CODE OF CONDUCT
Violations of the Code of Conduct include: (1) unauthorized con- versation among students concerning the examination; (2) giving, receiving, or soliciting unauthorized aid; (3) using materials which are not specifically permitted by the written examination instruction; (4) exceeding the examination time limit; or (5) any other dishonest conduct in connection with the examination.
INSTRUCTIONS
You are a law clerk to a Justice of the Supreme Court of a state that has always followed the traditional territorialist choice of law rules. A case has recently been appealed to the court in which one of the parties is urging the Court to adopt one of the more modern approaches to choice of law. The Justice for whom you clerk is concerned about the implications of changing the state's choice of law approach for future cases, and thus does not wish to make a decision based solely upon whether changing the approach seems appropriate for the particular case now being appealed. Rather, she wishes to make the decision based upon an enlightened consideration of whether adopting a different approach would constitute a more sound jurisprudence for resolving conflicts issues in general.
She has told you that as a result of her discussions with the other Justices, it is clear to her that if the Court adopts a new methodology for resolving choice of law issues, it will adopt either the Second Restatement or the Better Rule approach.
To assist her in making a decision, she has asked you for a memo describing briefly how these two approaches differ from the traditional approach and from each other. In doing so, she does not want you to simply restate what the approaches say should be taken into account in making choice of law decisions. Rather, she would prefer enlightenment on how courts theoretically should and actually do apply the traditional approach and these two more modern approaches. In addition, she would like your thoughts on (1) whether the Court should adopt one of these two more modern approaches, (2) if so, which one, and (3) your reasons for your recommendation.
Write your memo.
Adams sold Baker his ranch, which encompassed land on both sides of the North Dakota-South Dakota border. To purchase the land, Baker borrowed money from the Centex Corporation and the Deltac Corporation. The financial arrangements resulted in Baker giving Centex a first mortgage on the ranch and Deltac a second mortgage on the ranch. Separate mortgages were granted for those parts of the ranch in South Dakota and those parts in North Dakota.
Baker soon defaulted on his payments to Deltac, and it began foreclosure proceedings in both the North Dakota and South Dakota state courts. Centex and Baker were also parties to the suits. In each lawsuit, Deltac alleged that Baker and Centex had defrauded it in the negotiations leading to its becoming a second mortgagee. Deltac alleged that as a result of this fraud, its rights in the land should be deemed superior to Centex's rights (with the result that the debt to it would be paid first out of the foreclosure proceedings).
The South Dakota foreclosure proceedings were the first to reach judgment. The South Dakota court rejected Deltac's claims of fraud, concluding that Centex's rights in the land remained superior to Deltac's. Centex then made a motion for partial summary judgment in the North Dakota proceedings to strike Deltac's claim to have its rights deemed superior to Centex's, on the ground that the South Dakota court's finding rejecting Deltac's fraud claim was binding on the North Dakota courts through the operation of collateral estoppel and the full faith and credit clause of the United States Constitution.
How should Centex's motion be decided? Why?
Mike, (who lived in Iowa) sued Nora in Missouri (where Nora lived) for a tort committed in Iowa. During the course of discovery, Nora sought certain communications between Mike and his physician. Mike refused to provide these communications on the ground they were privileged communications. Subsequently, the Missouri court held that the communications were not privileged under Missouri law and ordered production of the communications, but Mike continued in his refusal to disclose them. The Missouri court then dismissed Mike's lawsuit as a sanction for failing to comply with its discovery orders, rendering judgment for Nora. Mike did not appeal. Under the Missouri rules of civil procedure, this dismissal was an adjudication on the merits.
Mike then sued Nora in Iowa for the same tort. It was clear that under Iowa law, the communications Mike had resisted producing in Missouri were privileged and not subject to discovery. In addition, under Iowa law a dismissal as a discovery sanction is not considered an adjudication on the merits. Nora made a motion to dismiss Mike's Iowa lawsuit on the ground that such a dismissal was required by the full faith and credit clause of the United States Constitution.
How should the motion should be resolved? Why?
In 1980, Judith Klemp filed a petition for dissolution of her marriage to George Klemp in Illinois, the state of their marital domicile. The Illinois court granted the petition, granting Judith custody of their minor daughter Sarah, with visitation rights granted to George.
