CODE OF CONDUCT
Violations of the Code of Conduct include (1) unauthorized conversation among students concerning the examination; (2) giving, receiving, or soliciting unauthorized aid; (3) using materials 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
a. This examination consists of seven questions (the first three are ten minutes each). There are suggested amounts of time for each question, which total three hours. The total amount of time permitted for the exam is three hours.
b. Taking into account the amount of suggested times, discuss all issues reasonably raised by each question, even though your resolution of one issue may seem to render the others moot.
c. Unless otherwise indicated, assume that a "state" is one of the United States.
Briefly explain the concept of "renvoi" and why it has generally not been applied in American choice of law decisions.
Parker sues Searle for breach of contract in state A. Thinking that state B will apply law more favorable to it, Searle brings an action against Parker in state B, seeking a declaratory judgment that it has not breached the same contract. Fearing that the litigation in state B will proceed more quickly than that in state A, Parker seeks an injunction from the court in state A restraining Searle from further prosecuting the suit in state B. Searle opposes the injunction on the ground that it would interfere, in a constitutionally impermissible way, with state B's authority to determine its own jurisdiction. Is Searle correct? Briefly explain.
Lewis obtained a judgment against Murphy in state A for $50,000. The law of state A provides that its judgments may be enforced during a period of six years from their rendition. It also has a statute of limitations for actions on foreign judgments of six years.
Six years pass, and Lewis has still not collected. Seven years after the judgment was rendered, Lewis brings an action on the judgment against Murphy in state B, which has a ten year statute of limitations for actions on judgments. The court in state B recognizes the judgment, entering judgment in favor of Lewis against Murphy in the amount of $50,000, plus post-judgment interest (determined by applying state A's law on post judgment interest). Lewis then brings an action on state B's judgment in state A, requesting state A to recognize the judgment. May state A refuse to recognize the judgment, on the ground that enforcement is being sought outside of its six year limitations periods? Briefly explain.
In his dissent this year in BMW of North America, Inc. v. Gore (the punitive damages case), Justice Scalia made the following statement:
On first reading [a portion of the majority's analysis], one is faced with the prospect that federal punitive damages law ... will be beset by the sort of "interest analysis" that has laid waste the formerly comprehensible field of conflict of laws.
Do you agree or disagree with the last two assertions made in this statement--i.e. that the field of conflict of laws was "formerly comprehensible" and that the injection of interest analysis into many of the modern approaches has "laid waste" this field of law? Explain your agreement or disagreement with each, giving examples where appropriate.
States X and Y are adjacent to each other. The Calder and Davis families live in state X. One day, Marge Calder drove into state Y, accompanied by her young son Tim. She and Tim got out of her car at an ice cream stand in state Y, and while she was ordering ice cream at the window, Tim became fascinated by the miniature golf course across the street, and began to wander towards it. He stepped out into the street and was struck by a car driven by Ed Davis (who, as is noted above, was also from state X).Tim was severely injured.
The Calders subsequently came to your office, and you began negotiations with Davis' insurance company on their behalf. The insurance company's position has been that Marge was largely responsible for the accident by neglecting to prevent Tim from wandering into the street. As a result, you have been unable to negotiate a settlement acceptable to the Calders, and you have decided to file suit.
The applicable tort law of states X and Y is largely the same, with one notable difference. State Y law would permit Davis, as defendant, to assert a third party claim against Marge Calder, alleging that she was partially responsible for Tim's injuries by reason of her negligent supervision. In asserting such a third party claim, Davis could seek contribution from Marge, proportionate to the degree a jury found her at fault, for a portion of the damages Davis was deemed liable for. Under the law of state X, such a third party claim would not be permitted. Accordingly, you would like to file suit in a court that would apply state X law on this issue.
State Y's law permitting a third party claim was developed in caselaw that abrogated parent-child tort immunity. Y's decisions include statements such as "The doctrine of parental immunity serves no rational purpose," and "The law of this state is that parents have a duty to exercise reasonable care to protect their children and keep them from danger. Conduct that falls below this standard should clearly be discouraged."
State X's caselaw, which does not permit a tortfeasor to seek contribution from a child's parents, reflects "concern that a parent's failure to provide adequate supervision should not be permitted to diminish or bar a child's recovery against a third party." The decision holding that such a claim is not permitted stated:
It is artificial to separate the parent and child as economic entities by the assertion that the recovery of the nonparent defendant from the negligent parent does not technically diminish the injured child's recovery. The reality of the family is that, except in cases of great wealth, it is a single economic unit and recovery by a third party against the parent ultimately diminishes the value of the child's recovery. Even if scrupulous care were taken to see that the parent's contribution did not come out of the child's recovery, there would still be a strain on the family relationship, a result which our courts consistently sought to avoid.
