Conflict of Laws M.H. Hoffheimer
Final Exam University of Mississippi Law School
Spring 2006
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 two and one-half 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 (90 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. In January 2002, Pam, a resident of the state of Mississippi, drove to the state of West Carolina to do some shopping at the discount mall. While stopped for a red light at an intersection in the state of West Carolina, Pam was struck from the rear by a truck driven by Dobson, a resident of West Carolina.
In November 2005, Pam commenced a civil action against Dobson in West Carolina state court stating a cause of action for personal injuries resulting from the 2002 collision.
The statute of limitations for personal injuries in West Carolina is four years and the applicable Mississippi statute of limitations is three years. West Carolina follows the first Restatement. Dobson moves to dismiss under Mississippi's statute of limitations.
You are the West Carolina judge. Rule on Dobson's motion and explain.
2. Same facts. Assume that the court (rightly or wrongly) denied the motion. During discovery, Dobson obtains an admission from Pam that one of her rear brake lights was not operating at the time of the accident. This was in violation of a West Carolina safety ordinance and thus establishes negligence per se on the part of the plaintiff under West Carolina law.
West Carolina retains contributory negligence (under which any negligence by plaintiff that contributes to her injuries constitutes a complete bar to recovery) while Mississippi has adopted comparative negligence (under which plaintiff's negligence may reduce but does not completely bar recovery).
Dobson moves for summary judgment arguing that West Carolina law applies and bars recovery. You are the West Carolina judge. Rule on the motion and explain.
3. Same facts. But assume the case was litigated instead in Mississippi. Explain 1) whether a Mississippi court would apply comparative or contributory negligence and 2) whether the Mississippi court would dismiss the claim as time barred under the statute of limitations.
4. Peter and Deborah, lifelong residents of the state of East Carolina, went on a car trip to West Carolina to look at the sights. While Deborah was driving in West Carolina, she answered her cell phone, lost control of the car, veered off the road and collided with a tree. Peter was badly injured.
Peter commenced a civil action against Deborah in West Carolina court. His complaint alleges ordinary negligence. Deborah has moved to dismiss under the East Carolina guest statute. According to the statute, "a voluntary non-paying passenger shall not recover for injuries sustained as a result of the negligent operation of any motor vehicle, except in cases of reckless and wanton misconduct." The East Carolina courts have explained that the purpose of the statute is to discourage ingratitude and to deter collusive claims against insurance companies. West Carolina has no guest statute.
East Carolina follows the First Restatement. West Carolina follows interest analysis. Peter argues against dismissal, insisting that East Carolina would not apply its statute under these facts.
You are clerking for the judge in West Carolina who asks how to rule on the motion to dismiss. Please advise.
5. Terry and Berry, two friends of the same sex domiciled in the country of Romanzia, decided to get married. The law of Romanzia permits same sex marriages.
Because Terry and Berry were fans of William Faulkner, they decided to get married on the grounds of Faulkner's home in Oxford, Mississippi. The ceremony was performed at sunrise by a minister in accordance with the rites of the Great Sunshine Religion.
While staying in Oxford for the wedding, Terry bought four acres of land located in Mississippi.
Two weeks after the marriage ceremony, Terry and Berry returned to Romanzia. Three weeks later, Terry died in Romanzia of natural causes.
As Terry lay dying, Terry wrote a note, "I leave all my property to Berry." Assume the note satisfies the requirements for a valid holographic will under the law of Mississippi but not under the law of Romanzia.
Romanzia follows the First Restatement approach to choice of law. Please explain whether Romanzia courts 1) will recognize the marriage between Terry and Berry as valid and 2) will recognize Berry as the rightful owner of the land located in Mississippi.
6. Dennis's car was involved in a hit and run accident in which Preston was badly injured. Preston sued Dennis, and Dennis raised the defense that his car had been stolen and that he was not responsible for injuries caused by an unauthorized driver.
Dennis fully litigated the issue of whether the tortious driver was authorized to use the car. He introduced evidence including his own testimony and a police report showing that the car had been stolen. But Preston challenged the evidence and pointed out that Dennis first reported the alleged theft to the police one hour after the accident. The jury returned a verdict for Preston, and the judgment on the verdict was affirmed on appeal.
Dennis had a liability insurance policy at the time of the accident. Under the terms of the insurance policy, the insurance company is not responsible for damages caused by unauthorized drivers, and the insurance company has accordingly refused Dennis's demand that it pay him the amount he owes Preston for the judgment.
