After Monday, February 1, 1999, any student may review his or her exam answer, subject to the following procedure:
1. Get a copy of my feedback memorandum from Ms. Betty Donaldson in the secretarial pool office. You may photocopy the memorandum. (The memo will be available starting on February 1, 1999.)
2. Get your exam from Ms. Donaldson. You may make a copy.
3. Review your exam answer after reading my feedback memorandum.
4. Beginning on Monday, February 1, 1999, you may schedule an appointment with me to discuss the exam or see me during my regular office hours. Bring your exam with you.
5. GRADES WILL NOT BE CHANGED. I encourage you to review my memo and your exam carefully. I will be happy to sit down and discuss substantive matters with each student. I will first be happy to tell each of you what you did right. I will also gladly suggest ways to improve your exam-taking abilities and to point out why an essay was not the best and how it could be improved. However, I do not wish to sound harsh, but I do want to make one thing perfectly clear: barring mathematical errors, your grade is not going to be changed. Grading is a time-consuming and difficult process. The only fair way to do it is to grade in the context of the class. I look for a fair overall grade distribution and follow the rank of each student in awarding each final grade.
53 Students answered the examination. 33 chose to answer question number 1 and the remaining 20 answered the second essay. All in all, not a bad distribution. As anticipated, I initially ranked students relative to those who answered the same question, and I accounted for the differing degree of challenge in each question, as well as the general quality of the batches. The difference in the average grades between the two essays was just under two percent. I adjusted for this difference when computing final grades. The Constitutionalism essay proved to be the more challenging question, but I also enjoyed those answers more.
I graded the examination using a 360-point scale. I used 60 points to judge compliance with the technical rules of the examination (margins, double-spacing, word-limit, certifying the word limit, transcribing the question, putting the exam number on every page of the answer). The 1500-word limit translated into 5 to 7 typed pages per exam. The remaining 300 points were used to grade substantive content of the answers.
Obviously, as I mentioned in class, the wording of the two questions was taken from my 1995 examination (the one modification being that I asked you to discuss all examples of modern forced heirship in this exam, rather than to pick one example, as I indicated in 1995). Therefore, as I emphasized in class and especially during the review session, the first major difference between this exam and the previous one was to be found in the nature of the examination, take-home open-book as opposed to a time-limited exam. The next big difference was in the instructions, which read:
ANSWERS GENERALLY. In drafting your answers, 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. (Emphasis Added).
The basic information needed to structure the answers was in my feedback memorandum for the fall 1995 examination. As I indicated in class, I expected students to structure their answers accordingly. This accounted for about one third of the grading points. Given the different nature of the exam, the bulk of the points were to be earned by identifying comparative American legal concepts and by creative, knowledgeable discussion of the material. This included, in many occasions, contrasting our system to theirs. Contrasting is an important element in comparative analysis, since you have to pick the right institutions to contrast. Simply realizing that we do things differently is an important comparative conclusion. The most successful students earned points by incorporating all three categories described in the general instructions to every part of their answer. Overall, if not individually, the comparisons showed great imagination, especially in the historical question, where the challenge was probably greater, given that you were dealing with difficult property and estates and trusts matters. The use of taxation as a model was especially interesting.
The law of succession in the civil law world is characterized by the concept of forced-heirship, i.e., that the testator has limited capacity to dispose of his or her property by inter-vivos gift or formal will. How did the forced-heirship system originate and/or develop in Roman Law, Canon Law, European Customary Law, the Revolutionary period and the early codes, and in the contemporary European systems that we studied?
1. Roman Law: Forced heirship was born in the Roman cause of action for undutiful or irresponsible will. Roman law is based on remedies not rights, thus the praetors created the action for irresponsible will, i.e., the testator failed to keep his mind on his family responsibilities. The legitim, or legitimate claim, appears towards the end of the Republic.
