General Advice for Exam:
Approach to questions on Hall’s exam
use the statement of doctrine as the basis for Analysis & Arguments
Offer analysis of the facts and make arguments for each side
discuss each alternative
CONCLUSIONS are not nearly as important as DISCUSSING ALTERNATIVESProc. Due Process – alternativesEP & IFR – will not know if the class is a suspect, quasi-suspect, or non-suspecthe is not going to give fact patterns that we have seen before
Double Testing is Unlikely
does not intend to test any topic more than once on the exam
Statute Question – each Section of the statute will be tied to a different power
EXCEPT purpose section – it is there for the powers that require Congress to state a purpose in order for law to be valid
identify which power corresponds with each section
Make a precise, but complete Statement of the Doctrine
support that government needs to support its positiondeferenceover-inclusion/under-inclusion
i.e. – rational basis reviewSpot the Dispute (issue)
MEMORIZE THIS FOR EXAM CHECKLIST
Equal Protection & Implied Fundamental Rights
State the Equal Protection Claim
Establish a Suspect Class
a) textual – constitution must explicitly say the right exists
b) originalism – look to original intent of founding fathers
c) strict constructionalist –
a) judicial activists
b) evolving/common law – the law is evolving & common law cases build upon each other
[Gender] 9. A government action is invalid unless the government can demonstrate that there is an important government interest and the government action is substantially related to achieving that interest.
a) some over/under-inclusion permissible, but not much
b) close fit between ends/means, but not a perfect fit
c) burden of proof is on the government
d) presumption that policy is unconstitutional
e) the reviewing court must determine whether the justification for using the classification is “exceedingly persuasive”
6. Traditional Strict Scrutiny – Facial & Detrimental OR Facially Neutral & Detrimental
a) A Government action is invalid unless the government demonstrates a compelling interest and that the action is narrowly-tailored to achieve that interest.
1. feasible alternatives
3. presumption against the government action – the action is presumed unconstitutional under strict scrutiny
4. the government action must be a perfect fit between the ends/means
5. the compelling interest cannot be based upon a post hoc justification – the compelling interest had to be intended at the time the action was passed
b) Arguments for each side on how to win under this test
7. Relaxed Strict Scrutiny – Affirmative Action Rules – Facial & Allegedly Beneficial
a) The express use of racial classifications may be exempted from strict scrutiny for the sole purpose of eliminating and remedying the vestiges of prior de jure (legal) discrimination (as opposed to social discrimination).
1. Remedying prior discrimination is a compelling interest if:
The identified discrimination was specific and local (by particular entities committed against particular victim
re has been curtailment of the political process for members of the class. Does the classification tend to curtail the political process for members of the class? (look at the actual statute in question – does IT limit involvement)
e) Whether the classification is a basis for stereotypes & prejudice. Does the government use of this classification perpetuate negative stereotypes and prejudice towards the group?
f) Is the classification based upon immutable traits?
g) The irrelevance of the classification in decision-making. Is the classification relevant to the government action or purpose?
h) The morality and evolving norms of society relative to the class.
3. [Arguments] apply factors to the facts in arguments for/against suspect class.
1. Plaintiff was treated differently than other people similarly situation except for [__] characteristic by [__government action__]. (frame the claim in terms of the broad class)
EP & IFR
Short Essay Topics
A. Procedural Due Process
B. Congressional Power Questions
1. Commerce Clause
2. Spending/Conditional Spending
3. Regulation of the States
5. Section 5
6. Abrogation of State Sovereign Immunity
7. Control of Jurisdiction of the Federal Courts
C. Dormant Commerce Clause
E. Executive Power
– 90 minutes – ½ of exam – 90 minutes – ½ of exam