Abstract

The Supreme Court of Arizona, according to its repeated statement, "has consistently held that it will generally follow the Restatement of Law unless a different rule has been pronounced by the court in prior decisions or by legislative enactment." Fortunately, this statement need not, and indeed cannot, be taken literally. In the first place, the court itself has declared it "unwise to follow this rule blindly," and reserved the right to examine the "merits," wherever proper. Secondly, in a large number of cases, the court has exercised this right and continued its fine tradition of announcing new law, in the absence of primary authority, on the basis of a thorough weighing of conflicting policies. Finally, literal interpretation of this statement would impute to the court an unconstitutional practice. But even if understood as giving the Restatement mere persuasive authority, this statement, coming from the highest court of the State, is, at least in the law of conflict of laws, fraught with danger to the orderly administration of justice.

In this study, I shall first try to show that the court's statement, though referring to "holdings," would, if taken literally as recognizing the Restatement as a source of law, imply the unconstitutional abdication of the court of its judicial, and its assumption of a legislative function. I shall then attempt to prove that whatever merits it may have in other fields of the law, the Restatement should not be given even persuasive authority in the law of conflict of laws, because (1) the Restatement  of this subject is, and is likely to remain, a dogmatic structure frequently lacking contact with the living law; and because (2) reliance on this document in the past has created serious obstacles for Arizona courts in their endeavor to partake in the growth of the law elsewhere.

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