EXAM CODE # __________
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MICHAEL STEVEN GREEN
CONFLICT OF LAWS
Law 410
SPRING 2008
3 Hours
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Student Exam Code Number _________________
TIME: You have three (3) hours to finish the exam. I have
indicated how many minutes should be devoted to each question to ensure
proper pacing.
SCORING: This exam has five (5) pages, including this cover
sheet. The total number of questions is eleven (11). 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, & Roosevelt, Conflict of Laws (7th ed. 2006)
b) Reading materials that were available on the website for the course.
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.
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:
Georgia
First Restatement
Virginia
First Restatement
Maryland
First Restatement
California
Interest analysis with Baxter’s comparative impairment approach as a
resolution of true conflicts
New
York
New York’s approach (including Neumeier rules)
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
NOTE 1: When
engaging in choice-of-law analysis under Leflar’s approach or the
Second Restatement, you need to mention only those considerations that
are actually relevant to your analysis. You don’t have to waste time
mentioning a consideration and then saying it is irrelevant to the case.
1.
The D Corp. [hereinafter D] is incorporated in Virginia with its
principal place of business in Alabama. At a convenience store in
California, P (a domiciliary of California) bought a lighter
manufactured by D in a plant in Alabama. Upon buying the lighter, P
took it home, where he modified it to make it possible to increase the
size of the flame beyond what the lighter originally allowed. On a trip
to New York, the lighter exploded, injuring P. P sued D in federal
court in Virginia for negligent manufacturing. D argued that under
Alabama, California and Virginia law, if P is found to have been
contributorily negligent in altering the lighter, he should be denied
recovery. P argues that New York law of comparative fault applies,
which allows P to recover from D even if his negligence contributed to
the accident (although P’s damages would be reduced by his degree of
fault). Which law applies and why? 4 points [7 minutes].
2.
P (a domiciliary of Ontario) and D (a domiciliary of Ontario) are
students at the University of Michigan at Ann Arbor. D was driving the
two of them back to Ontario for spring break when she ran into a tree
near Detroit, Michigan, injuring P. P sued D in Michigan state court
for negligence. D argued that Ontario’s guest statute applies. Michigan
no longer has a guest statute. How should the Michigan court decide and
why? 6 points [11 minutes].
3.
In California, the D Corp [hereinafter D] (incorporated in Delaware
with its principal place of business in California) entered into a
written contract with the P Corp [hereinafter P] (incorporated in
Virginia with its principal place of business in Maryland), under which
P was to build a new wing of a hospital for D in Michigan. In return, D
was to pay P three installments of $1.2 million each, to be deposited
in a bank account in Michigan. Although P built the wing, D found it
was not able to pay the final installment. Instead it sent to P’s
office in Maryland a promissory note, under which D was to pay P $1.5
million in three years time. P did not acknowledge the note. One year
after receiving the note, P brought suit against D for breach of
contract in Virginia state court. D made a motion to dismiss, claiming
that, under the promissory note, P could pay $1.5 million in two years.
Under the law of Virginia and Michigan, because P did not repudiate the
promissory note in a timely fashion, P is now bound to accept payment
in accordance with the promissory note as satisfying D’s obligations
under the contract. Under the law of Maryland and California, P is so
bound only if it explicitly agrees, which it did not. Should D’s motion
succeed and why or why not? 12 points [22 minutes].
4.
In her will, which was executed in New York right before her death,
Mother (a domiciliary of New York) established a trust on behalf of Son
(at that time a domiciliary of New York). The corpus of the trust was
some valuable timberland located in California and $3 million in cash
held in a bank account in New York. Under the terms of the trust, Son
received a life interest in the income from the timberland and in the
interest from the bank account. Son also was given the power to
appoint, through his will, who would receive the remainder interest in
the timberland and account upon Son’s death. In the event that Son did
not exercise the power of appointment, the remainder interest would go
to Daughter (a domiciliary of New York). Son subsequently moved to
Virginia and died there. In Son’s will, executed in Virginia right
before his death, Son did not mention the remainder interest in the
timberland and the bank account. But Son’s will did contain a clause
stating that “the reminder of my estate I give to Granddaughter.”
Granddaughter (Son’s daughter) is a domiciliary of Virginia. Upon Son’s
death the timberland was sold, and Son’s entire estate, including the
bank account and the proceeds from the sale of the timberland, was
probated in state court in Virginia. Daughter and Granddaughter both
made claims to the bank account and the proceeds of the sale of the
timberland. Under the law of California and New York, these items would
be Daughter’s, since the clause in Son’s will would not constitute an
exercise of the power of appointment referred to in Mother’s
testamentary trust. Under the law of Virginia, they would be
Granddaughter’s, since the clause would constitute an exercise of the
power of appointment. How should the Virginia court decide and why? 16
points [28 minutes].
5.
