Professor Franks

Final Examination, Summer 2002

1. Carefully analyze the facts and grasp the issues in each question before beginning to write. Spend time reading the question slowly and carefully.

2. State the issues and answers to each question concisely. Lengthy answers are not necessary.

3. Do not repeat questions in your answers. Write neatly and legibly on only one side of each page.

4. Number your answers to correspond with the question, e.g., "II."

5. If you feel it necessary to assume additional facts in any of the questions, give the facts that must be added and state why.

6. Do not write in the margin of the book.

7. All major questions are equally weighted unless otherwise indicated. Subparts are approximately equal but may be weighted slightly differently according to the number of issues involved in that subpart.

8. Write your personal identification number and the name and section number of the course on which you are being examined on the cover of each examination book.

9. If you use more than one book, indicate "Book One," "Book Two" and so forth on the cover of each book and write your PIN and the name and section number of the course on the cover of each examination book.

10. A GOOD ANSWER IS NOT NECESSARILY A LONG ANSWER.

Upon graduation from law school, you are hired by the law firm of Benton Wiley & Saft -- a truly international law firm with offices in 27 countries. You are assigned to work in their New York offices.

A few weeks after you pass the New York bar exam, World War III starts when Iraq invades Israel. Military forces of Iraq forcibly enter and occupy Israel.  They complete the occupation in the space of two or three days.  The Revolutionary Command Council of Iraq then adopts resolutions proclaiming the sovereignty of Iraq over Israel and its annexation to Iraq.  Israel is designated a "governate" of Iraq.

When the Iraqi forces took over the airport at Tel Aviv, Israel, they seized ten commercial aircraft belonging to El Al Israel Airways Corporation (El Al):  two Boeing 767s, three A300 Airbuses, and five A310 Airbuses. They lost no time in removing these aircraft to Iraq.  Within a week, nine of the aircraft had been flown to Basra, in Iraq.  The tenth aircraft, undergoing repair at the time of the invasion, was flown directly to Baghdad, Iraq, two weeks later.  The Revolutionary Command Council of Iraq then adopted a resolution dissolving El Al and transferring all its property worldwide, including the ten aircraft, to the state-owned Iraqi Airways Company (IAC).  This resolution, Resolution 369, came into force upon publication in the official gazette.  On the same day, IAC's board passed resolutions implementing RCC resolution 369.

The UN Security Council reacted quickly and ordered Iraq to withdraw immediately from Israel.  When the deadline for Iraqi withdrawal passed, military action by coalition air forces began, with strikes by NATO, the United States, Great Britain, France, and the European Union.  The airfield at Mosul, in the north of Iraq, suffered several attacks from the air.  In the raids, four of the ten aircraft seized from El Al, moved to Mosul by the Iraqis for safety reasons, were destroyed by coalition bombing.  The aircraft destroyed were the two Boeing 767s and two A300 Airbuses.  These four aircraft are referred to as "the Mosul four."  The other six aircraft, referred to as "the Iran six," were evacuated by IAC to Iran at much the same time.  Following the return of Israel to Israeli control three months ago and after negotiations with the government of Iran, these six aircraft were flown back to Israel.  El Al paid Iran a substantial amount, US$20 million, for the cost of keeping, sheltering and maintaining the aircraft.

As a result of the coalition's action against Iraq, Saddam Hussein was deposed and his government toppled.  Iraqi Airways, however, is still in business.  The United States has prohibited IAC from flying to, or over, the United States, but they still regularly conduct flights to most major European and Middle Eastern cities.

El Al wants to sue IAC, claiming the value of the "Mosul four," and damages for loss of use of the "Iran six" and for costs of getting them back.  The aircraft were valued by El Al at US$630 million. The damages claimed will exceed $800 million.

Benton Wiley & Saft has been retained by El Al.  They know of your expertise in Conflict of Laws and have invited you to sit on a strategy committee that will meet in Tokyo next week.

What defenses do you anticipate, and with what result?  What determines whether IAC acquired good title to the aircraft?  Is the Revolutionary Council's order number 369 entitled to comity?  Are there policy considerations?

Give your professor a preview of what you intend to say on these matters at next week's Tokyo meeting.

Married in December 1995 in Bastrop, Morehouse Parish, Louisiana, Gail and Sterling Adkins established their matrimonial domicile thirty miles away in Hamburg, Ashley County, Arkansas, where they lived for six years until they split up.  On 14 June of last year, Mrs. Adkins returned to Bastrop to live with the couple's only child, Lindsey Adkins, born 28 December 1998.

Mrs. Adkins obtained custody of Lindsey in Louisiana, and Mr. Adkins obtained custody of Lindsey in Arkansas.

Mrs. Adkins filed her petition for divorce on 28 June of last year, in which she requested custody of their child.  Mr. Adkins was served via the Louisiana longarm statute on or about 3 July a year ago, in Ashley County, Arkansas.  He objected to the jurisdiction of the Louisiana court, but his exception was overruled. On 25 July, judgment in the trial court awarded custody of the child to Mrs. Adkins and ordered Mr. Adkins to pay spousal and child support.

Mr. Adkins appealed only the issue of the Louisiana court's jurisdiction to order spousal and child support.  He did not appeal the child custody determination or the jurisdiction of the Louisiana court over the minor child.  On appeal, the Louisiana Court of Appeal for the Second Circuit ruled that Louisiana had no personal jurisdiction over Mr. Adkins.  Accordingly, the trial court judgment was reversed to the extent that it condemned Mr. Adkins to pay child support and spousal support.

On 7 July of last year, shortly after being served with Mrs. Adkins's petition, Mr. Adkins filed a Complaint in Equity in the Chancery Court of Ashley County, Arkansas. The Arkansas trial court rendered its decree on 25 October, awarding Mr. Adkins custody of the minor child.

Mrs. Adkins appealed the Arkansas decree, asserting that the Arkansas trial court had exercised jurisdiction in violation of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted by both Louisiana and Arkansas. The Arkansas Supreme Court examined the UCCJEA and concluded that (1) the only provision under which the Louisiana trial court could have exercised jurisdiction was under the "significant connection" subsection and (2) there was no record of findings of fact by the Louisiana trial court to support such jurisdiction.

The Arkansas court determined that, even if the Louisiana trial court had properly found a jurisdictional basis under the UCCJEA, the Arkansas trial court's ruling was correct under the governing preemptive federal statute, the Parental Kidnapping Prevention Act, 28 U.S. Code § 1738A.

After the Arkansas Supreme Court affirmed the Arkansas custody determination, Mr. Adkins filed a petition to recognize a foreign decree in the Fourth Judicial District Court, Morehouse Parish, Louisiana.  The trial court refused to grant full faith and credit to the Arkansas decree.

Mr. Adkins appeals to the Louisiana Court of Appeals for the Second Circuit.  Help that court decide the case.

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