Judith then moved to Minnesota with Sarah. George remained in Illinois, but sometimes came to Minnesota, staying with friends, when he exercised his visitation rights. Judith became suspicious that George was abusing Sarah on these visits, and in 1984 petitioned the Illinois court to modify its custody decree to deprive George of any visitation rights. The Illinois court, after hearing the evidence, found that there had been no abuse and denied this petition.
Judith then brought an action in a Minnesota court to have Sarah adjudicated a dependent and neglected child and to have George's visitation rights terminated. George did not appear to defend the action. The court found that child abuse had occurred, in contrast to the Illinois findings, and terminated George's visitation rights until further notice. Assume that under Minnesota's version of the Uniform Child Custody Jurisdiction Act and the federal Parental Kidnapping Prevention Act, the Minnesota court did not have jurisdiction to render this decree.
Then, a tort action was filed in a Minnesota court on behalf of Sarah seeking money damages against George for the child abuse. George did hire an attorney to defend this action. The court found it had personal jurisdiction over George. It also gave collateral estoppel effect to the findings of abuse in the Minnesota proceeding that had terminated George's visitation rights. (This was done over George's objection that they should not be given collateral estoppel effect because that court had lacked jurisdiction, and his contention that the court was obligated to give full faith and credit to the Illinois findings of no abuse). The court awarded damages against George in the amount of $325,000. George did not appeal.
Sarah has now brought an action to enforce the $325,000 Minnesota judgment in Illinois. Must Illinois give full faith and credit to this Minnesota judgment? Why or why not?
You are an associate in a law firm that represents John Jones. Jones is a lifelong resident of Raleigh, North Carolina and was seriously injured and permanently disfigured when a Trans-Air airplane in which he was a passenger crashed in North Carolina on its approach to the Raleigh airport. (The flight had originated in Florida).
In response to a perceived crisis in the cost and availability of liability insurance, North Carolina in 1985 enacted a law limiting the amount recoverable for pain and suffering in any tort action to $125,000. Because of a belief that a jury would likely award Jones damages for pain and suffering greatly in excess of this amount, your firm decided to bring Jones' law suit against Trans-Air in South Carolina, which has no such limitation on damages.
Shortly after the suit was filed, Trans-Air moved to dismiss for lack of personal jurisdiction. This motion was denied by the trial court, which found that Trans-Air was subject to "general jurisdiction," based on the fact that Trans-Air had regular flights into several South Carolina communities and had several ticket offices in the state. This ruling has not been appealed by Trans-Air, presumably because there has not yet been a final judgment in the case.
Trial of the case is scheduled to commence in two weeks. Your firm believes it likely that Trans-Air will argue in its pre-trial memorandum to the court that the court should apply the North Carolina limitation on damages for pain and suffering, and will request a jury instruction to that effect. The partner in charge of the case is fairly confident that he will be able to convince the court that South Carolina law should apply on this point as a matter of South Carolina conflicts law (he anticipates arguing that the South Carolina rule that there is no limitation on such damages is a "procedural" rule, and alternatively that it is the "better rule"). However, he also anticipates (based on discussions during settlement negotiations with Trans-Air's attorneys) that Trans-Air will argue that it would violate the United States Constitution for the South Carolina court to apply its rule to this case. He is a bit worried about this argument.
The partner has asked you to write a brief memo describing what potential arguments exist to the effect that the South Carolina court may not, because of limitations of the United States Constitution, apply its law on permissible damages in this case, potential counter-arguments, and your view as to the probable ultimate disposition of this issue.
In writing the memo, he has told you to assume the following facts in addition to those noted above: (1) Trans-Air is a Delaware corporation with its principal place of business in New York; (2) Trans-Air has regular flights serving and ticket offices in three different North Carolina communities and four different South Carolina communities--however, this is the total extent of its business activities in these states; (3) the flight on which Jones was injured passed over, but did not stop in, South Carolina on its way from Florida to Raleigh; and (4) The only times Jones has ever set foot in South Carolina were two short vacation trips over the past ten years.
Write your memo.