University of Buenos Aires

School of Law
LAW I
Course 3037 – Second term 2020
FIRST TEST
Wednesday, September 23, 2020

Student’s name: Christian D. Chaves.

EXAM WRITING GUIDELINES

 Do not use bullet points. Instead, organize your answers using paragraphs and
connectors. Write a single text addressing all points, rather than isolated answers.
 Avoid informal or colloquial language (including contractions, “etc.”, vocabulary).
 Try to allow for some proofreading time before you submit.

Set A
1. John Henry Merryman (1920-2015) was a Portland graduate law professor who
taught at Stanford University for decades. Very early on in his academic career, and having
pursued five degrees, he was commissioned to study the Italian legal system, and spent
two years in that country, after which he wrote the very influential “The Italian Legal
System” and “The Civil Law Tradition”.
Scholars reviewing “The Civil Law Tradition” (first published in 1969) have noticed a
subtle bias against the civil law tradition.
According to Professor Merryman, the doctrine of stare decisis is not considered in civil
law countries:
For now it need only be said that the familiar common law doctrine of stare decisis -
i.e. the doctrine that similar cases should be decided similarly - is obviously
inconsistent with the separation of powers as formulated in civil law countries, and is
therefore rejected by the civil law tradition. Judicial decisions are not law.
Indeed, Professor Merryman maintains that the repudiation of stare decisis is one of
several factors that "tend to diminish the judge and to glorify the legislator."
Professor Merryman contends that civil law judges are also denied the power to temper
the rigor of a rule, that all nonlegal considerations must be excluded from the law in the
interest of certainty, and that considerations of justice must be excluded for the same
reason. "Hard cases, unjust decisions, unrealistic decisions, are regrettable, but they are
the price one has to pay for certainty.”
 Write a mini-essay which explores the connection between stare decisis, the civil
law tradition, and constitutions with separated powers. In particular, comment on
Merryman’s statement regarding the incompatibility between stare decisis and separation
of powers.
Answer 1)
First and foremost, it must be stated that the English system follows the doctrine of
judicial precedent, namely, certain cases have to follow the previous decisions of other
courts. This doctrine of binding precedent or 'stare decisis, stated briefly, is that any
previous decision of a court, depending upon its position in the hierarchy of courts, is
binding on a subsequent judge who is dealing with a case which is not reasonably
distinguishable from that previous decision. Furthermore, the aforementioned doctrine
arises out of the rule that it is not the function of a judge to make new law but only to decide
cases in accordance with the law as it exists (namely, stand by cases already decided).
Therefore, this is in effect part of the doctrine of the separation of powers.
With regard to Civil law, its key distinguishing feature is that it is a ‘ codified’ system.
Jurisdictions with civil law systems have comprehensive, continuously updated legal codes that
specify all matters capable of being brought before a court, the applicable procedure and the
appropriate punishment for each offence. In this law system, the judge’s role is to establish the
facts of the case and to apply the provisions of the applicable code. Though the judge often
brings the formal charges, investigates the matter, and decides on the case, he works within a
framework established by a comprehensive, codified set of laws. The judge’s decision is
consequently less crucial in shaping civil law than the decisions of legislators and legal scholars
who draft and interpret the codes. (in line with Merryman’s opinion that stare decisis "tend to
diminish the judge and to glorify the legislator.").
Concerning, the separation of powers is certainly neither an absolute nor a predominant feature
of the British constitution. Nevertheless, it is a concept which is firmly rooted in constitutional
tradition and thought. Judicial assertions of the importance of the doctrine can be explained in
light of the constitutional position of judges in relation to parliament. The concept of separation
of powers offers the judiciary a device both for the protection of the independence of the
judiciary and against allegations of judicial intrusion into matters more appropriate to
parliament or the executive. The reluctance of judges to be drawn into such matters is reflected
particularly strongly in relation to matters of the royal prerogative and parliamentary privilege.
Finally, it must be mentioned that the incompatibility between stare decisis and
separation of powers lies with the fact that judges either by virtue of the doctrine of
precedent or through the interpretation of statutes are usurping the legislative function
or, in other words, violating the separation of powers. Besides, the role of judges as law-
makers must be understood against the backdrop of the long history of the common law -
the law common to the whole country, developed by the judges rather than by Act of
Parliament.
The rules of precedent have been developed by the judges in order to ensure certainty and
uniformity in decisions. The need for certainty is expressed in the words stare decisis:
'stand by the decided cases'. In essence, decisions of the highest court - the Appellate
Committee of the House of Lords ~ are binding on all the courts lower in the hierarchy. In
brief , there is thus a structure in place by which the lower courts are controlled by the
decisions of the higher courts.