If you wanted to be more specific: The heir claimed that he had received less than a quarter of the state he would have been entitled to by intestate succession. Thus the legitimate share was one quarter and the free disposition share three quarters. The legitimate was increased to one third and later one half, but always of what the heir would have received in intestate succession. Justinian’s Digest, as discussed in our text, formalized the cause of action and made clear that the testator had failed to carry out his family responsibilities in not awarding the legitimate share to the heirs, not that he was crazy.
The most successful answers managed to incorporate very good discussions of Roman patriarchy, i.e., the paterfamilias rules, and their relationship to the inheritance system. Initially the pater was simply replaced upon death. The general rule was that the new pater did not simply acquire property, but succeeded the testator as a person, thus bound by most obligations of the dead and benefited from assets and obligations. Later, testamentary freedom existed, but many formal requirements applied, including that male children had to be disinherited by name and women by general clause. Then came the claim of undutiful will discussed above. Comparisons to the spousal share and to pretermitted parties were successfully made. Some students made some interesting taxation analogies.
2. Customary Law: The household or fiefdom, i.e., the immovable property, would survive intact the death of its head. Personal property was often buried or destroyed with the corpses of the dead. Christianity imposed a new distribution for the benefit of the soul; the thirds system: (1) the king; (2) heirs; (3) "God’s third". Students also used the casebook a discussion of the development of French regional law. Some students therefore put this section after the canon law section, which I felt was appropriate if justified by the content of the answer. Comparisons to Taxation of the Estate could be made to explain the King’s share. The fact that State is a default heir might be used for the Church, by way of social obligations (not quite, but ok). Some students put these comparative suggestions to very good use in their answers. P. 300.
3. Canon Law: The Church claimed jurisdiction over testaments because they are covenants with God. Donations in anticipation of death, or death bed gifts, were allowed even if oral. Usually told to a priest who was giving the last rites and protecting God’s share. Thus introducing the oral will. The canonists made three major changes to Roman practice: (a) the legitimate was a share of the entire estate, not of the intestate succession entitlement as in Roman law; (b) they give widows legitimate rights; and (c) they increase the legitimate share, if widow and children: each got one third of the whole inheritance by legitimate right. If wife OR child, they got one half of the entire patrimony. Thus in canon law the legitimate share was at least one half and could be as high as two thirds. In intestate succession the heirs got the legitimate share and the rest went to the Church. The obvious comparisons to the spousal election or share and pretermitted children statutes were used well here. P. 301.
4. Revolutionary Period: Adopted the modified Roman law system and made it an express limitation on both inter-vivos and testamentary disposition. Equality among the legal heirs was implemented. It was secular, therefore, nothing for the church. Generally speaking, a will or inter-vivos gift that disregards forced-heirship is completely invalid. In many ways the secular nature of our system today could be used for comparison here.
5. Current Examples of European forced-heirship: The German system was the most obviously available one in your text. Some discussion beyond the mere mention of each country was necessary. You could refer to the following: (1) Italian: Trust and estates under Italian law, discussed with the ETFAS case, among others, p. 1176; (2) German law of succession discussed at page 1172, the only system that does not invalidate the entire will for failure to follow forced heirship; (3) Spanish system, discussed in class by the instructor, and carefully described in the link to my seminar materials, the legitimate is divided into (a) strict legitimate share that must be divided equally among all heirs (1/3) and (b) mejora or improvement share that must be given to one or more of the heirs, but not to all and not in equal shares, finally, the remaining one third is the free disposition share; (4) French system, discussed in class by the instructor, legitimate share varies from one-half for one heir, to two-thirds for two, and three-fourths for three or more (also described in my seminar materials).
State Positivism and Constitutionalism are at opposite ends of a spectrum that describes the competing ideological extremes affecting the most important current trend in European legal development: modern constitutional democracy. In this context: What is State Positivism? What is Constitutionalism? Why is there a spectrum? Where are the legal systems of France, Spain and Germany in this spectrum and why?
