Law Professor Orin Kerr has an informative post (with terrific comments) on law school exams and law school grades. Professors Heller and Yin also provide personal-knowledge based insight into law school exam writing and grading.
My 1L grades were horrible. However, I figured out the Law School Exam Writing Game, and obtained wonderful results, earning numerous "A's" and the highest scores in four extremely competitive classes.
My advice is to use the "Law in a Flash" flashcards for each class. (I also found the Examples and Explanation series helpful). As you work through the cards, type out your answer in IRAC format. The reason the cards and the examples questions are so helpful is because each presents a single issue and thus every card challenges you to write a minature IRAC-based exam answer.
You should also cross off every sentence in the law school exam question as you use it. Almost every sentence in a law school exam raises some issue. Thus, you should use every sentence from the exam in your answer. Crossing off as you go along helps ensure that you use everything.
You should also use headings.
Below the fold is my answer to the Fall 2003 Con Law exam, which incorporates all of my suggestions. Because I typed my law school exams, I simply copied and pasted my answer, which is reproduced exactly as submitted. (It was a three-hour exam). To find the questions I had to answer, click here, then select "Kmiec" and "Constitutional Law - Federal and State Power Relations." Click the button in the middle of the page that says "Find Exams." Select the "Fall 2003" exam, which is the first one that appears on the page. Then click the "View Exam" button.
smSample Student Answer to Fall 2003 Fed/State Examination
Question No. 1 - Endrun
Article III of the Constitution gives federal courts the power to hear "cases" and "controversies." To ensure there is a case or controversy before it, Courts apply the justiciability doctrines (standing, ripeness, mootness, political question). Thus, before we can challenge Washington, we must get you into court.
A corporation is a person for purposes of Article III. To file suit in federal court you must have standing. There are three requirements to standing. First, you must establish an injury-in-fact. This injury must be individualized and pariculariezed; real and concrete. You must show that Wash Rev. 196.7 & 196.5 have caused you an injury in fact. We will need to talk about why a requirement you incorporate in Washington should injure you. This is especially so since you already have a subsidiary in Washington incorporated therein. Why, then, does this law injure you corporately?
I assume it's because your home office is in Texas; it would be more expensive to incorporate in Washington for purposes of income tax, infrastructure, etc. Thus, we will plead that Section 196.7 causes you an injury-in-fact because it prevents you from "serving the State of Washington" because you are not incorporated in Washington. [Again, you can serve Washington through your subsidiary, Northwest Power & Light, so we will need to discuss this more in-depth]. Section 196.5 injures you because it prevents you from managing a subsidiary of yours, Northwest Power and Light.
You can clearly show an injury-in-fact caused by Section 196.5. Showing an injury because of Section 196.7 is more difficult, but doable.
Second, you must show that your injury is fairly traceable to state action. We must meet this causation requirement for each injury. We should be easy to show how both provisions injure you. Namely, but for Washington's incorporation requirement, you would not have to spend money on an office in Washington, you would save taxes, etc. But for Section 196.7, you could manage your subsidiary in Washington. Again, this is easily met. Third, you must show that a federal court opinion will redress to harm. In other words, you must show the federal court that by rendering a decision, it will do something, fix something, etc. We can show this by saying, the case is redressible because if both of the statutes are struck down, then you will not be forced to devote time, labor, and effort to creating a corporation in Washington. Thus, a favorable opinion will resolve some issues.
The Eleventh Amendment of the Constitution forbids federal courts from exercising its jurisdiction over a State. You may not sue a state in federal court for compensatory relief. In other words, you can't sue Washington for money. In fact, the only way to drag Washington into court in under an exception to the 11th Amendment, namely Ex parte Young immunity "stripping."
We must determine who the leave enforcement officer in Washington for these statutes are. We must sue that person in his or her individual capacity for prospective relief. Thus, our suit will not be viewed as one against the state but merely one against an enforcement officer to prevent him from enforcing an unconstitutional law. It is an obvious fiction, but one we must abide by. Moreover, there are additional standing requirements under city of los Angeles v. Lyons. If for some reason your injury goes away, you can not seek injunctive relief. In other words, if you incorporate in Washington, you may no longer have standing to challenge the law because you will not have an injury sufficient to challenge the law for prospective relief. In Lyons, the LAPD put a non-threatening person into a choke hold, almost killing him. Lyons sued for money and to prevent the LAPD from using this choke hold (injunctive relief). Lyons could not obtain the latter relief because although he had an injury, it was only a past injury. However, in your instance we would say that every day you are incorporated in Washington, you lose money because they have higher taxes. Thus, your injury is ongoing. Sorry to belabor this point. I am only trying to brace for you what may be protracted litigation.