Dennis commences a civil action against the insurance company seeking a declaratory judgment that the company is obligated under the policy to pay the amount of damages recovered against him. He has moved for summary judgment, attaching a certified copy of the complaint and judgment in the case of Preston v. Dennis.
You work in the legal department of the insurance company. Please advise your client and explain whether it should settle this case and pay the amount of damages recovered against Dennis.
7. State X has enacted the Foreign Investment Freedom Act. The purpose of the act, in the words of Representative Nonuthinck, is "to stop foreigners from buying up the state." The act requires all nonresident corporations to file a petition with the state X secretary of state's office before buying any property in state X. The petition requires a "filing fee" of one thousand dollars. The Act authorizes the secretary of state to deny any petition based on the secretary's "good business judgment." The Act also authorizes the secretary of state to impose additional costs on foreign investors "in order to foster parity with domestic businesses."
Big Corporation, incorporated under the laws of Delaware with its principal place of business in Hartford, Connecticut, has commenced a civil action in state court in state X, alleging that the burdens imposed under the Foreign Investment Freedom Act violate the Privileges and Immunities Clause of the United States Constitution. The attorney general for state X asks your expert opinion. Please advise.
8. In 2004, Pat was injured in East Tennessee by a truck operated by Big Trucking Corp when the truck failed to stop for a red light and struck Pat as she began to walk across the street. Although the truck driver was in violation of safety laws and also negligent, Pat concedes that she, too, was partly responsible because even though she had a green walk light, she should have looked for oncoming traffic.
Big Trucking Corp. is an East Tennessee corporation that is engaged in continuous and systematic commercial activities in the 49 states in North America. At the time of the accident Pat was a citizen and resident of East Tennessee.
In 2005 Pat fell in love with a resident of Mississippi, got married and moved to Mississippi. After moving to Mississippi, she commenced a personal injury action against Big Trucking Corp. in Mississippi state court.
East Tennessee follows the doctrine of contributory negligence, and a recent case from the East Tennessee Supreme Court applied the doctrine to bar recovery by a pedestrian who had the right-of-way who failed to stop, look, and listen before entering the cross walk.
Should the Mississippi court apply East Tennessee or Mississippi law in this case? Please explain.
9. What choice of law rules apply in an action against the United States government under the Federal Torts Claim Act?
PART II. ANALYTIC ESSAYS (60 minutes)
Instructions. Write a coherent, literate essay in the Blue Book that respond to the following problem.
The Case of the Reckless Romantic Repudiator
Romeo Kaltfuss, a citizen of the country of Narnia, fell in love with Juliet Goodheart, a citizen of the country of Lilliput. In anticipation of the marriage, the two co-authored and signed a written premarital agreement at Juliet's apartment in Lilliput. The agreement provided that each person agreed to marry the other within one year. It further provided that if either party refused to complete the marriage, he or she would pay to the other the sum of one hundred thousand United States dollars.
The contract provided in clause 8: "This contract shall be construed according to the law of Narnia, and all disputes arising under this contract shall be governed by the law of Narnia."
After both parties signed the contract, Romeo kissed Juliet and gave her a diamond engagement ring. Delivery occurred in Juliet's apartment in Lilliput.
The next day, Romeo returned to Narnia. For three weeks he did not communicate with Juliet. Finally, Juliet sent him and email, "Where are you, Romeo?"
He replied: "I have met someone else and changed my mind about the marriage. Sorry. Please return ring."
According to the law of Lilliput, damages that are stipulated in contracts are enforceable so long as they are reasonable, and Lilliput courts have permitted the recovery of stipulated damages for breach of promises to marry when the damages "serve to compensate the aggrieved party for public humiliation or damage to reputation." In contrast, under the law of Narnia, stipulated damages are never permissible when their purpose is to enforce compliance. Moreover, Narnia courts have declared that no damages are recoverable for breaches of promises to marry because enforcing such contracts violates a Narnian policy against creating financial incentives to marry.
Under the law of Lilliput, the gift of an engagement ring establishes an absolute transfer of all property rights. Under the law of Narnia, such a gift establishes a conditional gift that is revoked upon the termination of the engagement for any reason.
Lilliput follows the Restatement Second approach to choice of laws. Narnia follows the First Restatement.
Please evaluate the consequences of attempting to enforce the premarital contract and contesting ownership of the ring in Lilliput and Narnia.