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.
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. The country of Patagonia in South America encourages Patagonian business and trade by directly investing in select Patagonian corporations and a few non-Patagonian corporations. The government of Patagonia owns 63 per cent of the shares of Banco Patagonia, a Patagonian corporation. The government of Patagonia also owns 49 per cent of Helicopteros Internacionales de Patagonia, a Patagonian corporation. Banco Patagonia owns 20 per cent of Helicopteros Internacionales de Patagonia.
Helicopteros operates a helicopter service with regular flights between Sonrisa, Patagonia's capital, and regional towns in Patagonia. It also occasionally operates flights between Patagonia and Biloxi, Mississippi.
Helicopteros Internacionales had a shortage of qualified pilots and decided to advertise in several United States markets, including Biloxi. Lamar Varner, an air force pilot stationed in Biloxi, responded to the Helicopteros Internacionales ad.
Varner's initial interviews took place in Mississippi. When Helicopteros Internacionales staff concluded that Varner was qualified, they invited him to fly him to Patagonia to meet the corporation's president. Varner agreed.
Varner was flown to Patagonia in one of Helicopteros Internacionales helicopters. When Varner entered the corporation's headquarters, he slipped on a loose rug, fell, and struck his back on a chair.
After signing an employment contract, Varner flew back to Biloxi. His back remained sore for several days, and he went to get a back massage. While his back was manipulated during the message, part of his backbone that was dislodged during the fall in Patagonia was pressed into his spinal cord causing permanent partial paralysis.
Varner commences a civil action against Helicopteros Internacionales
de Patagonia in circuit court in Biloxi. The Patagonian constitution provides
that all Patagonian corporations in which the country of Patagonia owns
more than 20 per cent of the shares are absolutely immune to civil liability.
Under Patagonian statutes injuries caused by such corporations must be
presented to the Patagonia Secretary of Compassion who may provide what
compensation she or he deems fair under the circumstances. Accordingly,
Patagonia moves to dismiss the Mississippi lawsuit. Rule on the motion
2. While Dan Debtor, citizen of Mississippi, was visiting Louisiana, he met Mary Trishess, a Louisiana citizen and a prostitute, at a bar. Debtor subsequently gave a check to Trishess payable to her order in the amount of $500 for services he expected her to perform in Louisiana. There is a dispute about whether Trishess performed those services, but there is no dispute that her contemplated performance included sexual acts and that the contract would thus be void as offensive to public policy in Mississippi.
After Debtor left the state, Trishess endorsed the check over to Craig Creditor. Creditor commenced a civil action in Louisiana state court against Debtor and served Debtor with process pursuant to a Louisiana long arm statute that establishes personal jurisdiction over nonresidents who enter into contracts in the state with Louisiana residents. Debtor did not respond to the summons and default judgment was entered against him in the Louisiana court.
Creditor has now commenced legal proceedings to satisfy the Louisiana judgment in Mississippi state court in the county where Debtor resides. Debtor moves to dismiss on the ground that the Louisiana judgment should not be enforced because it is contrary to a strong public policy of the forum. Rule on the motion and explain.
3. Explain whether a party may employ nonmutual collateral estoppel against the United States government.
4. Wilma and Hubert, both residents of Mississippi, were married in Tupelo in 1997. Their marriage soon deteriorated into a nightmare of substance abuse and violence. One child, Bethany, was born in 1998.
On June 12, 2000 Hubert returned home from drinking at a bar to find Bethany alone in the house, crying in her crib. Bethany said "Mommy went to get more beer." Before Wilma returned, Hubert packed some personal belongings, put Bethany in the car, and drove to Nashville, Tennessee.
Hubert decided to stay in Nashville permanently. He stopped drinking and got a good job. After he and Bethany had been living there for over one year, he petitioned for divorce in Tennessee state court and also asked the court to award him custody of Bethany.
Wilma, who had never been to Tennessee, was served by long arm. She did not respond, and the Tennessee court granted Hubert's request for a divorce and also granted him exclusive custody of Bethany.
After the divorce Hubert fell in live and married Madge, a Tennessee resident. The marriage was celebrated in Tennessee.
In April 2001 Wilma spied Hubert with Madge at the Double Decker festival in Oxford, Mississippi. Wilma promptly had Hubert arrested for criminal bigamy. While he was in jail she served him with process in a civil action commenced in Mississippi Chancery court seeking a divorce, alimony, and exclusive custody of Bethany.
Explain whether Hubert's Tennessee divorce provides a valid defense in the Mississippi bigamy prosecution.
5. Same facts. Hubert files a motion to dismiss Wilma's action for custody pursuant to 28 U.S.C. § 1738A (Full Faith and Credit Given to Child Custody Determinations) arguing that federal law prevents Mississippi from disregarding the custody determination of a sister state. Rule on the motion and explain.
6. Tom Testator died domiciled in the state of East Dakota owning land in West Dakota. Testator had grown up in West Dakota and had lived there most of his life, including when he drafted his will.
Testator's will provided, "I leave all my real property to my brothers and their heirs."
Under the law of West Dakota the language "to my brothers and their heirs" conveys a fee simple absolute to the brothers and conveys nothing to the brothers' heirs. Under the law of East Dakota this same language conveys a life estate to the brothers with remainder to their heirs.
