Conflict of Laws 

Professor Rhonda Wasserman

Exam from Fall 2004

MULTIPLE CHOICE QUESTIONS
(30 points; 10 questions worth 3 points each)

1. Polly, whose mother is a member of the Hopi Tribe, was born and raised in Pennsylvania. Polly had always been fascinated by her Native American heritage. In college, she studied political science, writing her thesis on the relationship between Native Americans and the federal government. Upon graduation from college, Polly spent the summer living with her grandmother on the Hopi reservation in Arizona. In the fall, she entered law school with the ultimate dream of representing the Hopi Tribe or otherwise working to improve Native American rights. Polly attended law school in Pennsylvania so she could obtain in-state tuition and live with her family. During the summer following her first year in law school, Polly secured an internship with the Office of General Counsel for the Hopi Tribe and lived in a summer rental apartment in Flagstaff, Arizona. During the summer following her second year in law school, Polly worked as a summer associate with a Flagstaff firm that represents many Native Americans. Tragically, she was killed by a drunk driver while crossing a street in Flagstaff. Which statement most accurately describes Polly’s domicile at the time of her death?

    A. Polly was an Arizona domiciliary because she was living in Arizona at the time of her death.

    B. Polly was an Arizona domiciliary because she intended to move there after graduation from law school.

    C. Polly was a Pennsylvania domiciliary because she attended law school there.

    D. Polly was a Pennsylvania domiciliary because Pennsylvania was her domicile of origin and she had not changed her domicile.

    E. Polly was a domiciliary of neither state because she was no longer living in Pennsylvania and had not formed the requisite intent to change her domicile to Arizona.

2. Joshua, a New York citizen, and Amanda, a Pennsylvania citizen, entered into a contract pursuant to which Amanda produced custom widgets in her Pennsylvania factory for sale to Joshua in New York. The parties executed the contract in New York. Joshua declined to accept and pay for a large shipment of widgets, claiming they were defective. Amanda sued Joshua in a Pennsylvania court for breach of contract. Applying its own choice-of-law principles, the Pennsylvania court concluded that New York contract law governed the dispute. New York law requires litigants to file all pleadings and motion papers electronically by uploading them to a web site maintained by the clerk’s office. Pennsylvania law does not permit electronic filing and requires litigants to file hard copies (i.e., paper copies) of all pleadings and motion papers with the clerk’s office. Which of the following considerations would support the Pennsylvania court’s characterization of the electronic filing requirement as procedural and its decision to require the litigants to file hard copies of their litigation documents?

    A. Amanda’s lawyer is not technologically sophisticated and she does not know how to upload litigation papers to a web site.

    B. The court does not have the personnel to maintain such a web site and it does not have sufficient capacity on its server to host such a web site.

    C. The New York electronic filing requirements are published in the New York Code, which is readily available in the Pennsylvania courthouse library and on-line.

    D. None of the above.

    E. Both A and B.

3. Pierre, a New York domiciliary, rented a car from Rentco, Inc., a New York corporation that leases cars nationwide. The lease agreement was signed in New York and Pierre picked up the rental car in New York City. Pierre drove the car to Maine, where he was involved in an accident with Madeleine. Madeleine claims that Pierre’s negligence caused the accident. She has commenced a lawsuit against both Rentco and Pierre in state court in New York. Under New York law, any person (including a rental company) that permits another to use its car is vicariously liable for any injuries or deaths that result from the negligent operation of the vehicle. If New York law were to apply and Madeleine could prove that Pierre’s negligence caused the accident, then Rentco would be vicariously liable. Maine has no comparable law. If Maine law were to apply, Rentco would not be liable to Madeleine. If the New York court follows Neumeier v. Kuehner [p. 195], Schultz v. Boy Scouts of America, Inc. [p. 200] and Padula v. Lilarn Props. Corp. [p. 210], which state’s law should it apply to determine whether or not Rentco is vicariously liable?

    A. New York law because Pierre and Rentco share a common domicile.

    B. New York law because the New York rental company’s conduct (i.e., the rental of the car to Pierre) occurred in New York, its state of incorporation.

    C. New York law because New York’s policies would be most impaired by rejection of its law.

    D. Maine law because Madeleine was injured in the state of her own domicile.

    E. Maine law because the third Neumeier rule governs and points to the state where the accident occurred (and the application of New York law would encourage forum-shopping).

