoid applying choice of law principles altogether. The United States Supreme Court has held that there are certain limitations imposed by

504-414: A higher court. An appellate court may also decide on an entirely new and different analysis from that of junior courts, and may or may not be bound by its own previous decisions, or in any case, may distinguish them on the facts. Where there are several members of a court deciding a case, there may be one or more judgments given (or reported). Only the reason for the decision of the majority can constitute

567-556: A much smaller role in developing case law in common law than professors in civil law. Because court decisions in civil law traditions are historically brief and not formally amenable to establishing precedent, much of the exposition of the law in civil law traditions is done by academics rather than by judges; this is called doctrine and may be published in treatises or in journals such as Recueil Dalloz in France. Historically, common law courts relied little on legal scholarship; thus, at

630-681: A new precedent of higher authority. This may happen several times as the case works its way through successive appeals. Lord Denning , first of the High Court of Justice , later of the Court of Appeal , provided a famous example of this evolutionary process in his development of the concept of estoppel starting in the High Trees case: Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B. 130. The different roles of case law in civil and common law traditions create differences in

693-416: A relationship in State Y, and a cause of action arises between them while they are traveling through State Z, a court of any state applying this test would probably apply the law of State Y, because that state is the seat of the relationship between these two parties. The governmental interests test examines the interests of the states themselves, and the reasons for which the laws in question were passed. It

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756-472: A rule that says that if property located in State X is conveyed by a contract entered into in any other state, then the law of that other state will govern the validity of the contract. Suppose also that State Y has a rule that says that if a contract entered into in State Y conveys property located in any other state, then the law of that other state will govern the validity of the contract. Now suppose that party A conveys land located in State X to party B through

819-401: A tort or contract claim arose between the parties in that state. This period of intellectual ferment (which coincided with the rise of the legal realism movement) gave birth to a number of innovative new approaches. Courts may look for a provision in the law of the choice of law state that permits the court to use the lex fori , i.e. law of the forum state. For example, suppose State X has

882-500: A treatise. It will be invested with unique authority, not to command, but to persuade. It will embody a composite thought and speak a composite voice. Universities and bench and bar will have had a part in its creation. I have great faith in the power of such a restatement to unify our law. Andrew Burrows refers to the Restatements of the Law as informing the work of the advisory group that he convened to produce A Restatement of

945-403: Is a law that is based on precedents , that is the judicial decisions from previous cases, rather than law based on constitutions , statutes , or regulations . Case law uses the detailed facts of a legal case that have been resolved by courts or similar tribunals . These past decisions are called "case law", or precedent. Stare decisis —a Latin phrase meaning "let the decision stand"—is

1008-649: Is the brainchild of University of Chicago law professor Brainerd Currie , who outlined the test in a series of articles during the 1950s and 1960s. Currie's revolutionary work "dominated American choice-of-law thinking in the United States for almost half a century". Although Currie's critics now outnumber his defenders, interest analysis is still the most popular vehicle for teaching conflict of laws in American law schools , and it provides "the very language of contemporary conflicts theory". In interest analysis,

1071-452: Is therefore analyzed as an issue of constitutional law ), meaning that conflict of laws in the United States focuses on the latter three types. The complexity of American federalism and massive interstate diversity between the laws of the 50 states in the Union mean that U.S. federal and state courts as of the mid-2010s were deciding around 5,000 conflict-of-laws cases each year—far more than

1134-667: The American Law Reports annotations of the Lawyers Cooperative Publishing Company. In addition, appendix volumes included digest paragraphs of decisions of state appellate courts and federal courts citing the Restatements on each subject. The third series of Restatements was started in 1987 with a new Restatement of the Foreign Relations Law of the United States. The Restatement, Third, now includes volumes on Agency,

1197-612: The Due Process Clause of the Fourteenth Amendment . The doctrine steadily developed in a series of cases over the following decades. In Pacific Employers Insurance Co. v. Industrial Accident Commission , 306 U.S. 493 (1939), the court held that there was no violation of the Full Faith and Credit Clause where the state of California applied its own law to a case in which a Massachusetts employee of

1260-632: The High Court and the Court of Appeals are each bound by their own previous decisions, however, since 1966 the Supreme Court of the United Kingdom can deviate from its earlier decisions, although in practice it rarely does. A notable example of when the court has overturned its precedent is the case of R v Jogee , where the Supreme Court of the United Kingdom ruled that it and the other courts of England and Wales had misapplied

1323-483: The U.S. Constitution on the ability of states to apply their own law to events occurring in other states. In one of the earliest cases in this area, Home Insurance Co. v. Dick , 281 U.S. 397 (1930), the Court held that the state of Texas could not constitutionally apply its own rule invalidating contract clauses that required any statute of limitations under two years to a contract that had no relation to Texas beyond

