SCORING: This exam has four (4) pages, including this cover
sheet. The total number of questions is nine (9). The total number of
points for this exam is 100. Each question will indicate how many
points it is worth. Pace accordingly.
RULES: This is a limited open book exam. Commercial outlines,
hornbooks, treatises etc. are not permitted in the examination. You may
not access the internet for this examination. You may bring into the
examination only the following materials:
1) All materials assigned in this course, that is:
a) Currie, Kay & Kramer, Conflict of Laws (6th ed. 2001)
b) Reading materials for the course that were available off of
Blackboard.
2) Any outline made by you or by a study group within which you
participated.
3) Your class notes.
Your exam (with this cover) must be returned with your answers.
Contact me if you perceive an ambiguity or error in a question. Should
you feel ill or panicky in anyway, please immediately see Dean Jackson
in room 107.
The choice-of-law approaches of the states mentioned in this exam
should be assumed to be as follows:
Virginia First Restatement
New York Interest analysis as
modified by the Neumeier rules
California Interest analysis with
Baxter’s comparative impairment approach as a resolution of true
conflicts
Wisconsin Leflar’s
choice-influencing considerations approach
Michigan Interest analysis with a
lex fori approach to true conflicts, that is, a resolution of true
conflicts in favor of Michigan law if Michigan has an interest
Illinois Second
Restatement
New Jersey Second Restatement
1. Plaintiff (a domiciliary of California) and Driver
(a domiciliary of Michigan) got into a car accident in New York. Driver
has automobile insurance through Insurer (incorporated in and having
its principal place of business in Virginia). Driver and Insurer
entered into their automobile insurance contract in Michigan. Plaintiff
has chosen to bring her negligence action for damages from the accident
in Virginia State Court as a “direct action” – that is, as an action
against Insurer directly for damages coverable under Insurer’s
insurance contract with Driver. Virginia and Michigan law allow direct
actions. New York and California law do not. Briefly give any plausible
reasons the Virginia state court might allow the direct action and any
plausible reasons it might not allow it. Do not address constitutional
restrictions on choice of law. [8 points – ca. 14 minutes]
2. Plaintiff (a domiciliary of California) sues
Defendant (a domiciliary of Virginia) in Virginia state court for
damages from Defendant’s negligence in a car accident between the two
in Wisconsin. California has no cap on damages for negligence. A
Virginia statute states: “Damages for negligence under Virginia law may
not exceed $25,000.” A Wisconsin statute states: “A court may not
reward damages in excess of $25,000 for negligence.” The jury awards
Plaintiff $50,000 in damages and the Virginia state court uphold the
award. How can this result be justified? Do not address constitutional
restrictions on choice of law. [6 points – ca. 11 minutes]
3. Plaintiff (a New Jersey domiciliary) got into a
car accident with Defendant (a New Jersey domiciliary) in Michigan.
Plaintiff sues Defendant in negligence in New York state court.
(Personal jurisdiction over Defendant was provided by tagging in New
York.) New Jersey and New York tort law do not allow for non-economic
damages in negligence cases. Michigan tort law allows non-economic
damages. Plaintiff is asking for compensation for pain and suffering,
which is a form of non-economic damages. Assuming Defendant is found
liable, should the New York court allow such compensation and why or
why not? Do not address constitutional restrictions on choice of law.
[6 points – ca. 11 minutes]
4. Plaintiff (a domiciliary of California) and
Defendant (a domiciliary of Illinois) are driving in California when
Defendant, the driver, runs into a tree. Plaintiff, who was a guest of
Defendant in the car, sues Defendant for negligence in Michigan (where
Defendant has some real property that provides the basis for personal
jurisdiction for the suit). Defendant’s automobile insurance policy was
entered into in Illinois with Insurer (incorporated in Illinois with
its principal place of business in Illinois). California has a guest
statute, prohibiting guests in cars from suing those who invited them
for negligence. Illinois and Michigan have no such statute. Can
Plaintiff’s action proceed and why or why not? Do not address
constitutional restrictions on choice of law. [8 points – ca. 14
minutes]
5. Plaintiff (a domiciliary of California) receives a
judgment of $100,000 against Defendant (a domiciliary of Illinois) from
a California state court for damages from Defendant’s negligence in a
car accident in California. Four years later Plaintiff brings a suit on
the California judgment in state court in Illinois. Plaintiff asks that
the Illinois court attach property owned by Defendant and sell it in
execution of the California judgment. The Illinois court dismisses the
action, however, on the ground that it is beyond Illinois’s statute of
limitations for executing judgments, which is three years. California’s
statute of limitations on the matter is five years. Has the Illinois
court acted unconstitutionally? [8 points – ca. 14 minutes]
6. PlaintiffOne (a domiciliary of New Jersey) sues
Defendant (a domiciliary of Illinois) in federal court in New Jersey
for his damages in a three-car pileup in New Jersey and receives a
judgment against Defendant of $100,000. PlaintiffTwo (a domiciliary of
New Jersey), who was also part of the pileup, sues Defendant in state
court in Illinois for his damages in the accident. New Jersey state
procedure has a rule known as the “entire controversy doctrine.”