4. Melanie, a citizen of Ohio, owns several rental properties in both Ohio and Pennsylvania. She rented a one-bedroom apartment in Pittsburgh to Michele, a citizen of Pennsylvania, for $550 per month. Under the lease, Michele was to mail the rent check to a Pittsburgh post office box maintained by Melanie. Michele fell behind on the rent. After four months of non-payment of rent, Melanie commenced an action against Michele seeking $2200 in back rent and incidental damages. Melanie commenced the action in the Small Claims Court of Columbiana County, Ohio, where she resides. The Ohio Small Claims Court has authority to hear claims for up to $2000. Michele has never been to Ohio and has no contacts with Ohio. Michele made a motion to dismiss for lack of subject matter jurisdiction, arguing that the claim exceeded the court’s jurisdictional authority as fixed by Ohio law. The Small Claims Court denied the motion, heard the merits of the dispute and rendered a judgment for Melanie in the amount of $2350. Michele did not appeal the judgment. Melanie has now sued Michele in a state court in Pennsylvania to enforce the judgment. Michele argues that the Ohio judgment is not entitled to recognition in Pennsylvania because (1) the Ohio court lacked personal jurisdiction over her and (2) the Ohio court lacked subject matter jurisdiction to adjudicate a claim for more than $2000. What result is most likely in the Pennsylvania court?

    A.  The court likely will not recognize the Ohio judgment because the Ohio court lacked personal jurisdiction over Michele and she did not litigate the issue in Ohio.

    B.  The court likely will not recognize the Ohio judgment because the Ohio court lacked subject matter jurisdiction to adjudicate the claim.

    C.  The court likely will recognize the Ohio judgment even though Michele failed to litigate the issue of personal jurisdiction in Ohio.

    D.  The court likely will recognize the Ohio judgment because Michele litigated the issue of subject matter jurisdiction in Ohio and under Ohio preclusion law, she would be precluded from relitigating that issue again.

    E.  Both C and D.

5. The state of Hawaii has a 5% sales tax on all non-food products sold within the state. Only one food product is subject to the 5% sales tax: pineapples grown by non-Hawaii citizens. Pineco is a California corporation with its principal place of business in San Diego, California. Pineco is California’s largest pineapple producer. It sells its pineapples to retail stores throughout the West Coast as well as in Hawaii and Alaska. Because of Hawaii’s sales tax on pineapples grown by non-Hawaii citizens, Pineco is at a distinct competitive disadvantage in Hawaii. Pineco would like to challenge the constitutionality of the tax law on federal constitutional grounds. (Do not concern yourself with potential constitutional challenges under the Commerce Clause or other claims not studied in class.) Which outcome is most likely?

    A.  The court will reject Pineco’s argument that the tax law violates the Privileges and Immunities Clause.

    B. The court will accept Pineco’s argument that the tax law violates the Privileges and Immunities Clause because the law distinguishes between foreign and domestic corporations without a substantial reason.

    C. The court will accept Pineco’s argument that the tax law violates the Equal Protection Clause unless it finds that the tax law is narrowly tailored to serve a compelling state interest.

    D. The court will accept Pineco’s argument that the tax law violates the Equal Protection Clause unless it finds that there is a substantial reason for the differential treatment and the discrimination practiced against nonresidents bears a substantial relationship to the state’s objective.

    E. Both A and D.

6. Walter and Wendy, both citizens of Oklahoma, were married in Oklahoma City. They went to Fort Worth, Texas for their honeymoon. While in Texas, they went to a bar that had a simulator ride called the Bucking Bronco. Walter, who may have had too much to drink, went on the Bucking Bronco and tried to hold on as the ride simulated a bucking bull. The ride malfunctioned and gave Walter a powerful electrical shock. Walter fell from the ride and was severely injured. Within one year after the accident, Walter and Wendy filed claims against BronCo, the manufacturer of the ride, in the United States District Court for the Northern District of Texas. BronCo is a Texas corporation that has its principal place of business in Fort Worth, Texas, and administrative offices in (coincidentally) Oklahoma City. The Bucking Bronco ride in question was manufactured by BronCo fifteen (15) years ago. Oklahoma has a ten-year statute of repose, which bars a products liability suit from being filed more than ten (10) years after the manufacture of a product (even if this period ends before anyone is injured by the product). Texas has a twenty (20) year statute of repose. After filing their complaint in federal court in Texas, the plaintiffs later moved to transfer the action pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the Western District of Oklahoma. The federal court in Texas granted the motion. Under current Supreme Court precedent, which jurisdiction’s law should the federal court in Oklahoma apply to determine if the plaintiffs’ claims are time-barred?

