Certainty vs. Flexibility in the Conflict of Laws

Abstract

Traditional choice of law theory conceives of certainty and flexibility as opposed values: increase one, and you inevitably decrease the other. This article challenges the received wisdom by reconceptualizing the distinction. Rather than caring about certainty or flexibility for their own sake, it suggests, we care about them because each makes it easier to promote a certain cluster of values. And while there may be a necessary tradeoff between certainty and flexibility, there is no necessary tradeoff between the clusters of values. It is possible to improve a choice of law system with regard to both of them. The article demonstrates how this has happened in the history of choice of law and how it can be accomplished in the future.

Keywords: Conflict of laws, choice of law, jurisprudence, predictability, values, virtues, discretion, rules & standards, approaches, uniformity, territoriality, policy analysis, traditional versus modern theories, First Restatement, Second Restatement, Third Restatement, European approach, false dichotomies