2. In 1975, the employees of a car manufacturing plant went on strike for several
weeks, demanding better working conditions. In doing so, the employees tampered with
the plant’s machines. In response, the company dismissed the employees involved in the
riot. The employees then requested a court to stop their employers from wrongfully
dismissing them. The employees planned to continue engaging in the same course of
action for as long as they wanted. In court, the employees refused to commit themselves
not to riot in the future. The court refused to grant the relief sought, holding that doing so
would be. inequitable.

 Describe the basic details of the case, including the parties and relief sought, in the
appropriate technical language. Why do you think the court decided not to grant such
remedy? Why did the court have a choice not to grant the remedy?
The parties to the dispute are the employees of a car manufacturing plant and the car
manufacturing company. The employees are the plaintiffs (the suing party) and the
company is the defendant (the party being sued).
The relief sought is the employees’ request a court to stop their employers from
wrongfully dismissing them. In order to achieve their goal, the employees went on strike
and take part in a riot.
I think that the court decided not to grant the remedy, because equity is understood as a
better form of justice due to giving a specific judgement. Equity can be understood
generally as justice and fairness. Arguably this can only be achieved if there is certainty
within the law, as without the strict rules of law there would not be universal justice and
fairness. For that reason, it is evident that the refusal of the employees to commit
themselves not to riot in the future is not reasonable. Precisely, equity is a term denoting a
system of justice, that is administered in particular court, whose nature and extent can
only be understood and explained after studying both the history and principles upon
which that court acts. Since. it was developed and administered in England by the high
court of chancery in the exercise of its extraordinary jurisdiction.

3. Decide if the statement below is true or false, and discuss.

While the UK constitution is parliamentary, because the Head of State is the Queen,
the US constitution is presidential due to the absence of a Head of State.

I think that the statement is true.

Set B
1. The growth of delegated legislation in the late 1800s and early 1900s was
perceived to have a potential to erode parliamentary democracy, prompted the Rt Hon
Lord Hewart of Bury, the Lord Chief Justice of England, to publish a collection of articles
under the title The New Despotism in 1929. In that book he observed:
Writers on the Constitution have for a long time taught that its two leading
features are the Sovereignty of Parliament and the Rule of Law. To tamper with
either of them was, it might be thought, a sufficiently serious undertaking. But how
far more attractive to the ingenious and adventurous mind to employ the one to
defeat the other, and to establish a despotism on the ruins of both! It is manifestly
easy to point to a superficial contrast between what was done or attempted in the
days of our least wise kings, and what is being done or attempted today. In those
days the method was to defy Parliament – and it failed. In these days the method is
to cajole, to coerce, and to use the Parliament – and it is strangely successful. The
old despotism, which was defeated, offered Parliament a challenge. The new
despotism, which is yet to be defeated, gives Parliament an anaesthetic. The
strategy is different, but the goal is the same. It is to subordinate Parliament, to
evade the Courts, and to render the will, or the caprice, of the Executive
unfettered and supreme. [Emphasis added.]
Following publication of Hewart's book, the Donoughmore Committee on Ministers'
Powers was established by the UK Parliament. Although that Committee did not find any
evidence to support Hewart's allegations of conspiracy to usurp both parliamentary
sovereignty and the rule of law, it did recommend that the House of Commons create a
standing Committee to consider and report upon each regulation and rule made in
the exercise of delegated legislative power and that a procedure be implemented
requiring all such rules to be laid before the House.
 Write a mini-essay addressing, among others, the following questions regarding
the issues presented above: (1) argue for or against the allegation that delegated
legislation has a “potential to erode parliamentary democracy”. (2) Discuss Lord Hewart’s
fears of subordination of Parliament to the Executive as a result of the rise in subordinate
legislation. (3) How may the rule of law and parliamentary sovereignty be “tampered
with”? Provide detailed examples.

2. John Henry Merryman (1920-2015) was a Portland graduate law professor who
taught at Stanford University for decades. Very early on in his academic career, and having
pursued five degrees, he was commissioned to study the Italian legal system, and spent
two years in that country, after which he wrote the very influential “The Italian Legal
System” and “The Civil Law Tradition”.
Scholars reviewing “The Civil Law Tradition” (first published in 1969) have noticed a
subtle bias against the civil law tradition.
Professor Merryman contends that civil law judges are also denied the power to temper
the rigor of a rule, that all nonlegal considerations must be excluded from the law in the
interest of certainty, and that considerations of justice must be excluded for the same
reason. "Hard cases, unjust decisions, unrealistic decisions, are regrettable, but they are
the price one has to pay for certainty.”
  Discuss Professor Merryman’s views on the tension between certainty and justice
in the settling of judicial disputes. Explore the potential of equity as a catalyst for justice in
the common law tradition from a comparative law perspective.

3. Decide if the following statement is true or false, and discuss:

“Doctrine” is a source of law consisting of the teachings of the most highly qualified
legal scholars.