This Note shares many of these misgivings. We can call these objections relativistic, epistemic, or sovereignty-based critiques. 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 probably cannot be trusted to discover it, and anyway it would offend the notion of equal sovereignty if one state were allowed to prefer its own laws over those prevailing elsewhere for no other reason than that it found those foreign laws distasteful. This Note will examine Leflar’s better law approach and will advance a line of critique that has not found voice in the secondary literature. It has been the subject of considerable controversy, attracting prominent critics and defenders alike. See generally Joseph William Singer, Commentary, Pay No Attention to that Man Behind the Curtain: The Place of Better Law in a Third Restatement of Conflicts, 75 Ind. See infra notes 4–9 and accompanying text. although its influence may be considerably more widespread. Symeonides, Choice of Law in the American Courts in 2012: Twenty-Sixth Annual Survey, 61 Am.
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, 2 × 2. Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Calif. According to one of the prevalent modern theories, our judge should consult five different criteria, the most important of which would have him 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.” 1 × 1.
Indeed, a crowd of law professors will be eager to guide his hand. The judge facing such a dilemma need not go it alone. Which state’s law should the Massachusetts court apply? And, just as importantly, on what basis should it choose? Smith bungled the fireworks therefore Jones would win. But suppose that under New Hampshire law, fireworks dealers are immune from liability for such injuries if the injuries resulted from misuse. Suppose Massachusetts tort law makes fireworks dealers strictly liable for injuries caused by products they sell. One night Smith sets off a Roman Candle in his backyard, but mishandles it and badly injures himself. Smith comes up from Massachusetts, buys a case, and brings it home. Suppose Jones is a New Hampshire fireworks dealer.