Cite as: 509 U. S. 764 (1993)
Scalia, J., dissenting
United States law). Where applicable foreign and domestic law provide different substantive rules of decision to govern the parties' dispute, a conflict-of-laws analysis is necessary. See generally R. Weintraub, Commentary on Conflict of Laws 2-3 (1980); Restatement (First) of Conflict of Laws § 1, Comment c and Illustrations (1934).
Literally the only support that the Court adduces for its position is § 403 of the Restatement (Third)—or more precisely Comment e to that provision, which states:
"Subsection (3) [which says that a State should defer to another state if that State's interest is clearly greater] applies only when one state requires what another prohibits, or where compliance with the regulations of two states exercising jurisdiction consistently with this section is otherwise impossible. It does not apply where a person subject to regulation by two states can comply with the laws of both . . . ."
The Court has completely misinterpreted this provision. Subsection (3) of § 403 (requiring one State to defer to another in the limited circumstances just described) comes into play only after subsection (1) of § 403 has been complied with—i. e., after it has been determined that the exercise of jurisdiction by both of the two States is not "unreasonable." That prior question is answered by applying the factors (inter alia) set forth in subsection (2) of § 403, that is, precisely the factors that I have discussed in text and that the Court rejects.11
11 The Court skips directly to subsection (3) of § 403, apparently on the authority of Comment j to § 415 of the Restatement (Third). See ante, at 799. But the preceding commentary to § 415 makes clear that "[a]ny exercise of [legislative] jurisdiction under this section is subject to the requirement of reasonableness" set forth in § 403(2). Restatement (Third) § 415, Comment a. Comment j refers back to the conflict analysis set forth in § 403(3), which, as noted above, comes after the reasonableness analysis of § 403(2).
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