    A.  The federal court in Oklahoma should apply the same statute of repose that a state court in Oklahoma would apply.

    B.  The federal court in Oklahoma should apply the same statute of repose that a state court in Texas would apply.

    C.  Although ordinarily a federal transferee court applies the same law that the federal transferor court would apply, that result would be unfair here because it is the plaintiffs, not the defendant, who sought the transfer.

    D.  Given the grave risk of horizontal disuniformity between federal district courts that apply different state laws, the federal court in Oklahoma should craft a uniform federal rule to determine if the action is time-barred.

    E.  Both A and C.

7. When Maude attended law school, she became fast friends with four other law students (one of whom was a Pennsylvania domiciliary). Upon graduation, the five friends agreed to form a small law firm. The firm was organized as a limited liability partnership ("LLP"), which is a form of business organization in which no partner is liable for the negligent acts committed by any other partner. The LLP was formed under the laws of the state of New York, which is where the friends had attended law school and where the LLP rented office space. All five of the partners were admitted to the New York bar. Once they began to practice law, all five partners worked in New York but the partner who was originally from Pennsylvania lived in and remained domiciled in Pennsylvania. The partnership agreement contained a non-competition clause, which barred the partners, upon leaving the firm, from soliciting any of the firm’s clients and/or from practicing law anywhere in the state of New York for a period of ten (10) years. The partnership agreement contained a Pennsylvania choice-of-law clause. Under Pennsylvania law, non-competition clauses are fully enforceable as long as they are bargained for at arms’ length. Under New York law, on the other hand, such clauses are void as against public policy unless they are very narrowly drawn (e.g., bar competition in a small geographical area for a short period of time). After practicing with the firm for several years, Maude and her partners had a falling out and Maude left the firm. Two years later, Maude opened a new firm more than 150 miles away, in a distant part of New York state, and solicited several of the original firm’s clients. The partnership filed suit against Maude in a state court in New York, seeking to enjoin her from violating the non-competition clause in the partnership agreement. If the New York court follows the Second Restatement of Conflicts, which state’s law should it apply to determine the enforceability of the non-competition clause?

    A.  New York law because under the Second Restatement, parties are not free to choose the law to govern issues (like extremely broad non-competition terms) that they cannot resolve by an explicit provision in their agreement directed to that issue.

    B.  New York law because Pennsylvania has no substantial relationship to the parties or the transaction.

    C.  New York law because Pennsylvania law is contrary to a fundamental policy of New York, which has a materially greater interest than Pennsylvania in the determination of the particular issue and which would be the state of the applicable law in the absence of an effective choice of law by the parties.

    D.  New York law because section 187 is irrelevant here, and under section 188, the place of contracting, the place of negotiation of the contract, the place of performance, and the location of the subject matter were all in New York and four of the partners are domiciled there.

    E.  Pennsylvania law because the issue is one that the parties could have resolved by an explicit provision in their agreement directed to that issue.

8. Thomas and Theodore, both New Hampshire domiciliaries, met in college and fell in love. After living together for several years, they decided to marry. New Hampshire law defines marriage as a union between one man and one woman. The couple went to Provincetown, Massachusetts, where they were married under the laws of the state of Massachusetts. For purposes of this question, assume that Massachusetts law permits same-sex marriage regardless of the partners’ domicile and regardless of the marriage law of their home state. The couple complied with all requirements of Massachusetts marriage law. Upon returning to New Hampshire, Thomas sought to enroll Theodore for health insurance benefits in his employer’s group plan. The plan guarantees employees the opportunity to enroll a spouse and/or children in the group plan upon the payment of a premium. Thomas’s employer declined to enroll Theodore on the theory that the couple’s same-sex marriage was void. Thomas sued the employer in a state court in New Hampshire to require it to enroll Theodore in the group health plan and to establish the validity of his marriage. If the New Hampshire court follows the First Restatement of Conflicts, which state’s law should it apply to determine the validity of the marriage?

    A.  Massachusetts law because the marriage was celebrated there and the couple satisfied all the requirements of its marriage law.