Even though you have an injury caused by state action that can be fixed with federal court relief, we have to establish that your case is ripe for review. In other words, NOW is the time to file it. The leading case on this is Abbott Laboratories and the Court looks to two factors. First, what is the hardship to the parties for withholding review and second, is this issue fit for adjudication. It teaches us that your case is ripe because you are faced with the choice of either refraining from engaging in lawful conduct (doing business in energy in Washington) or risk being prosecuted for engaging in this conduct. Thus, you meet this "Hobson's choice" requirement. Moreover, your case is ripe for review because it raises issues purely of law, and does not require a detailed factual record.
Actual Relief - Violation of Dormant Commerce Clause
We will get you into federal court and sue, alleging that the Statutes violate the dormant commerce clause. Article I, Section 8 gives Congress the power to regulate commerce with the several states. Read into Article I, Section 8 is a "dormant" aspect that is judicially created an enforceable. A state statute violates this dormant commerce Clause when it has the purpose or effect of discriminating against out-of-state business in interstate commerce. A statute discriminatory on its face (and to be discriminatory it need only treat Texas energy companies differently from Washington ones even without animus or bad faith) is unconstitutional under the dormant commerce clause unless it meets a compelling state interest and is the least restrictive means of achieving this. No state law has ever passed this test. This law will not likely pass the test
Section 196.7 requires all "public utility[companies] serving the State of WASHINGTON" to incorporate in the "State of Washington." Thus, in-staters have an obvious advantage since they do not have to leave their home offices to incorporate. Section 196.5 prevents states not incorporated in Washington from doing business with them. Thus, these statutes discriminate against out-of-state corporations. This discrimination is impermissible, lacks a compelling state interest, and is not narrowly tailored. If Washington wants to ensure oversight of utility companies, it may use its criminal system to prosecute people who commit fraud, it may create an administrative agency, etc.
These laws will not pass the compelling state interest test and thus violate the dormant commerce clause.
Whether Congress has the power under its Article I Commerce Clause to preempt the offending Washington legislation.
Congress has power to regulate commerce among the several states. Article I, Section 8. Moreover, all laws passed pursuant to an enumerated power are the supreme law of the land under Article VI of the Constitution. Thus, if Congress has the power to regulate in the area in which Washington is acting, then Congress has the power to preempt.
Commerce is defined broadly, and includes the channels of interstate commerce; goods persons or things in interstate commerce; and activities (even wholly intrastate) having a substantial effect on interstate commerce. In the Court's modern Commerce Clause jurisprudence, ala Lopez and Morrison, the Court also asks, is the activity Congress seeks to regulate one that is "truly national" rather than "merely local."
Energy has a substantial effect on interstate commerce. Enron, a TX corporation, manipulated the energy markets in California. Energy must be used up as it is made. Thus, energy "created" in Texas can, and very often is, needed in California or elsewhere. Moreover, energy is a "good" or "thing" in interstate commerce, since it is traded in states different from its origin. Third, congress could preempt this law as energy travels across states, using the instrumentalities of interstate commerce (power lines, highways, etc.). Washington will argue that its statutes only reach companies dealing intrastate. However, power, as shown above, is needed everywhere. Tinkering with the market in energy in one state has major effects cross country. And it certainly has a great effect than the 17 acres of wheat Filburn wanted to grow.
Congress has the power to preempt Wash Rev. Code. ss 196.5 &196.7
Al-Haidi v. State University, and Regents in their individual capacity.
The Federal District Court took jurisdiction over Al-Haidi v. State University & Regents under 28 U.S.C. Section 1343, which provides that a federal court shall have jurisdiction over "any civil action ... to redress the deprivation [of any federal right]." Section 1343 does not exceed Congress' power to confer jurisdiction on the lower federal courts because Article III, provides that the federal judicial power shall extend to federal questions. The federal right Al-Haidi sought to vindicate was his federal right under Title VII to be free from discrimination based on "national origin." Al-Haidi must have alleged that the Resolution violated his federal statutory right to be free from such discrimination.
