Comparative Law Final Exam

LAW 6250: Comparative Law (2-3 credits)
Professor Pedro A. Malavet
Spring 2005


Seattle University School of Law

COMPARATIVE LAW
Spring 2005

Prof. Pedro A. Malavet

Final Examination

The Exam GENERALLY. This exam is TAKE-HOME AND FULLY open-book. You may consult any materials you deem appropriate. PROVIDED HOWEVER THAT: Your work must be original. You may not show your written answer or a draft thereof to anyone, nor may you receive any assistance from anyone in writing the answer. You may not coordinate your answers with any classmate. I will not answer questions about the examination after my regularly-scheduled office hours on Wednesday, April 27, 2005. However, should some important matter requiring clarification come up after the 27th, I will post a note about it in the website.

DUE DATE. Your answer must be turned in to the Exam Coordinator. Your answer must be turned in on or before FRiday, May 13, 2005 at 4:30 p.m. (when the Exam Coordinator’s room closes!). You may turn in your answer before the due date, at your discretion and with the permission of the Exam Coordinator or the Office of the Associate Dean for Student Affairs.

WHAT MUST BE TURNED IN?: You must turn in a printed copy of your exam answer. You can keep this exam, you only need to turn in your answer.

Print and Back-Up your work regularly. Because computers crash, disks get “fried,” and laptops get stolen, I urge you to be careful with your exam. Print drafts of your answers regularly and backup your work on a regular basis as well. One way to keep copies is to send e-mail to yourself with the exam attached.

Problems. In order to ensure the anonymity of grading, if you have any problems, please contact the Office of the Associate Dean for Student Affairs.

Use Exam Numbers Only. Do not include your name in the answers, use your examination numbers only. Each page of your answers must bear your examination number.  Because the exams are collected by the Exam Coordinator, be sure to include our course title, and my name on the first page of your answer, to ensure that the document is routed properly.

RULES. By turning in your answer, you certify that: (1) you have neither received nor given any aid beyond the allowed use of materials; (2) your work is original and is in no way improperly copied from or inappropriately influenced by any source; and (3) you have complied with all applicable instructions and rules, including, but not limited to, those set forth herein and in the Seattle University School of Law Student Handbook. Violation of the rules may result in a failing grade or a reduction thereof and in appropriate student disciplinary action.

ANSWER FORMAT. Your answer must be printed on letter-sized paper, in double spaced lines, with a left margin of no less than two (2) inches (I use the left margin to write grading notes, hence the need to have that margin be a bit larger) and one (1) inch margins for those remaining. Typeface should be 12-14 points. There is no length limitation on your answer.

TIME MANAGEMENT. I will hand out this exam on the last day of classes, as required by faculty rules. I also want to afford you the choice of turning in your answer when it is most convenient to you, prior to the final due date. But this is not an invitation for you to engage in weeks of research and writing. This is one exam of the many you will take this semester. As a general guide, I would estimate that no more than three days should be spent in researching, drafting and revising your answer.

QUESTION

The United States Senate is currently embroiled in a bitter discussion over confirmation of the President’s nominees for the Federal bench. Believing that the debate is mostly about nominees for the U.S. Supreme Court, and that it represents a threat to the proper functioning of the Senate, Pennsylvania Senator Arlen Specter, Chairman of the Committee on the Judiciary, together with Vermont Senator Patrick J. Leahy, Ranking Democratic Member, have requested a memorandum of law analyzing a radical new proposal. The Committee is considering a proposed amendment to the Constitution of the United States that would change the judicial appointment process for justices of the Supreme Court. The amendment would read as follows:

Supreme Court Justices Generally. The Supreme Court of the United States shall have nine justices.  Justices shall be appointed to a single, non-renewable, 15-year term. Appointees shall have attained at least the age of thirty-five, and cannot be older than sixty, at the time of their appointment. Appointees shall not be required to be members of any bar, but they shall be graduates of a law school accredited by the American Bar Association, or the Association of American Law Schools, or from a law school the graduates of which are allowed to sit for the bar examination in at least one state.

  • Appointment. The justices shall be appointed as follows:
    • (1) Three justices shall be appointed upon an affirmative vote therefor of more than half of the members of the United States House of Representatives.
    • (2) Three justices shall be appointed upon an affirmative vote therefor of more than two-thirds of the members of the United States Senate.
    • (3) Three Justices shall be appointed by designation of the President of the United States at his sole discretion.
  • Vacancies. When a justice’s term ends, or if he or she ceases to be able to perform his or her functions prior thereto for any reason, including, but not limited to, physical or mental incapacity, resignation, death, retirement, or removal, the authority that appointed that justice shall fill the vacancy, following the appointment process described herein.
  • Appropriate Rules. Each appointing authority may set appropriate rules for identifying and interviewing candidates for appointment.
  • Chief Justice. At the beginning of each term of the court, the then sitting justices shall elect, by a vote of the majority of the members, one of their members to act as Chief Justice during that term.
  • Transition. The members of the Supreme Court of the United States who shall be serving at the time this amendment becomes effective, will retain their positions. Upon their death, incapacity, removal, resignation or retirement, each vacancy shall be filled in the manner prescribed herein, with the House filling the first vacancy, the Senate the second, and the President the third. Thereafter, vacancies shall be filled in this same order of selection, until all justices have been appointed in a manner stipulated herein.
  • Limited to the Supreme Court. This amendment shall not change in any way the manner of appointment of other members of the federal judiciary.

You are a member of the professional staff of Judiciary Committee and have been asked to draft the comparative section of this memorandum of law. To that end, you shall discuss analogous appointment methods used by Spain, France and Germany. For each of those comparative systems, you must identify the constitutional adjudication body that is most analogous to our Supreme Court, given the content of this amendment. You should describe why the particular body that you have chosen is analogous to our Supreme Court generally and particularly given the appointment system and governmental structures discussed in the amendment. You should further illustrate your answer by describing governmental structures in those countries that are analogous to those mentioned in the amendment. You must also describe the professional background required or to be expected among the members of the respective constitutional adjudication bodies.

ANSWERS GENERALLY. You are required to provide more comparative examples, details, and more analysis than would be required in a closed book, time-limited exam. This analysis should show your command of the material we addressed in class. In drafting your answers, please keep in mind that I want you to do at least four things:

  • 1)  Show that you have a command of the material we covered in class that is pertinent to your answer. To this end, provide references to our casebook, web postings, and to your notes of our class discussion. References should be simple and straight-forward. Page numbers for our casebook, accompanied by the prefix “CB-”, e.g., page 111 in our casebook is “CB-111”. The date of a class session is enough to identify your notes, the appropriate web-notes section may be identified as it is described in the syllabus.
  • 2) Appropriately identify your sources in your answer. All sources must be identified and textual citations must be properly set-off within quotation marks of in block indents. Footnotes and parentheticals are allowed, but you may not use endnotes. You may use a bibliography to identify sources outside of our class materials as well.
  • 3)  Show that you can identify analogous American legal concepts and materials that are the proper subject of comparative analysis. This may require you to conduct some modest research outside our class materials. Please keep it simple. I believe that most research can be limited to your first-year casebooks and materials. However, you may use anything you deem appropriate including electronic research systems.
  • 4)  Finally, you should discuss the factual or legal factors disclosed by your research in a thoughtful and original manner that shows your command of the material related to our course. This last part is especially important if you wish to earn a high grade.