Conflict of Laws M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Spring 2002

General instructions

This is a closed book exam. Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam. Do not remove any exam materials, questions, or blue books from the room during the exam. After you complete the exam and turn in your blue books, you may take the questions with you when you exit the room.

The exam consists of two parts. You will have three hours to complete the exam, and recommended times are indicated for each part. Answer all questions.

Identify yourself on your blue books only by your exam number. By placing the exam number on your blue book and by submitting your blue book for credit, you are agreeing to the following pledge (as required by law school policy):

"On my honor I have neither given nor received improper assistance. And I will report any improper assistance that I am made aware of."

Definitions, terms, and conditions

Reference to the first Restatement means the Restatement [first] of the Law of Conflict of Laws (1934). The term "state" means a state of the United States. The term "country" means a sovereign power that is neither a state of the United States nor the government of the United States.

No effort has been made to achieve legal verisimilitude, and laws that are included in questions should be considered accurate only hypothetically and for purposes of answering the questions on this exam. Do not assume any additional fact or law, except those laws studied in the course, without stating explicitly your assumption and explaining why such additional information is necessary for your answer.

PART I. SHORT ANSWERS (120 minutes for this part--or an average of ten minutes for each question)

Instructions. Write a coherent literate response to each of the following problems. Each problem in this part can be answered adequately with a response that is no longer than one paragraph.

1. Stanford R. ("Stinky") and Susan Q. ("Sue") Williams were married in Memphis, Tennessee in 1989. From 1989 to 1999 they resided in northern Mississippi. They had one child, Junior. Every year they took summer vacations in the state of Northern Kentucky. In 1992 they bought a small cabin on a lake in Northern Kentucky. The property was titled in the names of both Stanford and Susan Williams.

While on vacation in Northern Kentucky during the summer of 1998, Stinky had an adulterous affair with Malita, a Northern Kentucky citizen. In February 2000 Stinky decided to get a divorce. To avoid possible problems with getting a divorce in Mississippi, he took an indefinite leave of absence from his job in Mississippi, packed his suitcase, and drove to the cabin in Northern Kentucky.

Under the law of Northern Kentucky, a party filing for a divorce must be a resident of Northern Kentucky and also have lived in the state for at least three weeks prior to filing for the divorce.

Stinky lived in Northern Kentucky for one month, during which he applied for and received a Northern Kentucky drivers license and a library card for the state library system. Then he filed for a divorce from Sue and asked the court to award him custody of Junior. Pursuant to Northern Kentucky law, he served Sue with process by sending the summons and copy of the divorce petition by certified mail to her residence in Mississippi.

Sue ignored the proceedings, and the Northern Kentucky court granted Stinky a divorce and awarded him custody of Junior. In entering judgment the Northern Kentucky court specifically found that it had jurisdiction and entered a finding that Stinky was a resident of Northern Kentucky at the time of the proceedings.

Stinky and Malita got married in Northern Kentucky immediately after the divorce became final.

When Stinky returned to Mississippi in 2001 to pick up Junior, he was arrested by the sheriff and has been charged and indicted with the crime of bigamy.

Stinky has filed a motion to dismiss the indictment, attaching a certified copy of the divorce decree from Northern Kentucky.

Rule on the motion and explain.

2. Same facts. While Stinky was being held in the county jail, Sue served him with process in a civil action in Chancery Court in Mississippi seeking a decree of divorce and a decision awarding her custody of Junior. Stinky has moved to dismiss. Rule on the motion and explain.

3. On April 1, 1999, Peter, Paul, and Pam were passengers on a tour bus operated by Tower Tours, Inc. in the sovereign country of Narnia. The bus was struck by a car in an intersection when the bus driver failed to stop for a red light. Peter, Paul, and Pam were injured in the collision.

Peter is a resident of Narnia but was a resident of Mississippi at the time of the accident. Paul is a resident of Mississippi now and was a resident of Mississippi at the time of the collision. Pam was a resident of Narnia at the time of the collision, but after the accident she moved to Mississippi, became a United States Citizen, and married Paul.

On April 15, 2001, Peter commenced a civil action in state court in Mississippi against Tower Tours, Inc., alleging negligence and demanding damages for personal injuries sustained in the collision on April 1, 1999.

The statute of limitations for personal injury claims in Narnia is two years. Assume that the applicable statute of limitations under Mississippi law is three years.