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1386-492: The United Kingdom , United States , Canada , Australia , New Zealand , South Africa , Singapore , Ireland , India , Pakistan , Bangladeshi , Sri Lanka , Nepal , Bhutan , Israel and Hong Kong ), it is used for judicial decisions of selected appellate courts , courts of first instance , agency tribunals, and other bodies discharging adjudicatory functions. In the common law tradition, courts decide

1449-559: The ALI formulated the Model Penal Code , intended to guide legislators on what statutes they should enact as law. The Restatements of the Law is one of the most respected and well-used sources of secondary authority, covering nearly every area of common law. While considered secondary authority (compare to primary authority ), the authoritativeness of the Restatements of the Law is evidenced by their acceptance by courts throughout

1512-544: The English Law of Unjust Enrichment in the introduction to that work. Some of the most renowned legal scholars in the United States, including Judge Richard Posner and law professor Lawrence M. Friedman , have heavily criticized the Restatements, characterizing them as badly flawed. In a 2007 article, professor Kristin David Adams surveyed and summarized the various critiques of the Restatements, which included

1575-570: The Foreign Relations Law of the United States, released in 2018, was the first in the Restatement, Fourth, series to be completed; however, rather than being a complete update to the previous volume from the third series on the same subject, it is instead limited to selected topics in treaties, jurisdiction, and sovereign immunity. Other new projects are currently underway as part of the Restatement, Fourth, series on Property. Case law Case law , also used interchangeably with common law ,

1638-592: The Law Governing Lawyers, Property (Mortgages, Servitudes, Wills and Other Donative Transfers), Restitution and Unjust Enrichment, Suretyship and Guaranty, Torts (Products Liability, Apportionment of Liability, Economic Harm, and Physical and Emotional Harm), Trusts, and Unfair Competition. New Restatement projects are currently underway as part of the Restatement, Third, series on Conflict of Laws and Torts (Defamation and Privacy, Intentional Torts to Persons, Remedies, and Concluding Provisions). A volume on

1701-487: The Restatement section and make an informed decision as to how to apply it in the case at hand. While courts are under no formal obligation to adopt Restatement sections as the law, they often do because such sections accurately restate the already-established law in that jurisdiction, or on issues of first impression, and are persuasive in terms of demonstrating the current trend that other jurisdictions are following. Restatements are rare in common law jurisdictions outside of

1764-455: The Restatement, Second — updates of the original Restatements with new analyses and concepts with and expanded authorities. (A Restatement on Foreign Relations Law of the United States was also undertaken.) The second Restatement of the Law was undertaken to reflect changes and developments in the law, as well as to implement a new format that provided more expansive commentary and more meaningful illustrative material, affording fuller statements of

1827-472: The Restatements of Employment Law and Liability Insurance respectively. Projects are currently underway to further expand the series by drafting Restatements on the Law of American Indians, Charitable and Nonprofit Organizations, Children and the Law, Consumer Contracts, Copyright, Corporate Governance, and U.S. Law of International Commercial and Investor-State Arbitration. In 1952, the Institute started

1890-591: The United States Conflict of laws in the United States is the field of procedural law dealing with choice of law rules when a legal action implicates the substantive laws of more than one jurisdiction and a court must determine which law is most appropriate to resolve the action. In the United States, the rules governing these matters have diverged from the traditional rules applied internationally. The outcome of this process may require

1953-480: The United States, where law reports are more frequent. Former Justice of the High Court of Australia William Gummow attributes the requirement for Restatements in the United States to the lack of a nationwide court of final common law adjudication. On subjects where the law is not settled or states differ too widely, the ALI has not been able to produce a Restatement. In the area of criminal law, for example,

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2016-411: The United States. The Restatements have been cited in over 150,000 reported court decisions. In December 1923, Benjamin N. Cardozo explained the prospective importance of the Restatements in a lecture at Yale Law School : When, finally, it goes out under the name and with the sanction of the Institute, after all this testing and retesting, it will be something less than a code and something more than

2079-421: The case is not appealed , the decision will stand. A lower court may not rule against a binding precedent, even if it feels that it is unjust; it may only express the hope that a higher court or the legislature will reform the rule in question. If the court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, it may either hold that

2142-544: The civil law tradition. In Sweden , for instance, case law arguably plays a more important role than in some of the Continental codified law systems. The two highest courts, the Supreme Court ( Högsta domstolen ) and the Supreme Administrative Court ( Högsta förvaltningsdomstolen ), have the right to set precedent which is in practice (however not formally) binding on all future application of

2205-572: The consensus of the American legal community as to what the law is, and, in some cases, what it should become. As Harvard Law School describes the Restatements of the Law : The ALI's aim is to distill the " black letter law " from cases, to indicate a trend in common law, and, occasionally, to recommend what a rule of law should be. In essence, they restate existing common law into a series of principles or rules. Each Restatement section includes

