Tuesday, November 29, 2011

Constitutional Law Final Exam: 2011 Version

It's time to draft the Constitutional Law final exam.  In our previous best practices regarding final exams, we included a discussion of the strategy of using current controversies to frame the exam. 

The caveat is that the exam question must include ALL the specific material and explanations that a student would need to answer the question and not rely upon extraneous information that not all students might share.

There are some exciting possibilities for the Fall 2011 Constitutional Law exam.


The Supreme Court’s recent grant of review in three cases on the constitutionality of the Patient Protection and Affordable Care Act (ACA) is an obvious choice.   The minimum coverage provision (individual mandate) is an excellent vehicle to test the Article I powers of Congress under the Commerce Clause and Taxing Clause.  The Medicaid expansion provision can be used as a focal point for a Spending Clause analysis, with issues of federalism and the Tenth Amendment permeating this discussion as well as the ACA problem as a whole.

MBZ (Zivotofsky) v. Clinton, in which the Court heard oral arguments in early November, is an excellent framework for testing executive power and the application of Jackson’s famous “continuum” in the Steel Seizure case (Youngstown Sheet & Tube Co. v. Sawyer) included in every Constitutional Law casebook. This is a straightforward case with a direct conflict between the executive and Congress, complete with a Presidential signing statement, and relatively easily understood facts.   The lower courts declined to decide the separation of powers issue on political  question grounds, so the case provides a great way to combine two distinct doctrines in one essay.

A great dormant commerce clause issue and a preemption issue can be found in various Nebraska bills to regulate the Keystone XL Pipeline, although very recent events including TransCanada’s sudden decision to reroute the pipeline to avoid Nebraska’s Sand Hills area makes the controversy less timely than it was.

State immigration statutes can provide a fertile ground for combining a structural issue (preemption) and rights issues (equal protection, due process, and criminal procedure issues). Alabama HB56 is especially notorious and complex, with two decisions from the district judge, a brief Eleventh Circuit opinion,  and a recent complaint regarding denial of marriage licenses. There is also Arizona's well-know SB1070 (district court opinion, Ninth Circuit opinion, petition for cert.) and district court cases from Georgia and Indiana, and more complex litigation involving the Hazelton, PA ordinance (Third Circuit opinion, on remand back to Third Circuit).   South Carolina is also a recent and important addition.  Including a state immigration issue on an exam will require careful limiting of the issues in the drafting of the question, most likely done by the provisions a professor choses to include in the question.

Another combination of structural and rights issues is available in the continuing Proposition 8 litigation, Perry v. Brown.  With the recent California Supreme Court’s advisory decision on the standing of the Proposition 8 “proponents,” the stage is set for the Ninth Circuit to rule on Article III standing as well as on the equal protection and due process issues.  Recall that Judge Vaughn Walker’s extensive opinion in Perry v. Brown (f/k/a Perry Schwarzenegger) concluded that the limitation of marriage to opposite sex couples was unconstitutional under the Fourteenth Amendment.

Equal protection and affirmative action questions can be forged from the Sixth Circuit’s conclusion that Michigan’s proposition 2 restricting affirmative action is unconstitutional and the Fifth Circuit’s decision that UT’s affirmative action plan is constitutional, with a well-constructed essay giving students a chance to explore the always popular Stevens’ anomaly as a theoretical perspective.

State laws seeking to regulate abortion are rife with constitutional issues: recent statutes in Texas, Kansas, and Arizona are especially complex, allowing for equal protection and speech arguments, as well as due process.

For First Amendment speech questions, litigation surrounding Occupy is the obvious choice.   There are a number of local regulatory schemes that could be tweaked to present arguments regarding “time, place, manner” vs. viewpoint or content restrictions; the Ft. Meyers, Florida litigation provides a good template.  The  “encampment” issues could focus students on Clark v. Community for Creative Non-Violence, a case in most Constitutional Law casebooks.   The unique status of NYC’s Zuccotti Park as a private/public space could be a platform for public forum doctrine, as could the United States Supreme Court building.   Additionally, lawsuits against police activity could be the basis for testing criminal procedure and governmental immunity doctrines.

The Stolen Valor case is another excellent choice for a First Amendment speech issue, with the possibility of a comparison of the “pure speech” provision and the “intent to deceive” provision.

As for the religion clauses,  there are some interesting possibilities in the classroom: the alleged hostility of a teacher toward religion; the teacher’s display of religious mottos in the classroom;  and the use of public school classrooms for church services on the weekends.   Other possible issues include the religious exemption and town clerks in the same-sex marriage statute in New York and the proposed male circumcision ban ; and there is always the Establishment Clause controversy surrounding the Mt Soledad cross.

There is a cornucopia of issues that should make drafting the exam a delight - - - and grading the responses a satisfying endeavor.

[image: Rembrandt, A Scholar, 1631, via]


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The OWS issue speaks more to students! As for the uniqueness of Zuccotti Park, we realized this chink in the forum analysis when we first sued the High Line. Actually the first case settled without filing suit, but in High Line II settlement we made sure to get a stip from the City admitting that the group that runs it, Friends of the High Line, is an arm of the City. We foresaw other such private-public partnerships as well as more civil liberty violations against "undesirables."

Students should use our more liberal State Constitution to argue how Clark does not apply in NY.

The OWS issue also gets into the interplay between the First and Fourteenth (OWS tents used for expression versus Holiday Market tents for commercial purposes). Do it Ruthann! Then you could forward some of the students' brilliant answers to Gideon and the rest of the NLG team working on this.

Posted by: Julie Milner | Nov 29, 2011 5:10:55 PM

Interesting to learn about that stip, but I don't know of any basic constitutional law class that addresses substantive state constitutional law.

If you're going to forward students' written work (with their permission, I would hope), you should also send top answers to the Brookfield and the city.

Posted by: John Sullivan | Nov 30, 2011 7:00:33 AM

If I were representing the State on the preemption issue, I would argue that there is neither express nor implied preemption here. In Chamber of Commerce of the United States v. Whiting, Congress included an express preemption clause but provided an exception for state law license regulations. Given the exception, the court found that there was no express or implied preemption. This issue is analogous because although the federal government has expressly stated that it has control over SAFETY regulations, the bill also has an exception for ROUTING. Therefore, since there is neither express nor implied preemption for ROUTING, then the state may proceed in regulating certain aspects of the pipe without fear of preemption.

Posted by: Robin Blumenkranz | Dec 12, 2011 10:49:50 AM

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