Comparative Law Final Exam

LAW 6250: Comparative Law (2-3 credits)
Professor Pedro A. Malavet
Spring 2019

The University of Florida
Fredric G. Levin College of Law

COMPARATIVE LAW
Spring 2006

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 our class session on Wednesday, April 19, 2006. However, should some important matter requiring clarification come up after the 19th, I will post a note about it in the website.

PLAGIARISM. Your work must be original. Please take care to avoid plagiarism, which —in the era of electronic cutting-and-pasting— can happen remarkably easily. Putting material within quotation marks or otherwise properly identifying the source of text that someone else wrote is crucial. For a helpful definition of plagiarism, please see the St. Louis University School of Law Statement on Plagiarism, which includes the following: “Direct appropriation of another author’s words must be indicated by quotation marks, a block quotation or other formatting, and a footnote or other reference must identify the source from which the quoted material was taken.” (http://law.slu.edu/policies/plagiarism.shtml).

DUE DATE. Your answer must be turned in to the Office of the Dean (the secretaries in the Dean’s office on the second floor of Holland Hall will be collecting take home examinations). Your answer must be turned in on or before FRIDAY, May 5, 2006 at 5:00 p.m. (when the Dean’s office closes!). You may turn in your answer before the due date, at your discretion.

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 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 Office of the Dean, 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 University of Florida 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 one (1) inch margins all around. Typeface should be 12-14 points.

LIMITED LENGTH. The exam answer cannot be longer than 25 pages, including notes and parentheticals, though this does not include a bibliography, if you choose to submit one. You should not repeat the question, just write an answer essay.

TIME MANAGEMENT. I will hand out this exam on the last day of classes. 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

In the Spring of 2004, the French Parliament passed law no. 2004-228, officially issued on March 15, 2004, that read: “In public schools ..., the wearing of symbols or clothing by which students conspicuously [ostensiblement] manifest a religious appearance is forbidden. Internal regulations [shall] state that the initiation of disciplinary proceedings must be preceded by a dialogue with the student.” The law was approved by a vote of 494 to 36 in the National Assembly, and 276 to 20 in the Senate. The matter was not challenged in the Conseil Constitutionnel (Constitutional Council).

Some weeks into the next school year in the fall of 2004, a 14-year old girl identified only as MH[1] is called to the principal’s office at her public high school. She is a ninth grader and has straight “A”s, no history of disciplinary problems and has not missed a single day of class in her entire school career. Nevertheless, the principal informs her that she is being suspended from school for one week because she was instructed not wear a headscarf that she wears as part of her Muslim religious practices. The girl’s parents are outraged and pursue legal action. The family lives in a large apartment on the Rue de Passy in the sixteenth district of Paris. All the family members were born in and are citizens of France.

The matter is submitted to the Administrative Tribunal of Paris on September 2, 2004, as a petition to annul the suspension. That court then refers the matter directly to the Conseil d’Etat (Council of State) on September 6, 2004. The case is resolved by the Section du Contentieux of the Conseil d’Etat with an opinion read on December 6, 2004, following oral arguments heard on November 29. The Council of State ruled that the veil worn by MH was not a “conspicuous manifestation of religious appearance” and that therefore the administrator, the principal, had not acted within the law and improperly exercised his administrative discretion. The suspension was reversed.

Consider now that there are two girls —with two sets of parents— in identical situations, but the other family lives in Gainesville, Florida, United States of America, and their daughter FM’s[2] case is resolved by the Supreme Court of the United States, after having been filed in the United States District Court for the Northern District of Florida. FM and her parents were born in and are citizens of the United States. The Supreme Court of the United States rules that the principal —who, unlike his French counterpart, was exercising discretion not based on a specific statute— violated the student’s rights to the free exercise of religion guaranteed by the First Amendment to the Constitution of the United States. The case was originally filed in the District Court on September 2, 2004. The U.S Supreme Court issues its unanimous opinion on May 2, 2006.

Compare the functions of the Supreme Court of the United States to the role played by the Constitutional Council and the Council of State in the French system, given the facts of the cases, our class discussion, our class materials, and your independent research. In crafting your answer, please explain how each institution and system reflects the respective country’s: (a) legal, political and cultural history, (b) their systems of legal professionalism and education, and (c) their current constitutional structures.

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 materials should be identified by Handout and page number or alternately by references to the PDF file that I sent to all members of the class (“PDF-[page no.]” will be fine). 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. Please be mindful of the plagiarism warning included earlier. 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. Remember the themes, perspectives and emphasis of our class discussions.