REMEDIES FINAL EXAMINATION - SPRING 2014 - Prof. George W. Conk - Fordham Law School Source: https://www.scribd.com/doc/228023308/Remedies-exam-Spring-2014 Note: Extracted from Scribd viewer (partial - pages 1-4 of 10 visible without subscription) Best paper posted at: http://www.scribd.com/doc/228023309/Remedies-exam-answer-Spring-2014-Best-Paper ================================================================================ Fordham Law School Remedies Final Examination Spring 2014 Prof. George W. Conk INSTRUCTIONS There are two questions. You must answer both. Work to answer each question well. I will grade your exam for its overall strength, not on a strictly arithmetic basis. The word limit is 3,000. You have 48 hours to answer, complete upload/return this exam from the moment of download. Late papers, if accepted, will be downgraded 1/3 grade. THIS IS AN OPEN BOOK EXAMINATION. There are no restrictions on materials that may be used. However, you may not consult with any other person while working on the exam and may not disclose the examination questions to any other student or discuss the exam or the questions with anyone until the end of the exam period. Graduating students must submit their answers by Wednesday, May 7th at 5:00PM and non-graduating students must submit their answers by Tuesday, May 13th at 5:00PM. You must type your answers and insert your Exam Identification Number (begins with the letter "E") and graduation year on the top of each page of your answer. Do NOT otherwise disclose your name, Fordham ID number or social security number. Your answers must be typed, using a 12 point font (preferably Georgia spaced at 1.25 or 1.5). If you are graduating please note that at the top of the paper so that I am sure to get your grade in by the deadline. This is not a research paper. You should be able to answer these questions using the materials assigned or referenced in the exam itself or on Torts Today. Your objective is to write a coherent essay - identify relevant issues and dispose of them: reach conclusions. Lawyers are rhetors. Their objective is to persuade. In preparing for the exam you might want to read Strunk & White - Elements of Style for reminders on concise writing. Sentences and paragraphs must end. Generally sooner rather than later. If a paragraph is entering its 4th sentence, think again. Verbs should have objects. E.g. RPC. 1.8 broadly bars acquisition by an attorney of pecuniary interests adverse to those of her client. (17 words) Rather than "The Model Rules, 1.8 in particular, generally don't let lawyers develop business interests that are in conflict with those of their clients, except for certain circumstances which are set forth in the Rule itself." (34 words) Twice the words, with no appreciable increase in content. You need not conform to blue book requirements. If it is a case in our materials fuzzy cites are enough, e.g. Robins Drydock. If it is a dissent, name the dissenter and the case. If you have found a new source, a full cite should be used (e.g. Smith v. Jones, 343 US 202 (1977). Ordinary rules regarding quotation, citation, and plagiarism apply. The source of the observation or insight must be cited. Quotes must be in "quotes" and paraphrases must be cited as to source. Rule of thumb: each paragraph that asserts a rule of law should have a reference to some authority. I suggest that you first read through the complete exam. After you get over the sticker shock, while you are answering one question thoughts on the others will simmer on the back burner. Before you start writing I suggest you make an outline - or sketch out the issues you want to touch. These are essay questions. Therefore good sentence structure, sensible paragraphs, and readability are important. Your principal object is to analyze the issues, identify the appropriate legal principles and reason to a conclusion. State your opinions and defend them. A well organized argument, buttressed by reference to authority, which discusses the issues in an informed, critical way, is your goal. Concrete reference to the Rules, Comments, and other authorities is valuable to clarity of thought and explanation. But a reference to a rule number or a case by itself is not explanatory. The key is to present the principle and explain the logic of the position you urge. The number of the rule or name of the case just shows where you found the idea, or how you know it expresses the law. The essay should be understandable even without the numbers or case names. Brief identifying citations are all that is needed, e.g. Rest. ยง 440, Cuyler v. Sullivan, etc. are acceptable forms of citation. But the Rule number and the case name are not a substitute for stating the proposition you are asserting. E.G. "There is a Rule 23 issue here" is opaque. But "FRCP Rule 23 permits class actions only where common questions of law and fact predominate." is helpful to the reader. Future endeavors I hope you found the course and the exam instructive. I expect to teach remedies in the fall 2014 and Professional Responsibility in spring 2015. I hope you will recommend my classes to colleagues and to see you in my PR class. I will continue my work as State Court Chair of the Faculty Clerkship Committee. We support both current students and recent graduates. If you are interested in a post-graduate judicial clerkship please feel free to contact me. Generally - the sooner the better. - GWC ================================================================================ Q. 1 - From Topeka Kansas to Seattle, Washington: Lessons of Brown v. Board of Education and its progeny "While it's tempting to adopt rules of law that give us the ultimate say on hotly contested political questions, we should keep in mind that we are not infallible, nor are we the repository of ultimate wisdom. Elected officials, who are much closer to ground zero than we are -- and whose political power ebbs and flows with the approval of the voters -- understand the realities of the situation far better than we can, no matter how many depositions and expert reports we may read in the quiet of our chambers. It therefore behooves us to approach issues such as those presented here with a healthy dose of modesty about our ability to understand the past or predict the future. It should make us chary about use of the strict scrutiny standard of review, which proclaims us the ultimate arbiters of the issue and gives those who oppose the policy in question every incentive to turn litigation, to paraphrase Clausewitz, into a continuation of politics by other means." Judge Alex Kozinski, concurring Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., No. 1, 426 F.3d 1162, 1196 (9th Cir. Wash. 2005) The United States Supreme Court in Brown v. Board of Education declared unconstitutional the widespread laws in the southern and "border" states that authorized or compelled racially segregated schools. The principal targets of de jure segregation were African American students, though Mexican-American, and Native Americans were often similarly segregated or grouped together with black students as they too were "colored". Strict scrutiny was applied to the various efforts of southern governments to avoid the command of Brown. The object, declared the Supreme Court in Green v. New Kent County was to eliminate the dual school systems "root and branch". When the courts confronted racially separate schools in the north - the product of social forces other than statutory command - the Supreme Court majority declared in Milliken v. Bradley "thus far and no farther", that is only de jure discrimination was subject to the equitable remedies of integration. Only an official policy of racial separation and discrimination would support a remedy for racial imbalance. Local schools that were "innocent" of such practices were not to be burdened by the remedies imposed on schools in states where racial segregation was mandated or authorized by statute. The Supreme Court there found local control of education to... [NOTE: Remaining pages (5-10) were behind Scribd's paywall and could not be extracted. The exam contains 2 questions.]