W.B. Fisch Winter 1999

COMPARATIVE LAW

Final Examination

General Instructions

I ...................... 30 Minutes

II ...................... 30 Minutes

III ...................... 30 Minutes

IV ...................... 30 Minutes

V ...................... 90 Minutes

Of course the actual allocation of time is up to you.

I

(30 Minutes)

In the 1970's women's groups in France and Germany as well as in the U.S. mounted attacks against laws of their respective countries which effectively forbade abortions except in the most extreme circumstances. In each country these attacks led to decisions by tribunals responsible for determining the compatibility of laws with the constitution. Discuss how the French and German decisions differed from one another as well as from the U.S. Supreme Court's decision in Roe v. Wade, in terms of (i) results, (ii) legislative context out of which the decisions arose, (iii) constitutional texts and their interpretation, and (iv) the structure and function of the tribunal making the decision.



II

(30 Minutes)

Julius is a healthy widower with two grown children, Alicia and Alexander. Julius owns a large farm which he inherited from his father. Alexander has managed the farm for a number of years, and with the profits from it has bought, in his own name, two nearby farms which he also manages. Alicia is married to Samson, eldest son of a neighboring farmer. Alexander is married to Maria, and has one child Claudius.

Alexander is killed in an accident on the farm. He has a will which says simply: "I want my two farms to go to Alicia for her life, then to Claudius for his life, then to Claudius's children." It is in writing, signed by Alexander, and witnessed by two friends, all as required by law.

With respect to each of the following questions concerning the above fact situation, give and explain the likely answers given by (i) Roman law and (ii) Italian law.

(A) Is the will subject to challenge, either as a whole or in particular provisions?

(B) To the extent that it is enforceable, how will it be implemented?



III

(30 Minutes)

Richard Wagner has applied for a license to establish a musical theater in the center of the business district of the city. He is also applying for a liquor license, in the belief that without alcoholic refreshments the theater will not get enough customers to stay afloat. Both licenses are under the jurisdiction of a local board established pursuant to national law. Under the statutory law applicable to liquor licenses, no such license may be granted for premises within 500 ft. of (among other things) a child care facility that is already in existence or the subject of a prior application.

While Richard's applications for licenses are pending, he hears that another citizen wants to open a child care facility in a neighboring building, also requiring a license to be issued by the same local licensing board. He discovers that, at the instance of certain board members who are friends of the prospective child care provider, his application is being delayed until the child care application can be submitted. The child care application is filed and approved on the same day, and immediately thereafter Richard's application is denied on the sole ground of conflict with the child care facility.

What kind of relief is available to Wagner, and to what kind of tribunal must he go to get it? Base your answer on the law of France, Germany and Japan.



IV

(30 Minutes)

Can the major differences between modern continental European civil procedure and its American counterpart be attributed to our continued use of the jury, while it is entirely absent in the civil law models? Explain your answer giving specific examples from both the first-instance and intermediate appellate stages.





V

(90 Minutes)

Answer any three of the following:

1) One of the characteristics of the modern civil law tradition is the role that it has given to scholars and scholarly opinion in the development and application of the law. Specifically with respect to Germany, identify and discuss (i) the principal manifestations of that role prior to the adoption of the Civil Code at the end of the 19th Century, and (ii) the extent to which the Code itself has altered that role.



2) It is often said that the classical Roman law (i.e., up to the end of the 2d century A.D.) developed in a manner similar to the English common law. How accurate is this comparison? What features of the system were similar to the common law tradition, and what were different? Explain.



3) The ideology of the French Revolution was, among other things, hostile toward judges as usurpers of the law-making function, and insistent on a subordinate role for them in the development and application of the law. Discuss the ways in which that position has persisted since the Revolution, and those in which it has been modified.



4) Civil procedure has sometimes been characterized as "adjective law", implying that it is subsidiary to, and shares primary values with, the substantive law it administers. Thus up to at least a century ago it was common in Germany, at least, to classify civil procedure as part of the private law. How did the classical Roman civil procedure support this view, and why is it rejected in our own time? Explain.



5) Two of the features of the American system of attorneys fees that draw the most negative comment from Europe are the contingent fee and the rule which normally excludes attorneys fees from taxable costs in favor of winning parties in civil litigation. What are the principal policy objections to these features, and to what extent are (for example) France's and Germany's own rules consistent with those policy objections? Explain.