Eclecticism in Methods for Resolving Tort and Contract Conflict of Laws: The United States and the European Union

This Article analyzes the three types of eclecticism found in choice of law The first type, second-look eclecticism, is employed by courts when an initial choice-of-law method (territorialism, personal-law theory, or the better law approach) yields no conclusive result and so a second inquiry, based on a different choice-of-law method is undertaken. The second type, called depecage eclecticism, occurs when courts use one choice-of-law theory to resolve most of the issues in an area of law, but a different theory for particular issues arising out of the same area of law. The final type, big-mix eclecticism, finds expression in the center of gravity approach, where a court looks to the law of the state with the most contacts, including territorial, personal-law, and even better law considerations. After fleshing out each type of eclecticism and analyzing courts\u27treatment of cases under each type, the Article concludes that eclecticism is essential to the interest analysis method. An eclectic use of one-shot terrtorialism or the use of center of gravity is acceptable. Big-mix eclecticism underlying sections 145 and 188 of the Second Restatement also makes sense. Finally, this Article demonstrates that second-look switching from interest analysis to lex loci as done in Schultz v. Boy Scouts is indefensible, and most other instances of eclecticism are at least dubious