Issue-by-Issue Analysis and Depecage in Choice of Law: Cause and Effect
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ISSUE-BY-ISSUE ANALYSIS AND DEPECAGE IN
CHOICE OF LAW: CAUSE AND EFFECT*
Symeon C. Symeonides**
INTRODUCTION: FROM BROAD CATEGORIES TO ISSUES
O NE of the many flaws of the choice-of-law rules of the first Conflicts
Restatement was their excessive breadth. Indeed, some of those rules
encompassed entire courses of the law school curriculum, such as torts, contracts,
and successions. For example, the Restatement provided only one rule (lex loci
delicti)' for all aspects of, or issues in, a tort conflict, and only one rule (lex loci
contractus) for all issues of contract formation and validity.2 Section 332 of the
Restatement provided that the law of the place of contracting determined, inter
alia, the issues of: (a) capacity to contract; (b) the necessary form; (c) the need
for mutual assent or consideration; and (d) fraud, illegality, and any other ground
of invalidity.
Such a broad rule as Section 322 assumed that each of the above issues
involved the same choice-of-law considerations and thus the application of the
same law (the lex loci contractus) was equally appropriate for any one and all of
them. Whenever this assumption proved inaccurate, the rule failed to produce an
apt solution to the conflict at hand. Indeed, these broad rules were inimical to
flexibility and aptness because they required courts to make wholesale choices
rather than narrow choices tailored to the needs of individual cases.
* This essay is dedicated to Professor William M. Richman with admiration for his
invaluable contributions to American conflicts law. Richman is a gifted teacher, a prolific writer, a
profound and independent thinker, and original theorist, as well as an all-around great guy who
has earned the affection of all us laboring in this field. It has been a blessing and a privilege to be
one of his numerous friends around the country.
** Alex L. Parks Distinguished Professor of Law and Dean Emeritus, Willamette University
College of Law; LL.B. (Priv. L.), LL.B. (Public L.), LL.M., S.J.D., LL.D.h.c., Ph.D.h.c.; Member,
Institut de Droit International.
1. See RESTATEMENT (FIRST) OF CONFLICT OF LAWS § 378 (1934) [hereinafter RESTATEMENT
(FIRST)]. In fact, the Restatement contained several sections designating the law applicable to
different aspects of a tort. See id. §§ 379-390. However, with minor exceptions, all of those
sections dictated the application of the same law-the law of the place of injury.
2. The Restatement provided a second rule (lex loci solutionis) for all issues of performance.
See RESTATEMENT (FIRST) § 358.
3. Id. § 332.
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Issue-by-Issue Analysis and Depecage in Choice of Law: Cause and Effect
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