Comparative Law Final Exam

LAW 6250: Comparative Law (2-3 credits)
Professor Pedro A. Malavet
Spring 2007

The University of Florida
Fredric G. Levin College of Law

COMPARATIVE LAW
Spring 2007

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 review session on Friday, April 20, 2007. However, should some important matter requiring clarification come up after the 20th, 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 4, 2007, at 4:00 p.m.  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 Code of Conduct and the Levin College of Law Honor Code. 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 35 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

The United States has often been a model of constitutional democracy around the world. However, you are deeply concerned that at least certain aspects of our system of constitutional judicial review are not expressly included in the Constitution, and you are tired of the endless debate regarding the power of the judicial branch in this regard. After carefully studying our own system, you performed comparative research into the constitutional systems of France and Germany. These studies have convinced you that it is both possible and desirable to draft clear language in which the meaning of constitutional review is clearly and expressly defined. In your current position as a United States Senator, you want to draft a constitutional amendment entitled: "A Clear System for Constitutionality Review in the United States," in which you will spell out rules that answer the following questions:

(1) What type of body will be responsible for giving the final word on the constitutionality of executive, legislative or judicial action? (You are not changing the organization of our ordinary courts at either the state or federal level. You are merely creating an express system for constitutional review in which you will spell out the role of the Supreme Court or create a new, alternative body to perform constitutionality review, e.g., French Constitutional Council, or German Constitutional Court.)

(2) What will be the number, qualifications, length of service and method of selection and appointment of members of this body?

(3) Will the state and/or federal courts be allowed to determine the constitutionality of executive, legislative or judicial action? (Yes or No, as to each category.) If so, how? (e.g., the German Reference Procedure, the existing U.S. system; keep in mind that you are not changing our ordinary court system.)

(4) How and when will matters be submitted to this body? (e.g., appeal from lower courts, reference procedure, citizen complaint, request for advisory opinion by those with special standing, like the President, the Speaker of the House, President of the Senate, any number of congressmen and senators).

(5) What will be the effect of the decisions of the constitutional review body when interpreting the Constitution of the United States? (Remember to consider three areas: (1) In the same case, as to courts and parties involved; (2) Within the judiciary generally as "precedent"; and (3) As to the other branches of government (legislative, executive and judiciary).)

In order to explain your proposal to your Senate colleagues and to the Nation, you have chosen to write a memorandum describing: (1) the rules that you have chosen, described in simple, straight forward terms, (2) their origin in our system and/or in one of the foreign systems studied in our course (even if you choose a modified version of one method or a combination of several rules, try to find a basis for it in the actual workings of the systems mentioned) and (3) the reason(s) why you favor their adoption.

You must design a system within the structure that my question has created. I encourage you to be imaginative and original about your choices. Pick the system that you like, not the one you think I like. You may also pick a system that you dislike. The essential thing is that you must design a system and describe it intelligently and knowledgeably, within the context of our class materials and discussion. Naturally, one possibility is simply to keep the system that already exists in the United States and put it into express language in the Amendment. If that is your choice, since this is a Comparative Law exam, you will have to identify and describe alternative foreign rules and explain why you rejected them. Keep in mind as well that many foreign rules are actually similar to our system, the only difference being that theirs are expressly included in their constitutions or laws and ours often are not. The bottom-line is that this is a Comparative Law exam and I must be able to evaluate your understanding of the material in our course.

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 course materials, 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 the letters “CM” (standing for “class materials”) and page number. 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.