Tower Tours, Inc. filed a motion to dismiss the claims as time barred. Rule on the motion and explain.

4. Same facts. On April 16, 2001, Paul commenced a civil action in state court in Mississippi against Tower Tours, Inc. Defendant filed a motion to dismiss the action as time barred. Rule on the motion and explain.

5. Same facts. On April 17, 2001, Pam commenced a civil action in state court in Mississippi against Tower Tours, Inc. Defendant filed a motion to dismiss the action as time barred. Rule on the motion and explain.

6. Don Donner, a citizen of the country of Unkschussland, owned 10000 shares of Unkschuss Oil Co. common stock. In 1985 he executed a deed of trust in Unkschussland appointing Addie Streeter, a Mississippi citizen who practiced law in Jackson, Mississippi, as administrator of the trust. Donner sent the certificates for the shares of stock to Streeter. He did not give her any specific directions regarding the investment of the corpus of the trust.

According to the terms of the trust, Donner was to receive all the income from the trust during his life, but at his death the shares of stock were to be distributed to "Ben Fisher and his heirs."

Donner died in 2000. He received the income produced by dividends during his life. Unfortunately, the value of the shares of stock had decreased from $2,000,000.00 to $714.00.

Assume that the law of Mississippi requires a trust administrator prudently to invest the corpus of a trust and, absent specific directions prohibiting it, to sell and reinvest a trust that is invested in one stock in order to reduce the risk of loss in the event that one stock loses value. In contrast, the law of Unkschussland, in order to encourage investment in local corporations, provides that trust administrators who invest in certain corporations identified by statute are absolutely immune to civil liability for any loses arising from investment in those corporations. Unkschuss Oil Co. is one of the corporations listed in the statute.

Ben Fisher and the estate of Donner have sued Streeter in Unkschussland court alleging a breach of fiduciary duties in her failure to diversify the trust corpus and demanding damages in the amount of $7,000,000 (which its experts are prepared to show is the amount that an average, properly diversified trust valued at $2,000,000 would be worth today).

Streeter moves to dismiss under the Unkschussland statute. Unkschussland follows the first Restatement. Rule on the motion and explain.

7. Same facts. Six months after Donner's death, Ben Fisher died. Fisher, a citizen of Unkschussland, died testate. His will provided: "I leave all my property and any property to which may be entitled, to the love of my life, Binky." He left nothing to his only son Sonny.

Under the law of Unkschussland a gift in the form "to Ben Fisher and his heirs" gives a life estate to Fisher with remainder in fee simple absolute to his heirs.

Under the law of Mississippi, the language "to Ben Fisher and his heirs" confers fee simple absolute to Fisher.

Sonny and Binky sue each other, the estate of Donner, and Streeter in Unkschussland court. Under the first Restatement, who is entitled to the corpus of the trust and why?

8. Wrap World Corp., incorporated in the state of East Dakota with its principal place of business in Snowtown, East Dakota, operates a restaurant in East Dakota that specializes in wraps--sandwiches in which the interiors are wrapped in large flat pieces of bread.

On March 15, Guiliani Caesar, a resident of the state of West Dakota who was travelling through East Dakota, stopped at Wrap World's restaurant and ordered the Deluxe Wrap, a mixture of egg and chicken salad with extra mayonnaise.

After finishing lunch, Caesar left the restaurant and began driving home. While he was still in East Dakota, Caesar began to experience sharp stomach pains. He pulled off the road briefly but decided to try to get home.

The pains got worse after Caesar entered West Dakota. Reacting to a particularly sharp pain, Caesar bent over and lost control of the car. As a result, he swerved into the oncoming traffic and smashed into a car driven by Thelma Patterson. Patterson, a resident of East Dakota, was driving home from shopping at a mall in West Dakota. Patterson was killed. Caesar suffered serious injuries and property loss in the collision.

Under the Food and Drug Purity Control Act of East Dakota, a commercial vendor of food is "liable for all damages proximately caused by any poisoned food served for value." The East Dakota supreme court in Fortune v. Burger World, 247 E.D. 2d 199 (1987), authoritatively construed its Food and Drug Purity Act to impose strict liability for all damages sustained by any person who suffered food poisoning.

West Dakota has no separate statute for serving bad food and imposes liability on food vendors who cause food poisoning only under circumstances where the injured party can show negligence.

