Conflict of Laws M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Spring 1994

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 denotes Restatement [first] of the Law of Conflict of Laws (1934). The term "state" denotes a state of the United States. The term "country" denotes 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 (recommended two hours 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. Define renvoi and give an example of it.

2. You are working for a partner in the Jackson, Mississippi firm of Whitney & Houston. He sits down to tell you about a personal injury case he needs some research on. The case is pending in Mississippi and has facts that may present choice of law issues. The partner remarks, "At least we do not have to worry about renvoi any more, do we?" Please respond.

3. You are working for Perry Gay, a state legislator in Hawaii, who wants to introduce legislation that recognizes and gives legal effect to marriages between persons of the same sex. He wants to know whether, if such marriages were performed lawfully in Hawaii and recognized as valid under the law of Hawaii, all other states would have to recognize such marriages? Please advise.

4. Same facts. Gay also wants to know whether it would be possible to enact a federal statute that would require other states to recognize Hawaii's homosexual marriages. He has asked someone else to research whether Congress has authority under the fourteenth amendment to adopt such legislation, so do not consider equal protection or due process. But please advise Mr. Gay about other possible sources of constitutional authority for Congress to enact such legislation and make it binding on state courts. Please also mention any relevant constitutional authority that might limit Congress's power to adopt such legislation.

5. Assume that the state of Nevada has legalized prostitution so that debts incurred while purchasing sexual acts are valid and enforceable under Nevada law.

Dave, citizen of Mississippi, goes on a business trip to Nevada. While in Nevada, he agrees to purchase the services of Pam, a resident of Nevada and a professional prostitute. He writes a check payable to the order of Pam in the amount of $100.00 and gives her the check in Nevada. After receiving the check, she performs sexual acts (in Nevada). These acts, lawful in Nevada, would have been criminal if perfomed for money in Mississippi.

Assume that prostitution and agreements to perform acts of prostitution are criminal acts in Mississippi. Assume further that the agreements for such acts are unenforceable, illegal contracts under Mississippi law, because the conduct is criminal.

When Dave returns to Mississippi, he cancels payment on the check. Pam comes to Mississippi and commences a civil action against Dave in a Mississippi state court for breach of contract. Dave raises the defense of illegality and moves for summary judgment.

Rule on the motion and explain.

6. Same facts as the last question. Assume that the trial court (rightly or wrongly) grants the motion for summary judgment for Dave. Pam allows the judgment to become final under Mississippi law and fails to file a notice of appeal. Instead she commences a second civil action against Dave in Nevada state court. Dave moves to dismiss on grounds that the Mississippi judgment must be given res judicata effect. Pam argues that Mississippi judgment is not entitled to such effect because Mississippi disregarded its full faith and credit obligations to Nevada. Rule on Dave's motion and explain.

7. Same facts as the last question. Assume that the Nevada trial court (rightly or wrongly) denies Dave's motion to dismiss and the case goes to trial, resulting in a judgment for the plaintiff in the amount of $100.00. Dave does not appeal. But when Pam comes back to Mississippi and attempts to execute her judgment on Dave's property (his mobile home), he appears and collaterally attacks the judgment, arguing that the Mississippi courts should not enforce it. Rule on his motion to dismiss the writ of execution and explain.

8. Pat Paterson, a resident of the state of East Virginia, purchased a car from Dobberman Car Sales Corporation, an East Virginia corporation with its principal place of business in East Virginia. Although Dobberman's salesman knew that the brakes on the car needed to be replaced, he assured Paterson that the brakes were new and that the car was completely safe.

Paterson drove the car to New York, where the brakes failed. Paterson smashed into a wall, injuring himself.

Assume that New York does not allow punitive damages for fraud under these circumstances but that East Virginia recognizes punitive damages for fraud. Assume further that New York adopts an interest analysis approach to conflicts problems, while East Virginia adheres to the First Restatement approach to choice of law problems.

Paterson commences a civil action for fraud against Dobberman in East Virginia state court. Paterson's complaint demands compensatory and punitive damages. Dobberman moves to strike the demand for punitive damages. Rule on the motion and explain.

9. Casey runs a grocery store in Vaughan, Mississippi. He calls Jones, Inc., a roach exterminating service in Memphis, Tennessee. Casey, speaking on the phone in Mississippi, asks Jones to provide exterminating services every month for 13 months at his grocery store. Jones, speaking on the phone in Tennessee, agrees. Casey pays in full for the services, but Jones stops providing the services after 6 months.

Assume that the contract is within the Tennessee statute of frauds (which requires contracts that cannot be performed within 12 months to be in writing), and assume that the agreement is not taken out of the Tennessee statute of frauds by part performance. Assume, however, that the contract is not within the Mississippi statute (which applies only to contracts that cannot be performed within 15 months).