(1) Did Al-Haidi have standing to challenge the resolution when he was already going to drop out of law school?
Article III requires that before a federal court take jurisdiction, all Justiciability requirements must be met. Chief among these is the doctrine of standing, which requires an injury-in-fact. This injury must be actual or apparent. Several injuries will suffice for standing purposes, including a violation of a Constitutional right, a statutory right, or a common law injury.
It is unclear whether Al-Haidi suffered an injury, since the facts say that a few days before the challenged Resolution, "Al-Haidi formally notified the dean of his intention to withdraw from law school..." Thus, it seems suspect that Al-Haidi was "injured" when the Board of Regents, a few days later, enacted a resolution that would have denied him re-enrollment. I will assume that Al-Haidi still had a right to stay at State University notwithstanding his intent to withdraw. Thus, Al-Haidi will allege an injury to his right to be free from individous discrimination under Title VII. Although he has not yet been denied re-enrollment (see Ripeness, below), an injury seems apparent since the Resolution will deny him re-enrollment.
Next, was the injury caused by state action? Assuming Al-Haidi was going to stay in school, then yes, the injury was caused or will be by the Regents' Resolution, which would have denied Al-Haidi re-enrollment. Is this injury redressible? Assuming, arguendo, that Al-Haidi sues the right official for the correct relief, then the federal court would have the power to enjoin enforcement of the Resolution. If the Resolution is not en-forced, then Al-Haidi will not be denied re-enrollment.
I conclude that Al-Haidi has standing. However, I am bothered by his intent to withdraw from school. I would like to see some facts indicating whether this intent is revocable at will by Al-Haidi. If it was too late for him to stay in school, then Al-Haidi will not suffer an injury by State University and thus would not have standing.
Al-Haidi would still have action for money damages even if he went to Pepperdine but he could not sue for any injunctive relief. You can only sue for an injunction if you face injury imminent or likely to recur. If Al-Haidi left for Pepperdine, then he would not imminently suffer discrimination from State U again and as the Plaintiff in Lyons, would not have standing to challenge
(2) Was the case ripe for review since Al-Haidi would not have been kicked out of school but only "denied re-enrollment"?
According to Abbott Laboratories a case is ripe for review if by denying review the court would work a substantial hardship on the parties and where the issues are of pure law. A case is ripe for review if the withholding of review would work a substantial hardship on the parties and if review will require mostly law. State will argue the case is not ripe since when Al-Haidi brought it, he was still in school. He was not going to be kicked out, only denied re-enrollment. The text of the Resolution supports this, "Any student ... shall be denied enrollment or re-enrollment." Only upon being denied enrollment will this case be ripe for review.
Al-Haidi would counter that this works a substantial hardship on him since he has to plan his life. Whether and when he will graduate law school is very important, since the Bar examinations are scheduled are these dates. Moreover, his Visa will expire soon and he is thus under a 4-year de facto deadline. He doesn't have time to wait for State to expel him from law school. His choice is to either wait for the good graces of the State and hope they do not deny him re-enrollment. If he does not receive this favor, his plans beyond graduation may be ruined. Also, Al-Haidi will argue the case raises matter of pure law and doesn't require a factual development since either the Resolution violates Title VII, or it doesn't.
I conclude the case was ripe for review because it would have worked a substantial hardship on Al-Haidi to deny him review and since the Resolution raised issues of pure law.
(3) Did Title VII abrogate State University's Eleventh Amendment immunity?
A state enjoys absolute immunity from suit in federal court brought by private plaintiffs. "State" includes an arm of the state, such as a university. Will v. Mich. Dept of State Police. Al-Haidi is a private plaintiff and thus it would seem could not sue State University under Title VII.
But, Congress may abrogate a state's sovereign immunity, through the proper exercise of its power to under Section 5 of the 14th Amendment to enforce the protections of Due Process and Equal Protection. For abrogation to be proper, any remedy Congress provides must be proportional and congruent to the evil sought to be remedied. Kimel. To meet this test, there must be a detailed legislative record of a pattern of unconstitutional state conduct. Kimmell; Hibbs. The remedy to this conduct must be congruent and proportional. One caveat is in order: Section 5 does not give Congress to broaden the protections afforded under the 14th Amendment. City of Boerne v. Flores. Finally, the legislation must be clear on its face to enable states to use the legislative process to avoid abrogation.