Under the law of West Dakota the persons designated by the term "brothers" is a question of the testator's intent. West Dakota cases have generally concluded in the absence of other indications of intent that "brothers" means the persons known to be brothers by the person using the language. Cases have held that similar language conveyed an interest to a brother known to have existed but whom the grantor wrongly believed to have died. On the other hand, a West Dakota case held that a brother whose existence was never known would not take a share.
Under the law of East Dakota "brothers" has been construed as a matter of law to mean all offspring, known or unknown, by either parent of the testator. The relationship is severed only by legal adoption by another parent.
Testator's will is being probated in East Dakota. All Testator's known brothers are dead, but Sonny Prodigal has appeared whom Testator never knew was his brother. Prodigal has moved the court to declare that he owns the real property in West Dakota in fee simple absolute. Heirs of the other brothers oppose his motion. Rule and explain.
Instructions. Write coherent, literate essays in the Blue Book that respond to the following problems.
A. The Case of the Bad Seed (60 minutes)
Slip Kaufman, the son of a prominent Oregon binoculars salesman, lost over two million dollars over a three-month period by playing various on-line gambling games and by responding to Internet solicitations for investments in get-rich-quick schemes. As a result, Kaufman's family had him declared a spendthrift by an Oregon court. Under Oregon law, this means that all Kaufman's contracts, sales, and gifts are voidable.
Kaufman traveled to New Jersey to raise funds to develop a video display screen that projected three dimensional images. In New Jersey he borrowed $10000 from Jim Jerry, a New Jersey resident, and gave Jerry a promissory note.
Then Kaufman visited Mississippi where he induced Ms Ippy to lend him $5000 and executed a promissory note to Ippy.
Jerry and Ippy have learned that the notes will not be enforceable in Oregon because the court declare Kaufman a spendthrift. Assume that the local law of neither New Jersey nor Mississippi recognizes spendthrift defenses to claims on promissory notes.
Jerry and Ippy have learned of each other's claims through communications on the Internet. Jerry and Ippy are considering pooling their resources in efforts to collect the money due on their promissory notes and have consulted you. After a thorough discussion of actual and potential conflicts, the parties have knowingly agreed to your firm representing them jointly.
You have been assigned to research the option of commencing joint actions in either New Jersey or Mississippi. You have been asked to assume for the time being that both states would have personal jurisdiction and that both states have procedures that allow a joinder of the separate issues.
New Jersey follows interest analysis.
Evaluate separately 1) what law New Jersey would apply
to a) Jerry's claim and b) Ippy's claim; and 2) what law Mississippi courts
would apply to a) Jerry's claim and b) Ippy's claim.
B. The Case of the Busted Busman (60 minutes)
Allie was born and raised in Birmingham. She attended an Alabama college for one year and then decided to transfer to the University of Mississippi. In 1997 at age 20, she applied to the University of Mississippi. On her application she described herself as an Alabama resident. Allie was thrilled to be accepted by the University and enrolled in the fall of 1998 as a full-time student.
After Allie was accepted by the University, her father bought a condominium in Oxford, Mississippi, which he titled in Allie's name. Allie understood, however, that her father was the real owner of the property and that she held the legal title in trust for him.
As soon as Allie arrived in Mississippi she inquired about the process for becoming a resident for purposes of in-state tuition. A campus employee she talked to told her to wait a year. Allie is not sure where she wants to live after college, but she has obtained an Oxford city library card. She is not registered to vote. She has applied for a Mississippi homestead exemption for tax benefits on the Oxford condominium. Her car is licensed and insured in Alabama.
After moving to Oxford, Allie advertised for a roommate. She talked to several people who responded to her ad and chose Missy, a resident of Jackson, Mississippi, and a second-year student at the University of Mississippi. Allie and Missy became good friends, and in 1998 Allie invited Missy to go to Birmingham to celebrate Thanksgiving with Allie's family. Missy agreed, and the two roommates drove to Birmingham in Missy's car with Missy driving.
During the trip, after Missy got to Birmingham, she pulled off on an exit ramp and came to a stop at a stop sign. While she was waiting for a safe opportunity to drive forward, her car was struck from the rear by a Birmingham Community College bus transporting the band to a college athletic event.
As a result of the collision, Allie suffered actual personal injury damages in the amount of $50,000 and Missy suffered actual personal injury damages in the amount of $35,000. Missy's car, worth $4000, was destroyed. The Birmingham police investigated the collision and concluded that the bus driver was intoxicated. They charged him with various criminal violations, and he was convicted of several that required a finding of willful, malicious, and reckless conduct.
Assume that under Alabama law, the state of Alabama has a complete and absolute defense of sovereign immunity. Assume further that Alabama's statute of limitations for personal injuries and property damages is two years. Mississippi's statute of limitations for personal injury and property damages is three years. Alabama follows the First Restatement approach to choice of laws.
The collision occurred in the fall of 1998. In January 2001 Allie and Missy bring a civil action in Mississippi state court against the state of Alabama. Their first cause of action alleges negligence and seeks actual damages. Their second cause of action alleges willful, wanton, reckless, and criminal conduct and demands punitive damages in the amount of $50,000 for each plaintiff.
Assume for purposes of this question that the actual tortfeasor (the bus driver) is required to be joined under Alabama law in a claim for punitive damages against his principal but that such joinder is not required under the Mississippi rules of procedure.
The defendant has moved to dismiss asserting the defense
of sovereign immunity; in the alternative the defendant moves to dismiss
asserting the defense that the claims are time barred under the Alabama
statute of limitations; in the alternative the defendant moves to dismiss
for failure to join an indispensable party. Please rule on the motions