The Exam. This exam is TAKE-HOME AND FULLY open-book. You may consult any materials you deem appropriate. You may orally discuss this examination with anyone you wish, including your classmates and the instructor. PROVIDED HOWEVER THAT: 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 answer with any classmate, your work must be original. I will not answer questions about the examination after our class on November 25, 1997.
DUE DATE. You can keep this exam. Your answers must be turned in to my secretary, Mrs. Pamela Smith, on or before FRIDAY, December 12, 1997 at 5:00 p.m. You may turn in your answer before the due date, at your discretion.
ANSWER LENGTH. Your answers should be printed on letter-sized paper, with margins no smaller than one inch all around, in double spaced lines. You may write no more than 3,000 words. Use the "word-count" feature of your word processor to certify the length of your piece, and print it at the end of your answer.
EXAM NUMBERS. DO NOT INCLUDE YOUR NAME IN THE ANSWERS, USE YOUR EXAMINATION NUMBERS ONLY. Each page of your answer must bear your EXAMINATION NUMBER.
Honor Code. By turning in your answer, you certify that: (1) you have neither received nor given any aid beyond the allowed use of materials and oral discussion; and (2) you have complied with all applicable instructions and rules, including, but not limited to, the Honor Code.
ANSWER GENERALLY. In drafting your answer, please keep in mind that I want you to do three 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, handouts, 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, and the title of the handout enough description thereof.
(2) 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.
(3) 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.
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, Spain 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, German or Spanish Constitutional Courts.)
(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, Spanish Court power to determine constitutionality, subject to appeal, as in the U.S. 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 mentioned above (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 four 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 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.