    B.  Massachusetts law because New Hampshire is required under the Full Faith and Credit Clause of the Constitution to recognize marriages performed in Massachusetts that are valid under Massachusetts law.

    C.  New Hampshire law because the forum always applies its own law to determine the validity of a marriage between its own domiciliaries.

    D.  New Hampshire law if the court interprets it to govern marriages of New Hampshire domiciliaries celebrated in other states.

    E.  Both C and D.

9. Harold and Maude, a married couple, are both Pennsylvania domiciliaries. They went to New Jersey to visit Maude’s family. While driving on the Garden State Parkway in New Jersey, Harold lost control of the vehicle and drove into a guard rail. Maude was injured in the accident. She would like to sue Harold to recover for the damages she suffered as a result of his negligence. Under New Jersey’s common-law interspousal immunity law, Harold would be immune from suit filed by his wife, Maude. The primary policy underlying New Jersey’s interspousal immunity law is to preserve marital harmony. The Pennsylvania Supreme Court, on the other hand, has abrogated interspousal immunity. Thus, Pennsylvania common law now permits one spouse to sue another in tort. In abrogating interspousal immunity, the Pennsylvania Supreme Court concluded that the immunity frustrated the fundamental policy of compensating victims of tortious conduct and further concluded that marital harmony would not be disrupted by interspousal suits since all drivers are required by law to obtain automobile insurance. Assume that Harold would be subject to personal jurisdiction in both Pennsylvania and New Jersey. Which statement is most accurate?

    A.  Maude should sue in a Pennsylvania state court as long as that court applies governmental interest analysis as proposed by Professor Currie.

    B.  If the Pennsylvania state court follows the First Restatement of Conflicts, it will decline to apply the New Jersey interspousal immunity law because it violates a fundamental principle of Pennsylvania public policy.

    C.  If the Pennsylvania state court follows the First Restatement and if it concludes that the New Jersey interspousal immunity law violates its public policy, it nevertheless may choose to apply the New Jersey law that underlies Harold’s defense.

    D.  Maude should sue in a New Jersey state court as long as that court applies governmental interest analysis as proposed by Professor Currie.

    E.  A, C and D.

10. Stephen, a 20-year old citizen of Pennsylvania, is a computer whiz. At the age of twenty (20), he secured a high-paying position with Microsoft, a Washington corporation with its principal place of business in Seattle, Washington. The parties negotiated and signed a one-year employment contract in Washington state. Pursuant to the terms of the contract, Microsoft agreed to pay Stephen a $25,000 signing bonus and $4000 per month for services rendered; Stephen agreed to work 50 hours per week, writing computer code for the company. The agreement contemplated that Stephen would live and work in Ohio for the year, where his girlfriend was finishing up an academic program. The parties agreed that they would renegotiate the terms of their agreement at the conclusion of the one-year term, at which time it was understood that Stephen would return to Pennsylvania, the state of his domicile. As it happened, Stephen pocketed the signing bonus and never did a stitch of work for Microsoft. Three months after signing the contract, Microsoft filed suit against Stephen for breach of contract. Stephen raised lack of capacity as a defense. Under Pennsylvania law, the age of majority is twenty-one (21); under Washington law, the age of majority is eighteen (18); under Ohio law, the age of majority is nineteen (19). Assume that Pennsylvania applies the law of the place of contracting to determine capacity to contract; Washington applies the law of the place of performance to determine capacity to contract; and Ohio applies the law of the person’s domicile to determine capacity to contract. In which state’s court should Microsoft commence action against Stephen?

    A. In a Pennsylvania state court, as long as Pennsylvania rejects renvoi.

    B. In a Pennsylvania state court, even if Pennsylvania follows renvoi, as long as Washington rejects renvoi.

    C. In a Pennsylvania state court, even if all three states follow renvoi, as long as Pennsylvania would accept the reference back to its own law.

    D. Both A and B.

    E. None of the above.

    In August 1995, Terry was hired as a school psychologist in a high school in Camden, New Jersey. Both the offer of employment and its acceptance were made orally, face-to-face, in New Jersey. Although Terry’s employer, the Camden Board of Education, grants tenure to teachers and guidance counselors after three years’ service, it does not provide such job security to its school psychologists, nurses, cafeteria staff, janitors or secretaries. In fact, although many members of the non-teaching staff have worked for the school system for many years, none of these employees has a written employment contract.