Title VII reads that "no person shall ... on the ground of race, color, or national origin, be excluded from participation in ... any activity receiving federal assistance." State University undoubtedly receives federal assistance in the form of grants, work-study, etc. Thus, Al-Haidi would argue that Title VII makes clear on its face that it intended to abrogate a state's 11th amendment immunity. On the other hands, states would argue that Congress, when disrupting the federal-state power relationship, must be more clear. State U would argue Congress was unclear here since it did not say, "Title VII is intended to abrogate a state's eleventh amendment immunity." However, such clarity, at least in the context of Congress' enforcement power, has never been required. Title VII seems to, as a matter of statutory interpretation, evidence abrogation. Was abrogation proper?
Next, State University will argue that there is no evidence that states were engaging in widespread discrimination against people based on their national origin. However, race-based and color-based discrimination has been pervasive in society for hundreds of years. It still exists. An adequate record could exist that race-based discrimination is rampant and requires a remedy. However, State University will argue that it discriminated against Al-Haidi on the basis of his national origin. Classifications based on national origin are subject only to a more-focused rational basis level of review. A state could conclude, based on this level of review, that having people whose families may be arms dealers and terrorists pose a threat to the health-safety-, and welfare of its citizens. We should not keep enemies among us. By this tract, it would be less likely that Congress had the power to abrogate under Section 5. It is uncertain what theory Al-Haidi alleged. But we do know that age discrimination, which gets garden-variety rational basis, was not a sufficient evil to remedy under section 5. Garrett. But the Family Medical Leave Act, which addresses discrimination against gender, was a proper abrogation of a state's immunity. Since these acts are similar and since gender gets a lower level of scrutiny than race, we will assume that a sufficient legislative record exists for Al-Haidi to prevail on one theory (race or color) since he is being discriminated against, de facto, for being of the Arab race.
Next, State University will argue that Title VII is not a congruent and proportional remedy? Suits for money damages are appropriate assuming a sufficient legislative record exists to support abrogation. However, punitive damages would be improper.
I conclude that Title VII abrogate State University's sovereign immunity on its text and that Congress was proper to do so under Section 5, 14th Amendment.
(4)Did State University waive its immunity by accepting federal funds?
A state may waive its sovereign immunity. However, there will be no implied waivers. They must be unambiguous. State University did not seem to waive their immunity. Al-Haidi will argue that by accepting federal funds State University Congress, using its Spending Power and power to condition federal funds, persuaded State University to waive its immunity as a condition attached to it since Title VII says that no program "receiving federal financial assistance" may discriminate. State University gets federal money, presumably on its own, but also through federally supported-work study and the loans offered to its students. Under South Dakota v. Dole, Congress may condition the receipt of federal funds so long as it makes the conditions unambiguous; the conditions are rationally related to the expenditure, there is pressure but not coercion; and the expenditure does not violate any other rights. Al-Haidi will not likely prevail on this theory since in Barnes v. Gorman, the Court said some rules of contract will apply. States have traditionally enjoined sovereign immunity and didn't likely seem to waive it by accepting money without clear legislative intent. Maybe the States thought that Congress would enforce Title VII by threatening to pull State's funding. The problem is that the language is unclear.
I conclude no waiver as a condition attached to federal funds.
(5)Was injunctive relief proper under the Tenth Amendment?
Some cases hold that the Tenth Amendment, which reserves to the states all rights not enumerated to the federal government, is nothing but a mere truism or platitude. The scope of the Tenth Amendment is uncertain. However, we do know that the federal government may not commandeer a states legislatures. Since Al-Haidi sued the Regents individually, I presume the relief he sought was to have the Resolution repealed. A federal court may not grant this relief because the federal government, and this includes the judiciary, may not "commandeer" a states' legislature. New York v. United States (striking down "take title" provision that forced legislature to enact law taking title to contaminated lands). The judge thus can't issue an injunction.
