Questions on the Better Law Approach


1) Leflar argues that predictability of results is especially important in contract cases and argues for a rule of validation. Why is that so? Does he have any explanation of why the other four factors do not predominate?

2) Is the better law approach really the public policy doctrine in disguise?

3) Kell v Henderson is discussed in Milkovich v Saari. How is the resolution of that case compatible with what you know about New York conflicts law from Tooker and Schultz?

4) What does it mean for a law to be not better? Is it a pure value judgment about the law? Or is it tied to the idea that the law does a bad job realizing its goals? Does it matter to the court in Milkovich that if guest statutes exist to discourage fraud they are seriously over- and under-inclusive?

5) Can the fact that a law is antiquated really suggest that it is not better? Perhaps the antequated law is still the right one.

6) Consider the different ways that the five Leflar factors are used in Jepson compared to Milkovich.

7) Does the Jepson court basically admit that it cannot tell which law is better?