Hairsplitting and Complexity in Conflict of Laws: The Paradox of Formalism

48 Pages Posted: 29 Jan 2009

See all articles by Laura E. Little

Laura E. Little

Temple University - James E. Beasley School of Law

Date Written: January 27, 2009


My wife is not my wife. Such a sentence may seem self-contradictory and meaningless. However, as Professor Laura Little points out, such a statement in the context of conflict of laws could be entirely accurate because of differing approaches within and among state laws regarding the definition of a "spouse." In this article, Professor Little explores why such complexities abound in conflict of law cases, identifies sources of this complexity, and analyzes the role of formalist (rule-based) decision-making processes in this area of law.

In the first part of the article, Professor Little discusses the rhetorical ambiguities that abound in conflict of laws jurisprudence. She focuses on three interconnected categories of qualities often found in the case law: multiple meaning, characterization, and "hairsplitting." Next, Professor Little addresses sources of complexity, including the United States federalist system of government, the fact that conflict of laws is mostly a common law discipline, judges' concerns about appearing impartial when making choice of law decisions, and the influence of American legal culture's preference for explicit rules and precedential authority in deciding courses of action.

In the final part of the article, Professor Little discusses the important role of formalism in conflict of law jurisprudence, explaining the "three paradoxes" of formalism that make this decision-making approach both a cause of and potential cure for complexity in this area of law. The first paradox of formalism, which Professor Little calls "the bulging balloon," results from the way rigidly rule-based approaches invite the creation of numerous exceptions and other attempts to "game" the rules, ironically leading to more complexity. This leads to the second paradox, which is that once the decisionmaker decides to make an end run around the rules, he has even more incentive to avoid candor in explaining his decision. Finally, despite the seeming failure of formalism to reduce complexity, attempts at creating more functionalist, discretionary approaches to conflict of laws decision-making usually result in an evolution back toward more formalistic approaches. Professor Little suggests that the enduring emotional and cognitive appeal of formalism lies in the very elusiveness of its goal, which allows adjudicators to continue believing in the possibility of a simple, rule-based decision-making system. She concludes by arguing that it is the delusion of believing that such a system is possible that may actually improve decision-making, leading adjudicators to enact a kind of self-fulfilling prophecy by trusting that rules will, in fact, simplify their decision-making process.

Keywords: conflict of laws, choice of law, formalism, functionalism, adjudication, legal theory, federalism, state law, rhetoric, rhetorical devices, jurisprudence, Better Rule of Law, center of gravity, governmental interest analysis, procedural law, substantive law, Erie

JEL Classification: K10, K12, K13, K19, K30, K34, K39, K40, K49

Suggested Citation

Little, Laura E., Hairsplitting and Complexity in Conflict of Laws: The Paradox of Formalism (January 27, 2009). UC Davis Law Review, Vol. 37, p. 925, 2004. Available at SSRN:

Laura E. Little (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-8955 (Phone)
215-204-1185 (Fax)

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