Assuming, arguendo, that Title VII did not abrogate State University's sovereign immunity, then under Ex parte Young, Al-Haidi could have sued to enjoin the enforcement of that Resolution by naming in his complaint the chief enforcement officer. In other words, Al-Haidi could have prevented the Dean from kicking him out. Al-Haidi did not do this. Pleading rules regarding this narrow exception to the 11th Amendment. In other words, equitable relief is available. But Al-Haidi sued the wrong guy!
The injunction was improper because federal courts can't commandeer state legislatures (which the Regents is) and because Al-Haidi did not sue the right enforcement official.
(6)Was $100,000 relief proper given the answers to Questions (3) & (4) above?
Assuming, arguendo, that Title VII properly abrogated State University's 11th Amendment immunity, then the award of $100,000 is proper as compensatory relief. Punitive damages would not be proper because states enjoy a near immunity from an award of punitive damages. Congress did not clearly provide this relief, and again, punitive damages would possible be disproportional because such amount could lead to much uncertainty and even bankruptcy the states.
But no money from Regents because they enjoy absolute legislative immunity. A plaintiff can not recover any money damages from Regents individually because they were acting in their legislative capacity when enacting Resolution.
I conclude that Congress could have properly concluded that money damages are a congruent remedy for a victim of invidious discrimination.
(7) Finally, did Regents have the authority to enact Resolution or were they preempted by federal acts?
The Supremacy Clause holds that federal laws and treaties shall be the supreme law of the land. Article II gives the Executive great authority over foreign affairs. Where the federal government broadly occupies a file, state enacts, even if done in the spirit of cooperative federalism, are invalid.
The facts state that the President in the Weekly Proclamation made certain findings of terrorism and how the United States should deal with suspected terrorists and terrorist countries. The State Department lists seven countries as sponsors of terrorism. Yemeni is listed by the State Department as sponsors of terrorism. It is proper for the Executive to make these findings, since the President is the sole organ of federal power.
Thus, Al-Haidi will argue, assuming again he has standing, that Regents went beyond their prerogative by denying students from Yemeni re-enrollment. It would be for the Executive to determine these things. State U. will argue that there were mere augmenting the President and his agents and thus engaging in cooperative federalism. In any event, Courts should presume a lack of preemption. However, this "presumption against preemption" does not apply where States are acting outside their traditional role and where the President or Congress is acting on issues of national important. Factors the Court should apply are a need for one voice of the matter. It is for the President and his agents alone to determine how to deal with foreign nationals. The United States should speak with one voice. The Supreme Court found preemption where a State tried to boycott, as a market participant in commerce, Burma. The States boycott was more severe than Congress' and so it was found invalid as being preempted since Congress has entered the field and did not leave any "room" for the states. Also, California tried to force German insurance companies to make certain disclosures. This power was denied the states because there were treaties and federal laws dealing with German insurance companies compensation of holocaust victims. Applying this line of reasoning, it seems that the State Department occupied the field of dealing with terrorist countries by classifying Yemen as a source of material support to Al-Queda. The President occupied the field by naming names in the Weekly Compilation of Presidential Documents. There is no room left for State U. to enter this field of foreign affairs. Moreover, Al-Haidi has a Visa, more evidence of a federal involvement with foreign nationals and against more evidence damning the Resolution.
I conclude that the Resolution is invalid under a theory of field preemption.
Question No. 3 - Al-Haidi v. State University and Regents, sued in their individual capacities
1. Does the text of the Constitutional allow Section 1343 to stand?
Exceptions Clause Power
Article III creates the United States Supreme Court and gives Congress the power to create, at its pleasure, lower federal courts. The Supreme Court has original jurisdiction over some matters (conflict between states, ambassadors & consuls, e.g.,) that can not be displaced by acts of Congress. Article III says that the Supreme Court shall have appellate jurisdiction over, inter alia, all federal questions. This appellate jurisdiction is subject to such regulations and exceptions as Congress shall from time to time make.
Congress has the power to exclusively control the jurisdiction of the lower federal courts, because the lower federal courts are creations of Congress. What Congress creates, it may destroy. And so it seems Congress can regulate the jurisdiction of the lower federal courts in any way it pleases. Section 1343 is merely an exercise of that power because Congress denied jurisdiction to federal courts over a federal question. But, this power to control the jurisdiction of the Courts is known as the exceptions power. The extent of Congress' Exceptions power is in some dispute. The leading case on the Exceptions Clause is Ex parte McCardle, and thus I will discuss it briefly for you.
