Conflict of Laws                  M.H. Hoffheimer

Final Exam                        University of Mississippi                                  Law School

                                  Spring 2007

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 (60 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. Pat and Pete were driving in the state of East Carolina. When they stopped for a stop sign, they were struck from the rear by a truck driven by Dodge. Pat is a citizen of Mississippi, Pete is a citizen of the country of Tralfamadore, and Dodge is a citizen of East Carolina.

    Two and one half years after the accident, Pate and Pete commenced a civil action against Dodge in federal district court for the Northern District of Mississippi. The applicable Mississippi statute of limitations for personal injury actions is three years, but the applicable statute of limitations in East Carolina is two years.

    Dodge has come to you for advice and wants to know what law the federal court will apply and if the claims are time barred under applicable statutes of limitations. Please explain.

    2. The state of West Carolina legislature has become greatly concerned about the amount of traffic caused by drivers seeking to obtain lower gas prices. Legislative studies have proven that a number of accidents and fatalities are attributable to the extra driving. Moreover, the driving is consuming natural resources and contributing to carbon emissions. Accordingly, the legislature has proposed imposing certain price limits. It also proposes to prevent retail sellers who own gas stations both inside and outside the state from lowering prices in neighboring states, as such lower prices would encourage more traffic. The proposed statute reads as follows:

The owner of any retail gas station located in the state of West Carolina shall not sell gasoline at any location outside the state and within 100 miles of the state at a price lower than the price it charges in the state of West Carolina.

You are interning for a member of the state legislature who asks whether there is any problem with this proposed statute. Please advise. Assume that there is no federal legislation on point.

    3. Daniella called Paul, a public figure, a lying son of a duck, in a newspaper in England. After she failed to apologize, Paul sued Daniela for libel in England and eventually recovered a judgment in the amount of one million dollars.

    Paul attempted to enforce the judgment in California. He filed an action on the English judgment in California. He claims that he got in hand service of process on Daniela in California but she denies ever setting foot in the state of California and has never had any other connection with that state. Paul got a default judgment in California when Daniela failed to appear and defend.

    Paul has now commenced a civil action in the state of Alabama against Daniella. The action states two causes of action, one based on the English judgment and one on the New Hampshire default judgment.

    Daniella currently resides in Alabama. She has come to you for advice and wants to know if she has good defenses to the lawsuit. Please advise.

    4. A bus owned and operated by Alabama State University, an agency or instrumentality of the state of Alabama, drove through Tennessee on the way to a school sporting event. In Tennessee, Betsy Driver, the bus driver, an employee of Alabama State, negligently injured, Micah, a citizen of Mississippi.

    Micah has commenced a civil action against the state of Alabama in federal district court for the Northern District of Mississippi. The state of Alabama has retained you as a lawyer and wants to know if there are grounds for dismissing the pending action. Please advise.

    5. The Alabama Insurance Commissioner has issued a regulation that requires all insurance companies to make flood insurance available at a certain price. In a separate regulation, the Alabama Insurance Commissioner has directed that the requirement not be applied to insurance companies that are incorporated under the law of Alabama.

    The commissioner explained that the purpose of waiving the regulation's application to domestic insurance companies was "to give the domestic insurance companies a competitive advantage against larger out-of-state companies."

    Biginsco, a corporation incorporated in Delaware with its principal place of business in New Jersey, has commenced a civil action in Alabama state court seeking a declaratory judgment that the regulation is invalid because its exclusive application to out-of-state corporations violates the equal protection and privileges and immunities clauses of the constitution.

    You are the judge. Rule on the motion and explain.

    6. Richard Tator, a citizen of the state of West Dakota, went to his lawyer and explained that he wanted to devise all his real property to his son Sonny. The lawyer determined that Tator wanted to convey the property in fee simple, and did not want to create any future interests. In accordance with the law of West Dakota, the lawyer drafted language in the will that provided: "I devise all my real property wherever located to my son Sonny."

    Sonny signed the will before two witnesses in the state oif West Dakota, and the witnesses also signed, in conformity with the law of that state.

    Two years later Tator died domiciled in West Dakota. At the time of his death, he owned two pieces of real property, Blackacre, located in the state of East Dakota, and Whiteacre, located in the country of Tralfamadore.

    Under the law of East Dakota, the language of "to my son Sonny" conveys only a life estate as a matter of law and regardless of the intent of the testator. Under the law of Tralfamadore, a will must be executed in the presence of three witnesses. Moreover, under the law of Tralfamadore, sons only inherit land in the absence of a valid will if there are not daughters. Tator is survived by a daughter, Sissy.

    All jurisdictions follow the Restatement First. None has a wills borrowing statute.

    Sonny has come to you for advice, asking what property interest he has in Blackacre and Whiteacre. Please explain.

PART II. ANALYTIC ESSAYS (two hours)

    Instructions. Write coherent, literate essays in the Blue Book that respond to the following problems.

A. The Case of the Contractual Confusion (one hour)

    Pam and Dot, citizens of state A, decided to open an event planning business. They discussed and agreed on the details in state A. Pam agreed to contribute money and Dot agreed to work full time for the business. They would share the profits.

