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.

[1] The facts are stolen from H. Rider Haggard, She: The Story of Adventure (1887).