Two weeks ago I spent the day at a meeting for the project to create a Third Restatement of Conflict of Laws. For the reasons I discussed on another blog long ago, I remain unsure that another Restatement of Conflict of Laws is a good idea, but working on the project has made me think about how tricky the project of Restatements is.

One much-discussed problem is the relationship between positive and normative analysis. Most of the time the restatements describe the majority rule, but sometimes they instead recommend a minority rule or a new rule. As I understand it, the general practice is that this is fine, so long as it is explicitly disclosed and normatively justified. But even putting that kind of explicit normative change to the side, a number of confusing problems come up in deciding what a Restatement should be restating:

One issue is the denominator problem. Restatements are very long and have lots and lots of detail. So for any given rule, it’s possible that most states simply haven’t clearly stated what their rule is on that specific topic. If so, the “majority rule” might actually be only a handful of cases. But those cases may or may not be representative of the logic or likely outcomes in most states.

A related issue is the combination problem. Suppose a majority of jurisdictions follow rule X. And a majority of jurisdictions follow rule Y. That doesn’t mean that a majority of jurisdictions follow rule X+Y. Indeed, depending on the denominator problem, it’s possible that none do. And of course this issue scales up across the whole Restatement.

A final issue is the relevance of statutes. Restatements generally focus on common-law topics, but sometimes the state legislatures have adopted statutes changing the common-law rule. Should one simply restate the common-law rule that would have applied in the absence of the statute, or use only the non-statutory states as the denominator? Or should one try to Restate a new common law rule that matches the prevalent statutory rule? My instinct is that the former is better, because it treats the decision whether to pass a statute as meaningful, but I think the latter is common.

Even the purely descriptive parts of a Restatement project can subtly transform the common law.