Caesar commences a civil action in West Dakota against Wrap World and moves for summary judgment arguing that it is strictly liable. Wrap World defends arguing it is only liable if negligence can be proven. East Dakota follows the first Restatement and West Dakota follows Interest Analysis. Rule on the motion and explaining what standard of care applies.

9. Same facts. West Dakota follows the rule of contributory negligence under which any negligence assignable to a plaintiff completely bars any recovery. East Dakota follows comparative negligence under which a plaintiff's negligence reduces but does not bar recovery. For purposes of this question please assume that Caesar was negligent in continuing to drive after feeling sharp pains that interfered with his ability to drive.

Wrap World moves for summary judgment arguing that Caesar's claim is completely barred by contributory negligence. Caesar defends arguing that his claim is only reduced by comparative negligence but not barred. Rule on the motion and explain what defense applies.

10. Same facts. The estate of Patterson commences a civil action against Wrap World in state court in West Dakota. In Luckless v. Burger World, 249 E.D. 2d (1987), the East Dakota supreme court held that a person who suffered property damage caused when the victim of food poisoning got sick did not have a cause of action against the provider of poisoned food under the state's Food and Drug Purity Control Act.

But in West Dakota, where a food vendor is shown to be negligent in causing food poisoning, the West Dakota supreme court has held in Burger World v. Victor, 971 W.D. 47 (1987), that the tortfeasor is also liable for damages sustained by third persons injured as a result of the illness suffered by the victim of food poisoning.

Wrap World moves to dismiss under the law of East Dakota. Rule on the motion and explain.

11. Same facts. Patterson had four insurance policies with Everystate Insurance Co. at the time she died. In addition to other coverage, each policy provided that the "insured owner may recover up to $10,000 for actual damages caused by a tortfeasor who is uninsured at the time of the accident." Caesar was uninsured at the time of the accident. Each policy also provides that "any litigation concerning coverage under this policy shall be governed by the law of the state of East Dakota and any litigation commenced to enforce rights or obligations under this policy may be commenced in any state or federal court located in the state of East Dakota."

The East Dakota supreme court has disallowed stacking so that a person with multiple insurance policies on multiple vehicles may only recover on one of the policy's uninsured motorist provisions. The West Dakota supreme court allows stacking of uninsured motorist coverage.

Patterson commences a civil action in West Dakota against Everystate Insurance Co. Defendant has already paid the plaintiff $10,000 under one policy and moves to dismiss her claims on the other policies arguing that stacking should not apply. Rule on the motion and explain.

12. Same facts. At the same time it files a motion to dismiss the stacked claims, Everystate also files a motion to dismiss under the forum selection clause. Rule on the motion and explain.

PART II. ANALYTIC ESSAYS (60 minutes)

Instructions. Write a coherent, literate essay in the Blue Book that responds to the following problem.

The Offensive Marriage Act

In 2001 the state of North Nevada enacted the Offensive Marriage Act which permits adult homosexuals to get married. The legislators realized the Act would be controversial and did not want to encourage homosexuals from other states to visit the state solely for the purpose of getting married. Accordingly, the Act is limited to Nevada residents. Moreover, in order to reduce false claims by nonresidents seeking to get married in North Nevada, the Act requires that persons of the same sex applying for a marriage license must submit proof that they have actually lived in the state of North Nevada for six months prior to the date of application.

Terry and Tracy, who are of the same sex, have just moved to North Nevada with the intent to remain there. Terry and Tracy are citizens of the United States who previously resided in the state of Mississippi. Terry and Tracy want to get married so they can buy a house jointly (as tenants by the entirety) and live together in North Nevada as a married couple. Their application for a marriage license was denied because they failed to submit proof of residence for the required six months.

Billie and Bobbie are another same-sex couple. Billie is a citizen of the United States and a resident of South Nevada. South Nevada prohibits same-sex marriages. Bobbie is a citizen of Canada admitted to permanent residency. The application of Billie and Bobbie for a marriage license was denied in North Nevada because they were nonresidents.

A lawyer representing Terry, Tracy, Billie, and Bobbie has contacted the state and requested that the state stop enforcing the residence and durational residency restrictions in the North Nevada statute. Anticipating the filing of an action for a temporary restraining order, the North Nevada Attorney General has come to you for advice.

Please write an opinion letter that identifies probable grounds for challenging the statute, explains available defenses, and evaluates the merits of the challenges. A complete answer will consider the common law background, the prevailing law in the absence of the statute, and constitutional grounds for challenging the state legislation (including relevant case authority).