1. State Positivism or Statism. The concept that law is self-justifying and binding because it is the product of the sovereign state. The elected legislature is the supreme law-making authority. The law comes from the national government. Anything not from that source is not valid, hence, jus commune was not valid, as was any law from the ancien regime, and so is judicial law-making. (See generally, Ideology of the French Civil Code.) The supreme law here is the code, which is the guarantor of basic rights to property and of freedom of contract, with the State acting as settler of disputes among individuals. Many students remembered my discussion of the code provisions that guaranteed rights similar to those protected by our 5th Amendment, and used it to illustrate this area and to provide comparative analysis and contrast. Additionally, our revolution took a much different view of the judicial role, simply by force of our history–although arguments about the extent of our judicial discretion were in order here.
2. Constitutionalism. The concept that government acts are subject to a basic law, i.e., a Constitution. We discussed the French Constitution of the Vth Republic, the Spanish Constitution of 1978 and the German Basic Law. The basic law is most important, and the Government protects and/or affirmatively promotes individual rights. The comparison between the social welfare state that is constitutionally required in Europe, and the social welfare state that is constitutionally allowed and statutorily enacted here, was a successful discussion.
3. Spectrum. There is a move away from the supremacy of the codes, and their laissez-faire attitude towards individual rights, and unfettered legislative power, to affirmative protection and even promotion of individual rights and limited governmental power. We are seeing a new trend in the civil law tradition. Hence, we see some variety. For example, France is still closer to statism, Spain is firmly moving towards Constitutionalism, and Germany has taken Constitutionalism to the extreme of the unconstitutional constitutional amendment. The oxymoronic nature of "unconstitutional constitutional amendment" in our system could be used here for comparison. Another possible comparison that was largely ignored, is the evolution of American constitutionalism. The long road from Dred Scott v. Sanford to Brown v. Board of Education. The possible turning back of the clock in the area of civil rights might make for an interesting contrast with current European trends. In terms of federalism, clearly we have a more aggressive and more pervasively influential federal government here after the American Civil War.
4. France, Spain and Germany. It is constitutionality review, as opposed to "judicial review" because France’s system is not technically judicial. Furthermore, generally speaking, the regular courts have traditionally lacked authority to declare legislative or executive acts unconstitutional. Spain has allowed courts to do so under its new Constitution, Germany requires ordinary courts to make a reference if they think that the law is unconstitutional. As opposed to the reference procedure, any judge in our nation can declare a law unconstitutional.
4.a. France. the cradle of state secular positivism has a limited constitutional review system, with the Constitutional Council reviewing legislation before it becomes law. You could discuss how the Council is becoming increasingly judicial, and how other courts may declare individual acts illegal because they are unconstitutional, but may not declare laws generally unconstitutional. This is very much affected by the lack of express stare decisis, but de facto following of decisions is important. Clearly the Constitutional Council system is contrary to American constitutionalism, which would use standing rules to require only those affected by the law to bring suit, as a general rule. American rules also prevent our courts from issuing what from our perspective are advisory opinions. Some students discussed the use of the Administrative Courts as true protectors of individual rights, in ways that in practice look much more familiar to us.
4.b. Spain. A clear and broad system of constitutional review, with the Constitutional Court at the top of the system. Its decisions are binding on all other branches of government, including the lower courts. Lower courts decide matters of private law (Pantoja case). Some students compared the distinct jurisdiction of the Spanish Supreme Court and their Constitutional court to determinations of state law, which are generally left to the discretion of the State highest courts, and ultimate constitutionality review which is left to our Supreme Court (when interpreting the Federal Constitution).
4.c. Germany. Supreme Constitutional Court decisions are binding on all branches of government, including the lower courts. Lower courts must make a reference if they believe a law to be unconstitutional. Constitutionalism is taken to the extreme of making some general principles of the Basic Law not subject to amendment. The choice of justices was very different from ours. They have abstract norm control, which we would probably call impermissible "advisory" opinions. Again, the oxymoronic nature of "unconstitutional constitutional amendment" in our system could be used here for comparison and contrast.