According to this rule, if a suit is brought in New Jersey state court,
all potential plaintiffs with causes of action that concern the same
transaction or occurrence that is the subject matter of the suit must
join the suit if they would be subject to personal jurisdiction in New
Jersey. If they fail to join they will be barred from bringing their
causes of action in a subsequent suit. Under Illinois procedural common
law and federal procedural common law, the entire controversy doctrine
does not exist. Defendant makes a motion to dismiss PlaintiffTwo’s suit
because, according to the entire controversy doctrine, it should have
been brought in PlaintiffOne’s suit in federal court in New Jersey.
What result and why? [14 points –ca. 25 minutes] [NOTE: This is an ERIE
question. Ignore if Erie was not covered this year.]
7. PlaintiffInc (incorporated in New York with its
principal place of business in New York) and DefendantInc (incorporated
in Illinois with its principal place of business in Illinois) enter
into a contract in New York in which PlaintiffInc is to build a
hospital in Illinois for DefendantInc. The contract contains a New York
choice-of-law clause, as well as a clause that obligates DefendantInc
to pay PlaintiffInc’s attorney fees in the event that DefendantInc
loses a suit concerning the contract. PlaintiffInc has no reciprocal
obligation to pay DefendantInc’s attorney fees if DefendantInc wins a
suit concerning the contract. Such a lopsided attorney fee clause is
enforceable under New York law, but not under Illinois law, which
requires attorney fee clauses in contracts to be reciprocal.
PlaintiffInc sues DefendantInc in Illinois state court for breach of
contract. Should the Illinois court rule that the attorney fee
provision is enforceable, and why or why not? Do not address
constitutional restrictions on choice of law. [14 points – ca. 25
minutes]
8. Deceased, a domiciliary of Virginia, created a
will in that state. The will gave all of her assets, including land in
California, to her 12-year old daughter (Daughter). After creating the
will, Deceased gave birth to a son. Under the law of Virginia, but not
the law of California, the birth of a new child to a testator voids the
testator’s will. After the birth of her child, Deceased then died,
leaving no new will. Under both Virginia and California law, if
Deceased had no valid will at the time of her death, her property goes
to her husband (Husband). Husband brings a declaratory action in
Virginia state court to determine who owns the California land, Husband
or Daughter. How should the Virginia court rule? Do not address
constitutional restrictions on choice of law. [16 points – ca. 29
minutes]
9. Driver (a domiciliary of Michigan) rented a car in
Michigan from Defendant Automobile Rental Co. (a California corporation
with its principal place of business in California) and drove the car
to New York to pick up his girlfriend, Plaintiff (a New York
domiciliary), for a trip to Michigan via Virginia. While driving in
Virginia with Plaintiff in the car, Driver had an accident that left
Plaintiff a paraplegic. Plaintiff brought an action in California
against Defendant arguing that Defendant is vicariously liable for
Driver’s negligence, because it owned the car involved in the accident.
Michigan and New York have both enacted statutes making the owner of a
car liable for the negligence of those to whom the car is leased. The
Michigan statute, unlike the New York statute, limits the owner’s
liability to $20,000. Neither California nor Virginia has a vicarious
liability statute, and so, under California or Virginia tort law,
Defendant would not be liable to Plaintiff. Defendant makes a motion to
dismiss Plaintiff’s complaint for failure to state a claim or,
alternatively, a motion for summary judgment that Defendant is liable
to Plaintiff for only $20,000. How should the California court decide
the motions? Do not address constitutional restrictions on choice of
law. [20 points – ca. 36 minutes]