    Between 1995 and 2004, all performance evaluations of Terry’s work for the school were highly favorable. In August 2004, a new high school vice principal was appointed, to whom Terry reported. Shortly after assuming this new position, the vice principal asked Terry out on a date. Terry declined, both because she was seriously involved with someone else and because she did not believe it would be appropriate to have a romantic relationship with her immediate supervisor. Over the course of the next several months, the vice principal repeatedly called Terry at work, each time asking her out on a date and often making sexually suggestive or sexually explicit remarks. Troubled by the increasing frequency of these calls and disturbed by their content, Terry decided to stop answering her office telephone personally, and to have all her calls routed to her secretary for screening. She did not return calls from the vice principal unless the secretary relayed a specific school-related message. Two weeks after she began routing her calls to her secretary (in November 2004), Terry received a "pink slip" from the Camden Board of Education sent through the mails to her home, advising her that she was being dismissed, effective immediately, for insubordination to the vice principal.

    Outraged by the dismissal and in desperate need of money, Terry is contemplating legal action. She would like to bring a civil action against the Camden Board of Education for wrongful discharge, a state-law claim. (Terry may have a claim under Title VII of the federal Civil Rights Act and state anti-discrimination laws, but the availability of such alternate relief should not affect your answer.)

    New Jersey law does not recognize a claim for wrongful discharge brought by an "at will" employee, like Terry, whose employment relationship has no express duration. Under New Jersey common law, a person employed without express contractual guarantees of job security may be discharged for no reason or for any reason at all. The New Jersey Supreme Court has concluded that relief for wrongful discharge should come through legislative action, if at all.

    Pennsylvania, on the other hand, has been more receptive to claims by employees for wrongful discharge, especially where the employee has demonstrated that the discharge violated a significant and recognized public policy. In one case, the Pennsylvania Superior Court recognized a cause of action for wrongful discharge when an employee was discharged for performing jury duty. In another case, the Pennsylvania Supreme Court recognized a cause of action when an employee was fired for reporting a work-related health hazard to a federal agency (i.e., for whistle-blowing). In the latter case, the court cited persuasive precedent from other jurisdictions, including an Oregon opinion that permitted an employee to sue for wrongful discharge after having been fired for refusing to succumb to her employer’s sexual advances. Under Pennsylvania law, then, Terry would state a claim for wrongful discharge if her firing violated a significant and recognized public policy.

    Both New Jersey and Pennsylvania have statutes that treat sexual harassment (and other forms of harassment) as a crime.

    In answering both sub-parts of this question, you should assume that the Camden Board of Education advertises for teachers and other employees in both New Jersey and the Pennsylvania newspapers. You should further assume that personal jurisdiction would be available and venue would be proper in Pennsylvania, and that the trial court of general jurisdiction in Pennsylvania would have subject matter jurisdiction over Terry’s claim.

    For purposes of Sub-part A only, assume that Terry resided in Camden, New Jersey from 1995 to 1999, and then moved across the river to Philadelphia, Pennsylvania, where she has lived ever since. Terry notified the Camden Board of Education of her change of residence in 1999.

    For purposes of this sub-part only, please assume that Pennsylvania applies the First Restatement of Conflicts to resolve choice of law issues and New Jersey applies governmental interest analysis.

    In which jurisdiction should Terry commence her wrongful discharge action against the Camden Board of Education? Discuss in detail your reasoning.

    For purposes of Sub-part B only, assume that Terry resided in Camden from 1995 to 2004, and moved to Philadelphia only after she was fired by the Camden Board of Education. Assume that she moved to Philadelphia because her family lives there, and she will be able to live with her parents until she obtains another job. She intends to remain in Philadelphia indefinitely. Further assume that approximately 50% of the Camden Board of Education’s employees reside in New Jersey and the other 50% reside in Pennsylvania.

    For purposes of Sub-part B only, assume that Terry commenced suit for wrongful discharge against the Camden Board of Education in the Court of Common Pleas (a trial court of general jurisdiction) in Pennsylvania. Further assume for purposes of this sub-part only that the Pennsylvania court decided to apply Pennsylvania substantive law to the controversy.

    Would the Camden Board of Education’s challenge to the constitutionality of Pennsylvania’s application of its own law succeed? Why or why not? Discuss in detail your reasoning.

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