2268-534: The court must determine whether any conflict between the laws of the states is a true conflict, a false conflict, or an unprovided-for case. The greatest flaw with Currie's analysis—and the reason it has been subject to harsh criticism for many years—is that in the real world, false conflicts and apparent conflicts are both relatively rare. Therefore, "almost all roads lead to the lex fori". Currie aggressively defended this outcome, but as Arthur Taylor von Mehren observed, widespread adoption of his style of analysis at

2331-409: The courts of any other country. As a result, Americans have accumulated "vast judicial experience in resolving conflicts cases". Until the 20th century, traditional choice of law rules were based on the principle that legal rights vest automatically at legally significant and ascertainable times and places. For example, a dispute regarding property would be decided by the law of the place the property

2394-664: The current case are called obiter dicta , which constitute persuasive authority but are not technically binding. By contrast, decisions in civil law jurisdictions are generally shorter, referring only to statutes . The reason for this difference is that these civil law jurisdictions adhere to a tradition that the reader should be able to deduce the logic from the decision and the statutes. Some pluralist systems, such as Scots law in Scotland and types of civil law jurisdictions in Quebec and Louisiana , do not precisely fit into

2457-478: The dual common-civil law system classifications. These types of systems may have been heavily influenced by the Anglo-American common law tradition; however, their substantive law is firmly rooted in the civil law tradition. Because of their position between the two main systems of law, these types of legal systems are sometimes referred to as mixed systems of law. Law professors traditionally have played

2520-471: The fact that the plaintiff was a Texas resident. The plaintiff had sued a New York reinsurer of a Mexican corporation that was primarily insured in Mexico, which is where the "injury" had occurred when a tugboat owned by the company was lost in a fire. The plaintiff was living in Mexico at the time (although not a resident), but returned to Texas to file suit. These contacts were insufficient to satisfy

2583-499: The following: Adams then defended the Restatement project by arguing that all these critiques were actually critiques of the common law itself. In the period between 1923 and 1944, the American Law Institute published Restatements of Agency , Conflict of Laws , Contracts , Judgments , Property , Restitution , Security , Torts , and Trusts . This series was later expanded in 2015 and 2019 with publication of

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2646-558: The international and interstate levels would result in "a legal order characterized by chaos and retaliation". Some courts have sought to distinguish different types of law, giving more weight to laws of foreign states that are intended to regulate conduct (e.g. prohibitions on disfavored activities), and less weight to laws of foreign states that are intended to allocate losses (e.g. tort immunity for charitable organizations ; joint and several liability). The comparative impairment test asks which state's policies would suffer more if their law

2709-518: The issuer of the policy under a provision in the Louisiana law that permitted such suits. A decade later, in Clay v. Sun Insurance Office, Ltd. , 377 U.S. 179 (1964), the court explicitly stated that insurance travels with the insured, and that policy holders who move from one state to another can expect to have the laws of their new domicile apply to the interpretation of the insurer's liabilities on

2772-420: The judge believes the academic's restatement of the law is more compelling than can be found in case law. Thus common law systems are adopting one of the approaches long-held in civil law jurisdictions. Judges may refer to various types of persuasive authority to decide a case. Widely cited non-binding sources include legal encyclopedias such as Corpus Juris Secundum and Halsbury's Laws of England , or

2835-414: The land. Most U.S. states frown upon renvoi in a choice of law situation. In this example, they would insist that the only law the courts of State X should look at is the law of contracts of State Y, not the "whole law" of State Y, which includes that state's law governing choice of law. The basic criticism of renvoi is that it can lead to an endless circle. In the above example, it could be argued that if

2898-513: The law applicable to a case by interpreting statutes and applying precedents which record how and why prior cases have been decided. Unlike most civil law systems, common law systems follow the doctrine of stare decisis , by which most courts are bound by their own previous decisions in similar cases. According to stare decisis, all lower courts should make decisions consistent with the previous decisions of higher courts. For example, in England,

2961-431: The law for nearly 30 years. Generally speaking, higher courts do not have direct oversight over the lower courts of record , in that they cannot reach out on their initiative ( sua sponte ) at any time to overrule judgments of the lower courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher courts. If a judge acts against precedent, and

3024-447: The law is applied in one district , province, division or appellate department . Usually, only an appeal accepted by the court of last resort will resolve such differences and, for many reasons, such appeals are often not granted. Any court may seek to distinguish the present case from that of a binding precedent, to reach a different conclusion. The validity of such a distinction may or may not be accepted on appeal of that judgment to