    Pam and Dot then visited a lawyer friend in nearby state B to reduce their partnership agreement to writing. After explaining possible conflicts of interest, the lawyer drafted a contract. The contract provided that Pam would contribute the initial capital and Dot would work "full-time and devote her best efforts to the business."

    The contract provided that in the event of a breach, neither party would be limited to punitive damages.

    The contract incorporated a forum-selection clause: "All disputes arising out of this contract must be litigated in a state or federal court located in state B." It also incorporated a choice of law provision: "This contract shall be construed and governed by the law of state C." It chose the law of state C because that choice was contained in the law firm's standard form contract due to the fact that the law firm's main office was in state C. The parties and agreement had no other relationship to state C.

    Pam and Dot read the contract and signed it in the lawyers office.

    After two years, problems developed. Dot moved 50 miles away from the location of the business office in state A to buy a home in state B. She commuted to state A and worked 40 hours per week, but that was less time than she previously devoted to the business. To help out, Dot hired a part-time employee, Wendy, a resident of state A to open the office and answer phones.

    Dot viewed Wendy's salary as a necessary business expense, but Pam sees Wendy as performing Dot's duties. Pam thinks Wendy's wages should be deducted from Dot's share of the profits.

    A dispute also arose concerning Dot's occasional work as marketing representative for Wildwood Country Club in state B. Dot earns a commission from the club by referring customers to them for their banquet facilities. Dot sees this as a second job, but Pam believes her work for the club competes with the partnership's business.

    Pam has commenced a civil action in state A court against Dot. Her complaint alleges breach of contract for Dot's violation of her agreement to work full-time and devote best efforts to the business; it also alleges breach of fiduciary duties for Dot's competing work for the country club. The complaint demands actual and punitive damages.

    Filed with the complaint is a motion for summary judgment. The motion is supported by an affidavit by Wendy. [Wendy is a convicted felon.]

    The laws are in conflict on several key points. First, state A case law holds that 40 hours of labor satisfies an obligation to work full-time and provide best efforts. Under the law of states B and C, this is a matter of fact for the jury. Second, under the law of states B and C a waiver of punitive damages is ineffective, but under the law of state A such a waiver is effective. Third, under the law of state B, a convicted felon can neither testify nor submit an affidavit, in states A and C a felon is a competent witness and may submit affidavits.

    State A follows the Restatement Second approach to choice of laws; state B follows the rules of the First Restatement; and state C follows interest analysis.

    Dot has come to you for advice. Please write an opinion letter that addresses the following matters: 1) What law will state A apply to the issues of a) sufficiency of performance, b) punitive damages, and c) a witness's competence? 2) Is the forum selection clause enforceable? 3) Would a change of forum benefit your client? 4) Would it make a difference whether you move to enforce the forum-selection clause in state A court by moving to dismiss or first remove the action to federal court and then move to transfer under section 1404(a)?

[Material in brackets added after exam and did not affect grading.]

B. The Case of the Bad Date (one hour)

    Romeo and Juliet lived and worked together in the state of Bliss. One day they decided to drive to the neighboring state of Confusion to have dinner and see a movie.

    Juliet drove her car and Romeo sat in the front passenger seat. As the car approached the state line, Romeo leaned over and kissed Juliet. The kiss occurred in the state of Bliss.

    Romeo had never kissed Juliet before, and she was so startled by the unexpected romantic gesture that she lost control of the car. The car veered off the road and collided with a brick wall. The point of impact occurred inside the state of Confusion.

    As a result of the impact the car was disabled and Romeo lost consciousness and suffered a cut to his hand. When Juliet saw the blood she panicked. Vaguely remembering something from Girl Scouts, Juliet removed Romeo's belt and wrapped it as tightly as she could around his arm above the bleeding hand. Then she waited for help. She was concerned that the arm began to turn a funny color but did not know what else to do.

    When state police rescued Romeo and Juliet, the police immediately removed the belt and applied a band aid, which stopped the bleeding. Romeo recovered consciousness, and no additional treatment was required. Medical experts later explained that the application of the tourniquet and the continuing failure to remove it were negligent. The tourniquet caused some permanent damage to Romeo's arm.

    The state of Bliss has a guest statute that provides a defense in negligence actions by passengers against drivers who transport them without compensation. The state of Confusion has no guest statute. The state of Bliss also has a Good Samaritan statute that provides a defense for persons who negligently cause injury in the course of providing emergency medical help in good faith. The purpose of the statute is to remove disincentives that might prevent people from trying to help others in need. The state of Confusion legislature has refused to enact a Good Samaritan statute, and Confusion courts have refused to recognize the defense because they fear it may increase injuries by encouraging harmful acts.

    The state of Bliss has adopted comparative negligence. But the state of Confusion retains contributory negligence. You may assume for purposes of your answer that the kiss provides evidence of contributory negligence.

    Romeo has consulted you about possibly pursuing a negligence claims in connection with the accident and in connection with the negligent medical treatment.

    The state of Bliss follows the traditional territorial rules of the First Restatement. The state of Confusion has adopted Comparative Impairment.

    Please evaluate how each jurisdiction would treat defenses under the guest statute, Good Samaritan statute, and contributory negligence.