The following is an old exam for conflicts, to give my current students an idea of what my exams look like. I'll go over some of the answers in the review session.
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.
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: 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, D 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].