Conflict of Laws M.H.
Hoffheimer
Final Exam University
of Mississippi
School
of Law
Spring
2009
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. Paul, a citizen of Mississippi, got an email
offering him a summer job working for a beach bingo parlor in the country of
Isla Bobos. The beach bingo parlor was
operated by Donald, also a citizen of Mississippi.
Donald and Paul reached a preliminary understanding
about the summer job, and Donald sent Paul a proposed written contract. Donald mailed the proposed contract from his
bingo parlor in Isla Bobos. Paul signed
the contract and returned it to Donald by mail. Paul signed the contract at his home in
Mississippi and mailed it from a post office in Jackson, Mississippi. After Donald received the signed papers, he
signed them and sent Paul a copy of the papers bearing both parties’
signatures.
The terms of the employment agreement provided that
Paul would earn $12.00 per hour in U.S. dollars. It also provided that “all disputes under
this contract will be governed by the law of Mississippi.”
Two weeks after Paul began his summer job, Donald got
mad and fired him.
Assume that under the law of Mississippi, the contract
created an at-will employment relationship that could be terminated by the
employer at any time. In contrast, under
the law of Isla Bobos, all employment contracts are for a minimum of three
months unless they expressly alter the terms of employment in writing. Moreover, an employer cannot terminate an
employee without cause. And even with
cause, an employer must provide one week’s written notice prior to termination.
Paul has learned about the employment law of Isla
Bobos and has consulted you for advice.
He wants to know if his termination was in breach of the employment
agreement and whether he may be able to recover damages for the three months’
employment to which he might be entitled under Isla Bobos law.
Isla Bobos follows the First Restatement. Please explain what law would govern a
breach of contract action commenced in Mississippi and in Isla Bobos?
2. Same
facts. The contract contains a clause:
“Any litigation to enforce rights created under this agreement must be brought
within twelve months of the events alleged to give rise to the claim and not
later.” Under the employment law of Isla
Bobos a contractual provision requiring that claims be litigated within a
certain period of time is valid and enforceable.
Explain whether there will be valid defenses under
this suit clause if an action is commenced in Mississippi or Isla Bobos?
3. Leo, a citizen
of England, is shipwrecked on the coast of Africa and taken to the sovereign
kingdom of Kôr. He is
greeted in Kôr by a young woman, Ustane, who kisses him on the
lips. Leo returns the kiss. Under the law of Kôr, an
exchange of kisses gives rise to a valid marriage.[1] Under the law of England,
no marriage would arise under these circumstances, and it would be contrary to English
public policy to permit marriages to arise without a party being aware of the
fact. Explain whether Leo and Ustane
married under the rules of the First Restatement.
4. Hercules and
Ajax got into a fight at a tavern in the country of Thebes. The local police department responded and
created an official report of the incident.
The report includes statements by witnesses interviewed by the
police.
Hercules is a citizen of Thebes, and Ajax is a citizen
of country of Sparta. Hercules sues Ajax
in Thebes for assault and battery. Ajax
sues Hercules in Sparta for assault and battery.
Under the evidence law of Sparta, the police report is
admissible as evidence at trial. In
contrast, under the law of Thebes, the police report is not admissible because
it is hearsay. Thebes follows the First
Restatement. Sparta follows the Second
Restatement.
Explain how the trial judges in Thebes and Sparta will
rule on objections to the admission of the police report.
5. Dubledorf and Terry, two men living in
Philadelphia, Mississippi, decided to get married to each other. They went on a vacation to the country of
Romanzia where they went through a marriage ceremony at All Souls Church. Romanzia law permits people of the same sex
to marry. After returning to
Mississippi, the two men come to you for legal advice. They are considering moving to Romanzia.
Dubledorf and Terry ask whether they are legally
married in Mississippi and whether they will be legally married in Romanzia if
they move there. Romanzia follows the
First Restatement. Please advise.
6. Tom Totman was born, lived and died in the
town of Belzona, Mississippi. One month
before he died, he executed a will subscribed by two witnesses. The will bequeathed all his personal property
to the Choir of Angels Church. It
devised his house and catfish farm to his nurse Robi Cratchett. The will’s final clause provided, “I leave
the rest residue and remainder of my estate to the Animal Shelter.”
After executing the will,
Totman lost consciousness. He lived for
one year without recovering consciousness.
During that year, he inherited land located in two places, Blackacre
located in Lafayette county, Mississippi, and Blueacre located in the country
of Tradizione.
Totman’s will is valid under
Mississippi law. But the civil code of
Tradizione requires that a valid will must be witnessed by three
witnesses. Tradizione does not have a
will borrowing statute.
