The exam had five questions. Three were basically to be answered by following issues identified for you in my handouts, specifically: (1) Legal Education Here and There; (2) The Legal Professions; and (3) Hierarchy of Legal Sources. The other two questions were the ones I had identified for you in our review session, one that required the tracing of an institution of the civil code from Roman law, through Canon and Customary law, to the Revolution and the Modern codes. The other one was discussed during the final important part of the semester, and our review session, European Constitutionalism.
The most basic mistakes were, as I anticipated during our review session, the attempt to provide massive amounts of information without proper thoughtful analysis and simply missing the point of the question. Some students failed to read, or certainly to understand, the warning of the instructions:
In drafting your answers, please keep the following in mind: No one could cover every possible point in every detail in the time allowed. Please strive for succinctness, precision, specificity, and thoughtful analysis in all points you do address. Remember the nature of our course. Try to identify, to paraphrase Professor Merryman's eloquent introduction, the qualities that the institutions, as implemented in different countries, have in common, which set them apart from those of any other system. When specific examples might be pertinent or useful, please feel free to use them. But remember that I am looking for proper understanding of general rules and the lessons to be learned therefrom.
I was struck by how some students chose to ignore the order of the questions I posed. This resulted in much lower grades, because the answers were not well organized and thought-out. I noted with interest that students who typed their exam answers did, on average, much better than the rest of the class. This is not surprising. They took the time to organize their answers before they started typing, this resulted in much better, and usually shorter, essays. The page limitation was meant to encourage you to read the exam carefully and to organize your answer before starting to write it. This is also the reason for my no-pencils rule. Failure to write legibly also hurt a few students. While I will make all reasonable efforts to read an answer, I will not award points if I am unable to read the response to my question. This is an error that cannot be resolved after the fact, i.e., sitting down to transcribe your exam afterwards is a waste of your time, your grade will NOT change. That would be unfair to your colleagues. The answer had to be written legibly in the allotted time.
In general, I looked for identification of some of the most important issues and a correct and thoughtful discussion thereof. Students were not generally penalized for failing to discuss every point, just for discussing them incorrectly, or for failing to provide pertinent answers. For example, the question regarding hierarchy and binding authority of legal sources required a discussion of only the first part of that handout, not the entire handout. The same with the legal professions, students were asked to discuss only some of the issues addressed by the handout. The education comparison was an open-ended question, but students were not penalized for not discussing every point in the handout.
The only bonus points I awarded were for mentioning the choice of law rule known as lex loci delicti, which was relevant to answering question number 4.
Because students had a choice of questions, I weighted the average score for each question in order to eliminate the effect of differences in grading among them. Thus, every question received a weighted final score implemented to produce the same average score for each individual question. The weighted scores for each answer were added up to produce the final exam grade. The final exam grade was the starting point in determining each student's grade. To this grade, I added the points for the class project -all the students met the requirement for this assignment and got their 10 points- and then the points for class participation. As I indicated in the syllabus, class participation accounted for 5% of the grade, the project for 10% and the exam for the remaining 85% of the student's score. After this process was completed, the starting average GPA for the class was much below the established school mean, and a considerable curve had to be implemented to change the raw scores. This merely reflects my admonition that no one can cover every point in the exam, so it should not concern you very much. Overall, I was actually very pleased with the answers. The final class mean GPA was 2.96.
I encourage you to review this memo and your exam. 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 within the class in awarding the final grade. I will not rehash every computation with individual students.
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 inheritance. Generally speaking, the portion of the testator's property that can be freely disposed of is called the free-disposition share, and the portion that is limited by law is called the legitimate share.
How did the forced-heirship concept develop in Roman Law, Canon Law, European Customary Law, The Revolutionary period and the early codes? Identify one current European example of forced-heirship.
1. Roman Law [6 points]: 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 question was limited to discussion of this specific institution, therefore, other aspects of Roman succession law were not necessary parts of the answer. Nevertheless, if you chose to discuss it, the progression in Roman Law goes something like this: 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.
2. Customary Law [6 points]: 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". There is also in our casebook a discussion of the development of French regional law, which students used to earn points in this area. P. 300.
3. Canon Law [6 points]: 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. P. 301.
Background: 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.
4. Revolutionary Period [3 points]: 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.
5. Current Example of European forced-heirship [4 points]: The German system was the most obviously available one in your text. Some discussion beyond the mere mention of a country was necessary. You could pick from the following obvious choices: (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, 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.
European legal professionalism is characterized by specialization. Thus we identified Judges, Procurators, Government Lawyers, Advocates/Advisors, Notaries and Academics. As to each one of these categories: (1) describe the nature of the profession and what its duties are; and (2) contrast it with the way law is practiced in our country.
Preliminarily [5 points]: This question did NOT call for a complete discussion of everything about the professions. At most, students could preliminarily have identified that specialization is legally mandatory and enforced. No mobility among specialties, i.e., crossing professional lines, while theoretically possible, is in practice very difficult. As indicated in my handout: Specialties: generally strictly separated and incompatible to practice more than one. Except judges and procurators, sometimes. Academics tend to be part-time and occupy other positions. Points were awarded if these items were treated in the context of the discussion of each profession.
1. Judges [3 points]. Admission to judiciary immediately after school, competitive examination, judge-school likely. Starts at low level and rises through the ranks on seniority and merit. Judges in highest courts could be respected practitioners or law professors, but usually it stays within the profession. Civilians have many more judges than we do.
2. Procurators and Government Lawyers. Distinguish. [5 points]. (1) prosecutor in criminal cases, like here; (2) represents the public interest in civil cases, e.g., represents minors in certain proceedings, not like here; (3) formalized amicus function, the advocates may not properly brief the court on matters of law, so he does it, not like here.
