The saying goes “hard cases make bad law.” In the field of conflict of laws, hard cases make bad law when we unduly oversimplify them, seeking tidy solutions for untidy facts. In order to avoid this oversimplification, and give both states’ and both parties’ interests due weight, we should focus on three norms: Substantive Justice (what conflicts scholars call “better law”), Comity, and Fairness and the Protection of Justified Expectations. We must recognize the policies of both states, the rights of both parties, and provide a reasonable justification for applying one state’s law over the other. The first step in any conflict of laws analysis is to analyze charitably the potential interests of both states and the entitlements of both parties. Such analysis will allow us, first, to identify false conflict cases: cases where one state really does not have an interest in applying its law. These cases include certain common domicile cases, certain lonely domicile cases, and certain fortuitous injury cases. In true conflict of laws cases, or “hard” cases, a justification that could be accepted by all parties forapplying one state’s law over the other is vital. Often, (but not always) the “better law” analysis will provide the most compelling justification in true conflict of laws cases. All modern forms of conflict analysis include consideration of “better law”; they just call it something else. The sooner we recognize the relevance of “better law,” the sooner wecan give it its proper place alongside comity and fairness in understanding and adjudication conflicts of law. Hard cases may not necessarily make bad law—and it may take frank application of “better law” to resolve them.
The full text of this Article is available to download as a PDF.