Generally-speaking, I was pleased by the exam answers. You all put obvious effort and thought into crafting your answers. Naturally, there was great variation in quality among all the answers, but I was very satisfied that every one of you worked hard to produce a solid answer. Thanks!
I felt that all members of the class had carried out their minimum responsibilities, and therefore I did not adjust final grades down for any student. I did however reward outstanding class participation by a few students with adjustments upwards. Seattle University School of Law uses a blind system, in which I turn in final letter grades using just exam numbers, and I separately turn in the names of students whose grade should be adjusted. The registrar then puts the two together and notes the final grade. I also awarded a CALI certificate to one member of the class.
The exam was graded on a 900-point scale and grades averaged just over 500 points. The highest was 700, and the lowest, I am sorry to say, was 200.
Most answers, however, were of fairly decent quality (though I noted many errors in the references to some of the institutions, particularly to the French Constitutional Council). Answers ranged in length between a minimum of six (6) and a maximum of twenty-two (22) pages, with most falling in the range of sixteen (16) to twenty (20). Citations were generally appropriately limited to the book, or to basic materials, principally web-based materials that were correctly cited in footnotes (which I found to be most effective citation method). Some students used length effectively, but for many the lack of a length limit turned into tedious, poorly-thought answers that failed to score well.
The question required you to identify a single adjudicative body in each of three European legal systems that was most analogous to our Supreme Court according to two fundamental parameters: (1) the capacity to engage in constitutional adjudication and (2) the method of selection of its members being similar to the one developed in the amendment.
Staying focused on the question throughout your answer was crucial to earning maximum points. We covered a lot of factual material, and you could easily transcribe those facts, but I was looking for thoughtful presentations of the facts that contextualized them, in some logical order of importance, in their relationship to constructing an answer to the question. Therefore, “backing” into an answer by transcribing loads of facts from your notes or the web-notes without putting the information into some reasonably structure that was logically related to answering the questions, did not score well. It was very important to not read the question to require you to pick an institution that is generally most analogous to the U.S. Supreme Court, but rather the most analogous given the two parameters indicated above: (1) the authority to conduct constitutional adjudication that is final and (2) the method of selection of its membership.
For Spain and in Germany, the task was easy. The Spanish Constitutional Court and the German Constitutional Court are the highest courts with authority to interpret the respective constitutions, and the appointment of their members is most analogous to the appointment system described in the proposed amendment. In France, the comparison was more difficult. However, the Constitutional Council had both the express authority to evaluate the constitutionality of legislation and a specialized appointment system that made it the most appropriate comparative institution for the exam’s purposes.
Some students (actually, I think only one) misread the question to require them to choose one institution among the three European systems. This was an error. You were required to identify one institution in each of the three foreign systems.
Several students noted that the amendment probably had an error in drafting, or at least an unfortunate system, that would replace the entire court every fifteen years, rather than on a staggered basis as is done by the European systems (though this also depended upon the retirement of the justices who were sitting on the court when the amendment was approved). This is probably quite undesirable. Also, changing all justices every 15 years, without a fixed stagger, just one produced by the grandfathered justices, is too dramatic a change and threatens the stability and consistency of constitutional interpretation. That was a nice discussion.
On the politics of appointment, I think that students correctly viewed the European process through the lens of the current bitterness in the U.S. over judicial appointments. While Europeans pay attention to their courts when they issue important/controversial rulings, I am not sure that it is as major a part of political discourse as it has become here. Nevertheless, it was great to see the different takes on the subject expressed in the exam answers.
There were many good critiques of the proposal from the “would it work for us” perspective. I think that these were very important, and that it reflects a sophisticated understanding of the comparative method. Just because something works for another functioning industrial democratic society, it does not mean that the system will translate well into ours, given their fundamental differences.
Some discussion of the current appointments system in the United States, to illustrate the radical nature of the change, was probably appropriate and earned points when made. However, it was possible to spend too much time on such discussion. At some point, it failed to contribute to the answer, and then it became a distraction from the main grade-earning points that needed to be made. It was likewise important to incorporate discussion of the U.S. system into the descriptions of the foreign systems, in order to explain the analogies that you were drawing and to show the relationship to the amendment proposal.
As to involvement of many branches of government, clearly the Spanish take it farthest. They involve all three branches, and the Judiciary Council, which is a quasi judicial and administrative body.
In the Federalist No. 76, Hamilton specifically addresses “cooperation” between the President and the Senate in the appointments process. He regards it as an important type of check (and presumably balance) on the power of the President and the Congress to require co-operation.
Defining terms of art also added details that earned good scores. But many times these opportunities were ignored. Probably the most ignored term was “government,” especially as that term is used in the Spanish constitutional provisions regarding the composition of the Spanish Constitutional Court. But that is just one example. One student nailed this one: The President of the Government, ... is the executive head of Spain. Thus, reference to the “government” as a participant in selecting justices to the Constitutional Court could be equated to the President of the United States’ role in contributing to the Supreme Court selection process. However, this comparison can be distinguished by the fact that the Spanish prime minister is limited to two selections, and those choices are not subject to the approval of the legislature.”
Care in the choice of language was very important. For example, referring to the French Constitutional Council as a court, without explaining that choice of term, was an inappropriate choice. Saying that the Council performs what from our perspective appears to be a judicial function, is more accurate.
There were a lot of interesting critiques of the amendment, from very widely different perspectives. Just a few examples:
"The amendment gave too much power to the legislature (which after all appoints two thirds of the justices)."
"The amendment reaches a better balance between the branches by allocating to the President a few and a few to the congress."
"The amendment violates the U.S. vision of checks and balances in separation of power by eliminating the cooperation procedure required by the advice and consent process."
On age and term limits. It was very interesting to see the wildly differing views on independence of the judiciary based on the limited terms. Some students thought that 9, 12 or 15-year terms combined with young age of appointment did NOT bode well for judicial independence, since the person would be looking forward to (or needing) future employment after their terms expire. Others thought that it created more independence, since this was just another job.
“They are good because people will not regard this a job-for-life and will think about the effects of their decisions on ordinary citizens.”
“Also, the changeover every 15 years will keep justices more attuned to the will of the people.”
“They are bad because people will be looking for work after their judgeship and might favor future employers during their tenure”(the revolving door charge that is often heard for other government officials).
Beware of plagiarism.
I noted on a couple of occasions that students had transcribed text from a source literally and without quotation marks. Even if the source is referenced, it is inappropriate to use text taken directly from a source unchanged without putting it within quotation marks. I realize that in the era of electronic cut-and-paste, this can be a real challenge, but you really must take care to avoid these problems. Resources ranged from wikipedia and the CIA World Factbook, to the Supreme Court and Library of Congress websites. Several students also found German, Spanish and French, usually-official, websites that provided basic information about the respective governments.
I was pleased with the exams. They were generally thoughtful, reflected real effort, and, most importantly to me, they reflected our classroom discussion. I wrote notes on every exam explaining the strengths of the answers and their weaknesses. I will leave the exams with my secretary, Mrs. Nora Santos, when I leave to return to Gainesville. You may review them, together with this memorandum. You may make a photocopy of your exam, and keep it for your own records. However, Seattle University requires that exams be filed for a number of months.
Grading is something that I find challenging and time-consuming. It is also a matter best handled in the context of the entire class. Therefore, I simply do not change grades. I encourage you to review your exam and this memo, but I will not change grades, absent a mathematical error, which is highly unlikely for this exam.