In Ex parte McCardle a soldier filed suit alleging the constitutional of his being detained. The Supreme Court granted review to determine the constitutionality of his confinement. In the interim, Congress enacted legislation preventing the Supreme Court from exercising its appellate jurisdiction. The Court, applying this new jurisdictional rule, dismissed McCardle's case saying that it did not have the power to hear the case. However, McCardle was not without the benefit of federal court review. Rather, he was only denied the Supreme Court's appellate review. Commentaries question whether McCardle would allow what Congress did here (discussed below).
At any rate, applying a liberal reading of the Exceptions power, Section 1343 is valid and must stand.
Article III reading in support of broad judicial power.
However, the text of ARTICLE III also says that judicial power shall be bested in one Supreme Court ... and that the judicial power shall extend to all federal questions. And so there is a textual argument that SOME federal court has to have remedy over EVERY federal question. Al-Haidi's case raises a federal question. Therefore, there must be a federal forum for it. Congress would argue that Al-Haidi had his day in Court. All Congress did was deny him appellate review. Although it is a close class, I think the text of the Constitution, applies to THESE facts, precludes what Congress did.
Equal Protection Argument.
Moreover, Congress can not control its jurisdiction to deny equal protection. Al-Haidi will argue that Congress is manipulating appellate jurisdiction to deny him equal protection because of his race, color, or national origin. Congress will say that it doesn't care what color he is. Section 1343 applies only to people based on where they came from. Such actions are subject to a rational basis level of review where Congress acts. Congress will argue that people from these terrorist nations tend to disrupt American court proceedings. Congress will site the Sniper trial as an example. Thus, Congress was rational to keep terrorists out of Federal court. The rational basis test is easy for Congress to apply, so even if Congress is denying Al-Haidi equal protection, it is within its prerogative.
Al-Haidi would lose an equal protection argument grounded on national origin but would win if he could frame it under race.
2. Did Congress violate principles of Separation of Powers when it amended 28 U.S.C. Section 1343 to control the result of a case?
Separation of powers imposes structural restraints on the coordinate branches of government. Although the text of Article III seems to give Congress the power to amendment Section 1343 as it did here, the question remains: Did that violate Separation of Powers?
Section 1343 violated Separation of Powers because Congress usurped the judicial function by manipulating jurisdiction to reach a certain result in the case.
3. Is Regulation 241.5 ("Regulation") an improper exercise of legislative power by the Executive?
regulation is a law. It is binding on parties. It controls the acts of all "nonimmigrant alien post-secondary school students..." Is this a violation of the nondelegation doctrine?
Article I says that "all legislative powers herein granted" shall be vested in the legislature. A strict reading of this would preclude Executive officials, as the Attorney General is here, from enacting legislation. Indeed, Article II says that the Executive shall Take Care that the laws are executed. Nowhere in the Constitution is lawmaking or rulemaking conferred upon the executive. However, the court has taken a functional approach to nondelegation and thus allows congress to delegate some of its legislative powers to the executive so long as it articulate an intelligible principle. Almost anything meets this test. Some examples include "public interest" for the "public good," "just and reasonable" and "unfair competition." The Immigration and Nationality Act (INA) directs the Attorney General to "establish such regulations" as he "deems necessary for carrying out his authority under the provisions of the Act." The operative language here is "deems necessary." Some might argue that this goes to far because it does not set out a principle, but rather gives the Attorney General the power to anything. However, "deems necessary" is probably an intelligible principle since the AG can do what he "deems necessary" subject to "the provisions of this Act."
4. Does the INA, with its reporting and abeyance requirements, amount to a legislative veto?
The INA which gives the AG the power to deport aliens but only after reporting "to the House Judiciary Committee" and after it is "stayed for 30 days for Congressional hearing," does not amount to a legislative veto, since it does not grant Congress the power to override the AG's decision. Moreover, AG's are regularly required to report to Congress on its findings. The Feeney Amendment to the U.S.S.C. requires Judges to report as well. However, the 30 day stay of the AG's order may sabotage this law because the AG should either have the power to deport, subject only to an intelligible principle, or not have the power to report. This 30 day stay amounts to a de facto legislative veto, violating the requirement that all laws meet Bicameralism (both houses must agree to same version) and Presentment (presented to the President for his approval or veto).