Tennessee follows the First Restatement.

Explain whether Casey has a cause of action for breach (that can survive a statute of frauds defense) in Mississippi. Explain whether Casey has a cause of action for breach (that can survive a statute of frauds defense) in Tennessee.

10. In February 1990, during a Tigers Convention in the country of Lilliput, Drake, resident of the country of Lilliput got drunk and beat up both Petrovich, a resident of Lilliput, and Paul, a resident of Mississippi. Petrovich and Paul commence an action in Mississippi against Drake in March 1991 for intentional torts. Assume that at the time the action is commenced, the statutes of limitations have expired under the law of Lilliput for all relevant torts but that Mississippi's statutes have not yet run for all claims. Drake moves to dismiss Petrovich's and Paul's actions on the ground that they are time barred under the law of Lilliput. Rule on the motions and explain.

11. Abram was a resident of the state of Confusion. In 1990 Abram executed a holographic will (a signed will written out in the testator's handwriting) in the state of Confusion under which he devised and bequeathed all his real and personal property to Charlie.

Bannister was a resident of Mississippi. In 1989 he traveled to the state of Confusion where he executed a holographic will which bequeathed and devised all his real and personal property to Dogget.

Assume that holographic wills are valid in Mississippi but not valid in the state of Confusion.

Karl is Abram's heir and next of kin and will take in the event Abram's will is invalid. Hunter is Bannister's heir and next of kin and will take in the event Bannister's will is invalid.

Abram died owning Redacre, real property in Confusion, Blueacre, real property in Confusion, an authentic antique Woozleback chair, located in Confusion, and Mississippi Stud, a valuable race horse located in Mississippi.

Bannister died owning Greenacre, real property in Confusion, Yellowacre, real property located in Mississippi, a Steinway grand piano located in Confusion, and a valuable manuscript written by Mozart located in Mississippi.

Confusion follows the First Restatement and has no borrowing statute.

If the disputes are lititgated in Mississippi, who gets what and why?

12. Yolanda, a citizen of Ohio owns Blackacre, real property situated in Mexico. In a lawsuit in Ohio, the value of Blackacre is placed in issue. Yolanda takes the stand to testify and offers an opinion that the property is worth $400,000. The defendant moves to strike the opinion.

Assume that under the law of Ohio an owner of real property is qualified to give an opinion as to the value of the property. Assume that under the law of Mexico, such testimony of property value may be offered only by a properly qualified expert.

Assume that Ohio follows the Restatement Second approach to conflicts. Rule on the motion to strike and explain.

PART II. ANALYTIC ESSAY (recommended one hour for this part)

Instructions. Write a coherent literate essay in the Blue Book that responds to the following problem.

The Case of Hammerhead Shark (one hour recommended)

Ms. Phillipa Phillipson, citizen of Mississippi, drove to Memphis to do some shopping. In the Maple Court Mall, Walter Shark, a complete stranger, approached her and struck her on the head with a hammer, causing damages. Shark was arrested, prosecuted, and found not guilty by reason of insanity. It turns out that Shark, a citizen of Arkansas, had escaped from a United States government hospital in Arkansas, where he had been confined for psychiatric treatment.

Ms. Phillipson wants to commence a civil action in federal court against the United States government for negligence based on the theory that its hospital employees were negligent in allowing a dangerous patient to escape. She also wants to commence a civil action in federal court in Arkansas against Shark for assault and battery.

Assume that Arkansas state law does not recognize the liability of hospitals to persons injured by escaped patients. Assume that Tennessee and Mississippi recognize such liability where the escape was caused by the negligence of hospital employees.

Assume that under the law of Tennessee insane persons are not liable for their intentional torts. Assume that under the law of Mississippi insane persons are liable for their intentional torts and are also liable for punitive damages. Assume that under the law of Arkansas insane persons are liable for the intentional torts but their liability is limited to compensatory damages.

Assume that Arkansas follows the Better Law approach for torts cases and Tennessee follows the First Restatement.

1. Ms. Phillipson asks whether she has a claim against Shark anywhere, or whether the verdict of not guilty bars her civil action.

2. She asks whether the determination that Shark was insane can be used against the government, and whether that finding may be used against her.

3. She asks whether she has a claim against the government anywhere.

4. She asks what law the state court of Tennessee would apply in a lawsuit against Shark with respect to the issues of liability and damages.

5. She asks what law the state court of Arkansas would apply in a lawsuit against Shark with respect to the issues of liability and damages.

6. She asks what law the state court of Mississippi would apply in a lawsuit against Shark with respect to the issues of liability and damages.

7. She asks whether it will make any difference if her action is filed in or removed to a federal court.

8. She asks whether a different law will be applied in her action against Shark if it is transferred from one federal court to another under § 1404(a).

Please answer each question (by number) and explain fully.