3. Government Lawyers (mostly administrative): large number of lawyers in public service. Conditions and prestige depend on particular agency. Not unlike our in-house lawyers in administrative positions. However, note the "state law-firm" system in the Spanish and Italian examples given by our text.
4. Advocates/Advisors [3 points]. Sometimes subdivided into advisory and court-advocacy functions, hence, "advocates/advisors". Education and apprenticeship as a junior lawyer often required. Practiced in office with single senior lawyer and a few juniors. Partnerships of senior lawyers often prohibited because of the view that the professional be independent. We do not generally have formal apprenticeship, and we tend to practice in large firms.
5. Notaries [4 points]. (1) Drafts important legal documents, e.g., wills, corporate charters, conveyances of land and contracts; (2) authenticates the documents, this authentication is executory and automatically admissible in court to prove facts known personally to the notary and what the parties said, countering often requires separate proceeding, rarely filed; (3) Public record office, maintains originals, issues certified copies.
Notaries get quasi monopolies of two kinds: (1) subject matter; (2) geographic. The notary occupies a notarial seat. In France the seat can be purchased, even from a suspended notary. Note however, that the candidate must otherwise meet eligibility requirements. Numerus clausus.
6. Academics [5 points]. A sophisticated answer would distinguish here between two functions: (1) law teaching and (2) legal commentators. Becoming a professor, paradoxically, given their low pay, is very hard and competitive. Chairs, the most senior professors, take groups of assistants. After meeting more or less formal requirements, publishing a book and passing an examination, they become "private docents" who can compete for chairs with others. These sub-groups are schools of thought.
Law teaching is attractive because it helps with private law practice and helps make a person a respected commentator. Commentators are the writers of doctrine. They do the fundamental thinking for the entire legal professions. Substantially greater importance than those of our system. This is a real important difference. While the writings of civil law scholars are routinely referred to by judges and practitioners of every kind, here, try to see how many law review articles influence practice. There is in fact a distaste in the legal academy of "doctrinal" work. That is for student notes and those tacky hornbooks.
State Positivism and Constitutionalism are at opposite ends of a spectrum that describes a current trend in European legal development. 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? HINT: discuss how their legal review systems -as opposed to what we might think of as "judicial review"- work.
1. State Positivism or Statism [5 points]. 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.
2. Constitutionalism [5 points]. 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.
3. Spectrum [3 points]. 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, as discussed in our final class, 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.
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. [3 points].
4.a. France [3 points], 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.
4.b. Spain [3 points]. 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).
4.c. Germany [3 points]. 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.
You represent a person who was involved in an auto accident in a European country that has a civil code. Your client has asked you, "what is the pertinent law in this area?" Assume that there is no specific auto liability law in effect in this country. Assume further that there is a law that reads: "Whoever causes damages to another through fault or negligence must pay the damages so caused." Where would you expect to find that rule? What sources would you study in order to answer your client's question and how would you explain to her their binding effect or reliability? Can you provide any specific examples we studied during our course to illustrate your conclusions?
Preliminarily: This question is about legal sources, their hierarchy and binding authority. All items included in my handout, but, again, not everything in the handout had to be discussed! Particularly, this was not a question about interpretation. The question asks you to identify sources and to explain their binding authority. You are not given enough facts to discuss interpretation methodology, and you were not asked to do so.
Since our class was taught from the point of view of an American lawyer, the logical tack was to assume you were an American lawyer advising an American client. However, if you chose to be a foreign lawyer, the substantive analysis should not change, and the answers were graded equally.
The most common conflicts of law rule in the civil law world is lex loci delicti, i.e., you apply the substantive law of the place of the accident. [2 bonus points]. A point that I repeated throughout the semester. Hence, the question called for substantive law analysis.
1. Civil Code [3 points]. The rule transcribed in the question would almost certainly be found in the civil code of this civil code nation. In the section on extra-contractual civil liability in the Book on obligations.
2. Sources and hierarchy [6 points]. You always start with Primary, i.e., Objective or Positive law in statutory form or its non-judicial equivalent. Absent specific legislation, which you are told to assume, you start with the Civil Code general rule of tort, which you are given. Custom was not at all relevant here because it was not referred to in the statute. The rule obviously requires application to specific fact situations. Such interpretation finds two derivative sources: judicial opinions and the writings of commentators.
3. Doctrine vs. Legal Doctrine [6 points]. Discuss the interplay between judicial opinions and learned commentary. Doctrine in general refers to the work of commentators, scholars. Legal doctrine in the Spanish legal sense, means jurisprudence, in fact, jurisprudence constant, in the French sense. Jurisprudence constant, i.e., a series of concordant decisions; (2) arrêt de principe, i.e., a judgment intended to establish principle, either because the matter was unsettled or because it reverses prior decisions; (3) arrêt d'espece, a case limited to its own facts. Obviously you try to find something in categories one or two.
4. Explaining the binding effect of sources [6 points]. This was an opportunity for you to discuss: (a) the influence of judicial opinions, the general lack of stare decisis and of de jure rules on the binding effect of decisions, and, finally, the de facto effect of appellate decisions, thus a judgment call must be made; and (b) the influence of commentators.
5. Specific Examples [4 points]. The obvious one was the French automobile liability cases, which I told you to emphasize in your exam preparation. One case that went to the Cassation court twice was generally followed by lower courts and one that only went once, was not as generally followed. However, students showed considerable imagination in finding pertinent examples in our casebook, and I awarded points for all of the correct ones.
Compare civil law legal education to your legal education. How are they similar and how do they differ?
I was looking for analysis and discussion along the lines of the handout on legal education. Good discussion, not length, was particularly rewarded here. I did not expect you to cover every one of the categories, but I did expect a solid and intelligent discussion of the subjects you chose.