Examples & Explanations: Conflict of Laws, Second Edition by Hoffheimer Michael H

Author:Hoffheimer, Michael H. [Hoffheimer, Michael H.]
Language: eng
Format: epub
Publisher: Aspen Publishers
Published: 2012-11-05T00:00:00+00:00

Moderate Better Law

In Clark v. Clark, 222 A.2d 205 (N.H. 1966), a New Hampshire driver injured a New Hampshire passenger in Vermont where there was a guest statute. The court applied the better law approach. It found that the first consideration (predictability) did not apply to torts. It found that the second consideration (maintenance of interstate and international order) did not apply, because that consideration was designed to prevent the application of the law of a jurisdiction that had no interest in applying its law. The forum obviously had an interest in applying its loss-shifting rule to residents of the forum state. It found that the third factor (simplification of the judicial task) would never prevent a forum from applying forum law.

The court relied on considerations four (advancement of forum’s governmental interest) and five (better rule of law). It concluded that the forum had a governmental interest in permitting a forum resident to recover under forum common law. And it concluded that the forum law was better than the foreign guest statute. It reached this conclusion by determining that guest statutes were anachronistic, no longer served their original purposes, and had been narrowly construed by courts.

The decision provides an example of a moderate better law approach because the better law consideration was not the only factor that supported application of forum law. On the contrary, the forum had a strong interest in application of its law, and the foreign state had little or no interest in the application of its guest statute to a case involving parties and an insurance company who were not nonresidents of the foreign state. Although incompatible with the traditional territorial rule, the Clark decision reached the same outcome as all other modern approaches.

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