Sara, the daughter of
Totman’s deceased uncle, is Totman’s closest living relative and would be his
heir under the law of Mississippi. Under
the law of Tradizione, male relatives take precedence over female, and the heir
entitled to Blueacre under Tradizione law,
in the absence of a valid will, would be Harry, the grandson of Totman’s
uncle.
Who gets Blackacre and
Blueacre and why?
7. Bob Beyer bought forty shares of stock in
the Acme Finance Corporation. Beyer
lives in Alabama and bought the shares through Agnes Agent, a stock broker who
lives and works in Alabama. Agnes
induced Beyer to buy the shares by showing him statements and other material in
Alabama that described the financial condition of the corporation.
Two days after purchasing
the stock, the value of the stock declined by two-thirds. Beyer wants to inspect the books and records
of the corporation to determine if the financial descriptions were accurate.
The corporation is
incorporated under the law of Delaware.
Its principal place of business is in New York City.
Assume that the corporation
law of Alabama and New York permit a shareholder to inspect the books and
records of the corporation but Delaware law does not. What law will apply to Beyer’s access to the
corporate books and records and why?
8. You are interviewing for a judicial clerkship
position with United States Magistrate Judge Davis. He takes you out to lunch. While you are passing him the barbeque sauce,
he asks, “What is the better rule of law approach to choice of law, and do
federal courts ever apply it?” Please answer
the judge’s question.
9. Mississippi
State Senator Varner has grown angry about the quantity of asbestos lawsuits
that have been brought in Mississippi that have nothing to do with the
state. He introduces the following bill:
No claim for personal injury, property damage or other
legal relief shall be brought in the courts of Mississippi for any claim
alleging defective product or negligence where the damage is alleged to result
from exposure to asbestos unless the acts or events causing the alleged injury
have occurred in the state of Mississippi.
You are on the legislative committee assigned to
review the bill. Please identify any
possible problems with it.
PART
II. ANALYTIC ESSAY (60 minutes total)
Instructions. Write a coherent, literate essay
in the Blue Book that responds to the following problem.
The Case of the Reckless Reader Wreck (60 minutes)
Pierre Passenger and Danielle Driver, citizens of the state of Tradition,
visit New York City to see the sights.
There they rent a car. While Driver
is driving, she transmits a text message on her cell phone. As a result she does not see a large truck
parked in her lane of traffic and collides with it. Passenger is injured in the collision as is
Tom T. Trukker, the operator of the truck and a New York domiciliary.
Trukker had stopped the truck in order to call his
girlfriend on his cellphone. He had not
activated the truck’s brake lights or its emergency flashers in violation of a
City traffic ordinance.
The state of Tradition
retains the traditional rule of contributory negligence under which any
negligence by a plaintiff will bar recovery.
Tradition also has a guest statute that bars all claims for civil
liability by passengers against drivers.
New York has a form of comparative negligence under which a plaintiff’s
fault will reduce but not bar recovery, and New York has no guest statute. Tradition follows the First Restatement.
At the time of the accident
Pierre had already accepted a new job in East Carolina and had decided to move
to that state. One month after the
accident, Pierre moves to the state of East Carolina. East Carolina has no guest statute and has
adopted comparative negligence. East
Carolina has enacted a statute that prohibits sending or receiving text
messages while driving. The statute
imposes strict liability on drivers for all damages resulting from injuries
they cause while sending or receiving text messages. East Carolina courts follow the interest
analysis approach to choice of law problems.
Three and one-half years
have elapsed since the collision. Assume
that the New York statute of limitations for personal injury claims is three
years, the Tradition statute of limitations is four years, and the East
Carolina statute of limitations is two years. Driver
and Trukker are insured by the same insurance company, BigInsCo. BigInsCo has retained you to evaluate
potential liability in this case. Write
your client a memorandum that explains separately what law would apply if
Passenger and Trukker commence tort actions in New York, Tradition and East
Carolina. Analyze for each jurisdiction:
1) the law governing the claims, specifically whether the East Carolina statute
prohibiting text messaging supports Passenger’s or Trukker’s claims against
Driver and whether the city ordinance requiring brake lights or flashers
supports Passenger’s claim against Trukker; 2) the law governing Driver’s defense
to Trukker’s claim, specifically whether Trukker’s claim is barred by contributory
negligence or possibly reduced by comparative negligence; 3) the law governing
Driver’s defense to Passenger’s claim, specifically the applicability of the guest
statute; and 4) the law governing whether the action is time barred under the statutes
of limitations.