Comparative Procedure

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LAW 6930: Comparative Procedure (2 credits)
Section 75HF
Professor Pedro A. Malavet
Summer 2015
Monday-Friday,
Third Period: 11:50 a.m.-1:00 p.m.

The University of Florida
Fredric G. Levin College of Law
COMPARATIVE PROCEDURE
Summer 2015

Prof. Pedro A. Malavet
Final Examination
(Posted: July 16, 2015)

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 extended office hours on Thursday and Friday, July 16 and 17, 2015, in the afternoon at the Citadines. However, should some important matter requiring clarification come up after that, I will post a note about it in the website and send an email to the entire class.

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://www.slu.edu/, the new Student Handbook provides very good examples of plagiarism).

DUE DATE. Your answer must be submitted to on or before Thursday, July 23, 2015, at 4:00 p.m. standard time in France.

SUBMISSION PROCESS. U.S. Students: You must submit a file attachment of your exam to my program assistant, Ms. Nathaly Rugel via email: rugel@law.ufl.edu. You may also email it to Ms. Ocepek in the Office of Student affairs (Ocepek@law.ufl.edu). DO NOT EMAIL ME; you must maintain anonymity, so if you have any problems, coordinate with my assistant, the office of the Dean or the Office of Student Affairs. In order to ensure the anonymity of grading, if you have any problems, please contact the Office of Student Affairs or the other persons identified here. Note that exam accommodation policies are implemented by the Office of Student Affairs and not by faculty. Under no circumstances should you send an exam answer directly to me. University of Montpellier Students: Please email your answers to Professor Roche (juliaroche@numericable.fr).

WHAT MUST BE TURNED IN?: A file attachment with your answer with your exam number only. Using the characher count, you must certify the character length in an additional page of the submission.

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.

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 may be collected by the Office of Student Affairs, 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 Student Code of Conduct and the 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.

TIME MANAGEMENT. I will hand out this exam on the last week 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 at least three you will take this summer. As a general guide, I would estimate that no more than three days should be spent in researching, drafting and revising your answer.

ANSWERS GENERALLY

LIMITED LENGTH. You should not repeat the question, just write an answer essay. 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. Overall, the exam answer cannot be less than ten pages and cannot exceed 15 pages, subject further to the character limit. The character limit for your answers is 27,000 characters, counting spaces and carriage returns. The limit is computed as follows: Answer space shall be limited to 1800 characters (including spaces and carriage returns) per page. That is enough for 24 lines of double-spaced text in courier type, size 11 for each page. I want a maximum 15-page answer, therefore, 1800 x 15 = 27,000 characters. Each student is responsible for keeping track of answer length. You must certify answer length using your word processing software's character count command. Print out the character length including carriage returns and spaces at the end of your answer; submission of the exam certifies the printed character count as accurate. The penalty for exceeding the character limit will be a deduction from your essay score of a percentage equal to the percentage by which you exceeded the character limit.

PERSPECTIVE. You are permitted to take one of two frames of reference: (1) that of a United States law student or (2) that of a French law student.

GENERAL EXPECTATIONS. 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 these general parameters:

  • 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 assigned textbook ("Principles"), the Malavet course packet supplement ("Supplement") , web postings, and to your notes of our class discussion. References should be simple and straight-forward. The date of a class session is enough to identify your notes, and the number of the Power Point slide as posted in Canvas is also an appropriate reference.
  • 2) Appropriately identify your sources in your answer. All sources must be identified and textual citations must be properly set-off within quotation marks or 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 and the bibliography will not count towards your character limit.
  • 3) Show that you can identify analogous United States or French 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. However, you may use anything you deem appropriate including electronic research systems.
  • 4) You should discuss the factual or legal factors disclosed by your research in a thoughtful, critical and original manner that shows your command of the material related to our course.
  • 5) Lastly, I strongly encourage you to take a position and defend it. You are now a founding mother or father, enjoy it.

QUESTION

Given what you have learned bout the functions and characteristics of the Supreme Court of the United States and the Conseil Constitutionnel of France—in the context of their respective systems of civil, criminal, administrative and constitutional adjudication— what are the relative strengths and weaknesses of each system in offering meaningful remedies for possible violations of constitutionally protected individual rights.

  • In detailing your analysis, please cover the following topics:
  • (1) What type of body should be responsible for giving the final word on the constitutionality of executive, legislative or judicial action that is based on a national or federal legislative enactment?
    • Specify how you view this body within the constitutional separation of powers scheme that you would adopt.
  • (2) What should be the number, qualifications, length of service and method of selection and appointment of members of this body?
    • Specify, if applicable, any particular specialty education, school, degree that you might require.
    • Specify, if applicable, any examination requirements (for school entry or exit, or to qualify for the professon).
  • (3) How should this body relate to the systems that traditionally adjudicate civil, criminal or administrative matters?
    • Should it be part of the system(s)? Independent of them?
  • (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, Prime Minister, Speaker of the House, President Pro Tempore of the Senate, President of the National Assembly, President of the Senate, any number of legislator and senators).
  • (5) What will be the effect of the decisions of the constitutional review body when interpreting the Constitution of the United States or that of France (depending on your frame of reference)? (Please consider three areas:
    • (1) In the same case, as to courts and parties involved;
    • (2) Within the judiciary generally as de facto or de jure "precedent"; and
    • (3) As to the other branches of government (legislative, executive and judiciary).