Was the Oregon Supreme Court’s application of Oregon law in Lilienthal
v. Kaufman constitutional? 6 points [11 minutes].
6.
P (an attorney and domiciliary of California) entered into a contract
in California with X (a domiciliary of Virginia) to represent X in a
case before a court in California. In Virginia, D (a domiciliary if
Virginia) successfully encouraged X to break the contract with P and
use another lawyer’s services instead. P brought an action against D in
California state court for interference with contractual relations, a
cause of action under Virginia law. Under California law (and most
other states’ laws) this cause of action is no longer recognized. D
brings a motion to dismiss for failure to state a claim, arguing that
California law applies. How should the court decide and why? 12 points
[22 minutes].
7.
D (a domiciliary of New York) left New York in his car for trip to
Florida. At a rest stop in Virginia he picked up a hitchhiker, P (a
domiciliary of Maryland). While traveling south in Virginia a deer
jumped in front of the car. D swerved to get out of the way and hit a
tree. In the accident, P, who was not wearing a seatbelt, was ejected
from the car and sustained serious injuries. P sued D in state court in
New York. D introduced the affirmative defense that P was
contributorily negligent by failing to wear a seatbelt. Under the law
of New York, Maryland, and Virginia, P was obligated to wear a
seatbelt. But under the law of Virginia, in a negligence suit the
defendant may not argue that the plaintiff was contributorily negligent
by virtue of not wearing a seatbelt. New York and Maryland allow such a
defense. Arguing that Virginia law applies, P moved to strike D’s
affirmative defense. Should the motion be granted and why or why not? 8
points [14 minutes].
8.
In Wisconsin, D (a domiciliary of Illinois) entered into an employment
contract with the P Corp [hereinafter P] (incorporated in Wisconsin
with its principal place of business in Wisconsin). Under the terms of
the contract, D was to serve as P’s sales representative in Illinois.
The contract also included: 1) a covenant not to compete, according to
which, on termination of employment, D was not to compete against P for
three years and 2) a Wisconsin choice-of-law clause. One year after
ending his employment with P, D began working for a competitor. P sued
D for breach of contract in Illinois state court. D made a motion to
dismiss, arguing that under Illinois law, covenants not to compete may
not last longer than one year. P argued that Wisconsin, not Illinois,
law applied. Under Wisconsin law the three-year covenant is
enforceable. How should the court decide D’s motion and why? 6 points
[11 minutes].
9.
The city of Chicago, Illinois levied a “wage tax” upon everyone working
in the city, including commuters residing in other states. D (a
domiciliary of Wisconsin working in Chicago), refused to pay the tax
and was sued by the city of Chicago in Illinois state court. D lost and
a judgment was issued against her. Although no wage taxes are levied in
Wisconsin, soon after Chicago enacted its wage tax, the state of
Wisconsin enacted a law specifying that wage tax judgments could not be
enforced through the attachment of real property. Under Illinois law,
attachment of real property is a means of enforcing judgments,
including wage tax judgments. The city of Chicago brought suit against
D on the Illinois judgment in Wisconsin state court, asking that D’s
real property be attached. May the Wisconsin court refuse to attach D’s
real property? 12 points [22 minutes].
10.
P (a domiciliary of New York) brought a diversity case against D (a
domiciliary of Georgia) under Ohio negligence law in federal court in
Georgia. P’s cause of action concerned a 3-car accident involving P, D,
and X (a domiciliary of Ohio) in Ohio. The jury found D to be negligent
and a judgment was issued for P. Subsequently D sued X in state court
in Ohio under Ohio negligence law for D’s injuries in the same
accident. X argued that D was contributorily negligent and that D,
having been adjudicated to be negligent in the federal court in
Georgia, is issue precluded from arguing his lack of contributory
negligence. Under both Ohio and Georgia common law, mutuality is
required for issue preclusion. In other words, anyone arguing issue
preclusion must have been a party (or in privity with a party) in the
earlier suit. (Under most states’ law, as well as federal common law,
mutuality is no longer required for issue preclusion.) D argued that
since X was not a party in the earlier suit and was not in privity with
such a party, X may not issue preclude D from relitigating D’s
negligence in the accident. Is D issue precluded from relitigating his
negligence and why or why not? 10 points [18 minutes].
11.
In Virginia, X (a domiciliary of Virginia) gives P (a domiciliary of
California) the impression that X has given P some valuable paintings
that are located in Virginia. When X dies, P takes the paintings home
to California, where he engages in costly restoration efforts that
increase the paintings’ value. In X’s will it is made clear that the
paintings in fact belong to D (a domiciliary of Virginia). P returns
the paintings to D, but sues D for the difference in the painting’s
value that resulted from the restoration. Under California law, D is
not liable for the difference in value. Under Virginia law, D is
liable. How should a Virginia state court decide which state’s law
applies? How should a California state court decide? 8 points [14
minutes].