In resolving choice of law issues, State X applies the most significant relationship approach of the Second Restatement. State Y applies interest analysis, and will consider arguments based on precedent from other states that have adopted interest analysis, including New York. (It has not, however, seemed inclined to consider arguments based on comparative impairment, so you need not discuss that concept).
Where would you suggest that the suit on behalf of Tim be brought? Explain the reasoning leading to your conclusion.
For many years, state A's supreme court refused to recognize a common law cause of action for invasion of privacy, stating that the creation of such a cause of action was the province of the state legislature. In response, and notwithstanding the strong opposition of various media entities in the state, in 1994 A's legislature passed the following statute, which was signed into law by the governor.
STATE A STATUTES §196.01--PRIVACY PROTECTION ACT
Subd. 1. A person or corporation whose privacy interests have been unreasonably invaded may recover damages resulting from such an invasion of privacy.
Subd. 2. No action for damages may be brought pursuant to this section unless it is commenced within one year after the cause of action accrues.
In January of 1995, the Capitol Press, which is a newspaper in state A ran an "investigative" story about Elmer Fudd, a resident of state A, which disclosed a number of embarrassing and arguably "private" facts about Fudd's past. Fudd did not get around to seeing an attorney about this until February of 1996. The attorney advised Fudd to sue for invasion of privacy in adjoining state B. The Capital Press regularly sold a significant number of its papers (about two per cent of its total circulation) in state B. State B recognized a common law action for invasion of privacy, and its courts had held that state B's three year statute of limitations for personal injuries was applicable to such actions. Fudd brought suit in state B. The Capitol Press moved to dismiss on the ground that the suit was barred by state A's statute of limitations.
Assume that under its choice of law principles, state B would apply state A's law on invasion of privacy. Discuss (1) whether state B should apply state A's statute of limitations, under both traditional choice of law principles and choice of law approaches reflecting some consideration of state interests, and (2) assuming state B is inclined to apply its own statute of limitations, whether doing so would be constitutionally permissible.
Smith, who lived in Pennsylvania, was driving his Buick automobile in New Jersey when it was hit by an automobile driven by Jones. Smith was severely injured. Smith sued Jones in a New Jersey court, alleging that the accident was caused by Jones' negligence. After a trial on the merits, judgment was entered in favor of the defendant Jones.
Subsequently, Smith brought suit against General Motors ("GM"), which had manufactured Smith's Buick. This suit was brought in Pennsylvania, and was based on a products liability theory, alleging that the Buick was defective in having insufficiently sturdy steel in the doors and a defective passenger restraint system. Smith alleged that these defects contributed to his injuries, and that GM was accordingly liable for damages.
Shortly after the Pennsylvania suit was filed, GM made a motion for summary judgment. The motion was based on the fact that GM had not been joined as a defendant in the New Jersey suit against Jones, and New Jersey's "entire controversy doctrine."
New Jersey's entire controversy doctrine is a doctrine of preclusion that sweeps more broadly than the preclusion rules of every other state in the United States. It requires parties to an action not only to raise in that action all related claims they may have against other parties (the traditional claim preclusion rule), but also to join all non-parties subject to the court's jurisdiction against whom additional claims might be made, if those claims are related to the occurrence giving rise to the lawsuit.
The New Jersey courts have stated that the objectives of the entire controversy doctrine are "(1) to encourage the comprehensive and conclusive determination of a legal controversy; (2) to achieve party fairness, including both parties before the court as well as prospective parties; and (3) to promote judicial economy and efficiency by avoiding fragmented, multiple, and duplicative litigation."
New Jersey caselaw was clearly to the effect that, if the suit against GM were in a New Jersey court, the claim against GM would be dismissed pursuant to the entire controversy doctrine. Pennsylvania claim preclusion law was equally clear that Jones' failure to join GM in a suit against Jones would not bar a later suit against GM.
In support of its motion to dismiss, GM argued that full faith and credit principles required the Pennsylvania court to dismiss the action, pursuant to New Jersey's entire controversy doctrine. Jones argued, on the other hand, that Pennsylvania was not obligated to follow this aspect of New Jersey preclusion law, but rather that it was free, pursuant to its own law, to permit the suit to proceed. Discuss how the motion should be resolved.