Bundled Systems and Better Law: Against the Leflar Method of Resolving Conflicts of Law

Suppose Jones is a New Hampshire fireworks dealer. Smith comes up from Massachusetts, buys a cache, and brings it home. One night Smith sets off a Roman Candle in his backyard, but mishandles it and badly injures himself. He sues Jones in Massachusetts. Massachusetts tort law makes fireworks dealers strictly liable for injuries caused by products they sell. Under New Hampshire law, by contrast, fireworks dealers are immune from liability for such injuries if the injuries resulted from misuse. Which state’s law should the Massachusetts court apply? And, just as important, on what basis should it choose? The judge facing such a dilemma need not go it alone. Indeed, the crowd of law professors eager to guide his decision would be downright overwhelming. According to one of the prevalent modern theories, the judge should consult five different criteria, the most important of which would have the judge choose whichever of the conflicting laws is “better.” That is to say, the court should “prefer rules of law which make good socio-economic sense for the time when the court speaks.” This five-factor choice of law method, first proposed by Professor Robert Leflar in 1966 and commonly known as the “better law” approach, has been formally adopted in five states (and is at work “behind the curtain” in perhaps countless more). Unsurprisingly, it has been the subject of considerable controversy, with prominent critics and defenders alike. This paper will examine Leflar’s better law approach and will advance a line of critique that has not, to my knowledge, found voice in the secondary literature. As will be explained in more detail below, most of the scholars who take issue with better law argue that there simply is no such thing as an objectively “better” law, or if there is, judges are unlikely to discover it, and anyway each state has the prerogative to set its own priorities and legislate its own theory of justice. We can call these objections first-order critiques, because they refuse to accept the theoretical possibility, or normative acceptability, of better law adjudication. I share many of these misgivings. But I would like to propose what might be called a second-order critique. Even if we accept the better law theory’s basic but controversial premises—an implicit instrumental theory of private law, for instance, and the normative acceptability of courts making value judgments about their sister states’ laws—the better law approach should still be avoided. As I will argue, the better law method is fundamentally flawed because it springs from a bundle- of-rights conception of private law that is overly reductive. More specifically, the better law approach—in theory and in practice—fails to appreciate the possibility that any specific legal rule is part of a system of interrelated laws that are structured to operate in tandem and, whatever effects they produce in the world, do so as a consequence of that structure. This misconception leaves the better law analyst vulnerable to fallacies of isolation, division, and composition, and apt to overlook system effects and tailoring as features of private law domains. In developing this line of critique, I have drawn on insights from inside and outside private law, including from public law institutional design and the general theory of second best in economics. If my claims about the structured nature of private law systems are correct, or even plausible, it is misguided to suppose that a discrete legal rule can be plucked out from the system of which it is a part and evaluated for the socioeconomic effects it is likely to engender. The better law method is therefore inadequate to the task it sets for itself.Recipient of Harvard Law School’s 2015 Project on the Foundations of Private Law Student Writing Prize