3087-415: The law of State Y points back to State X, then the law of State X would only once again require application of the law of State Y, and so forth and so on without end. The significant contacts test evaluates the contacts between the states and each party to the case, and determines which state has the most significant contacts with the litigation as a whole. This test has been criticized for failing to respect

3150-409: The law. Courts of appeal, both general courts ( hovrätter ) and administrative courts ( kammarrätter ), may also issue decisions that act as guides for the application of the law, but these decisions may be overturned by higher courts. Thus case law is used to determine the actual applicability and limits of a law and not, as in common law jurisdictions, the creation of law. Conflict of laws in

3213-480: The policy. Allstate Insurance Co. v. Hague , 449 U.S. 302 (1981) determined that the same analysis applies to both the Full Faith and Credit Clause and the Fourteenth Amendment; and that both are satisfied so long as there are sufficient aggregate contacts between the forum and the event giving rise to the cause of action. In the case itself, a Wisconsin resident who was employed over the state line in Minnesota

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3276-421: The precedent is inconsistent with subsequent authority, or that it should be distinguished by some material difference between the facts of the cases; some jurisdictions allow for a judge to recommend that an appeal be carried out. If that judgment goes to appeal, the appellate court will have the opportunity to review both the precedent and the case under appeal, perhaps overruling the previous case law by setting

3339-505: The principle by which judges are bound to such past decisions, drawing on established judicial authority to formulate their positions. These judicial interpretations are distinguished from statutory law , which are codes enacted by legislative bodies , and regulatory law , which are established by executive agencies based on statutes. In some jurisdictions, case law can be applied to ongoing adjudication ; for example, criminal proceedings or family law. In common law countries (including

3402-623: The published work of the Law Commission or the American Law Institute . Some bodies are given statutory powers to issue guidance with persuasive authority or similar statutory effect, such as the Highway Code . In federal or multi-jurisdictional law systems there may exist conflicts between the various lower appellate courts. Sometimes these differences may not be resolved, and it may be necessary to distinguish how

3465-480: The reasons for the positions taken. For example, the volumes generally included a set of Reporter's Notes that detailed the reasons on which the principles and rules stated were based and the authorities that supported them. And for the convenience of legal researchers, the second series of volumes also provided cross-references to the key numbers of the West Publishing Company's Digest System and to

3528-442: The sovereignty of the state in which the cause of action arose, and because courts can tip the balance in one way or another in deciding which contacts are significant. The seat of the relationship test specifically examines the relationship between the parties to the lawsuit, and uses the law of the state in which the relationship between the parties was most significant. For example, if two people who live in State X meet and develop

3591-467: The state. In Phillips Petroleum Co. v. Shutts , 472 U.S. 797 (1985), plaintiffs residing in all fifty states brought a class-action suit in the state courts of Kansas against an oil company that had failed to pay interest on certain leases. The Kansas court hearing the case simply assumed that the law of Kansas was adequate for all the claims. The Supreme Court disagreed, holding that the Kansas court

3654-418: The turn of the twentieth century, it was very rare to see an academic writer quoted in a legal decision (except perhaps for the academic writings of prominent judges such as Coke and Blackstone ). Today academic writers are often cited in legal argument and decisions as persuasive authority ; often, they are cited when judges are attempting to implement reasoning that other courts have not yet adopted, or when

3717-416: The way that courts render decisions. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often interpret the wider legal principles. The necessary analysis (called ratio decidendi ), then constitutes a precedent binding on other courts; further analyses not strictly necessary to the determination of

3780-487: Was killed in a motorcycle accident in Wisconsin. The decedent's wife then moved to Minnesota, where she was appointed administratrix of her husband's estate. She sued the insurance company to recover a higher amount permitted under Minnesota law, and the courts agreed that this was permissible, because of the combination of the decedent's employment contacts with the state, and the insurance company's commercial contacts with

3843-400: Was located. Disputes in tort would be decided by the place where the injury occurred. During the first half of the 20th century, the traditional conflict of laws approach came under criticism from some members of the U.S. legal community who saw it as rigid and arbitrary; the traditional method sometimes forced application of the laws of a state with no connection to either party, except that

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3906-456: Was not applied. This is similar to interest analysis, in that the interests of the state are taken into account - however, this test does not look to see which state benefits more from the application of its laws, but rather for situations in which the other state's interests will actually be harmed by the application of the laws of the forum state. Use of the "better rule" test, like renvoi, is frowned upon because it appears to be little more than

3969-419: Was required to determine the law of each state on the substantive questions of law, and apply the laws of each state to the claims brought by plaintiffs from that state. In the related case of Sun Oil Co. v. Wortman , 486 U.S. 717 (1988), the Court refused to apply this rule when Kansas had chosen to apply its own statute of limitations to causes raised by a diverse population of class-action plaintiffs. There

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