TM
THE BAR
CONSTITUTIONAL LAW
LAW SCHOOL AND BAR EXAMS
NAILING THE BAR How to Write Essays for Constitutional Law Law School and Bar Exams
Table of Contents
CHAPTER 1: THE IRAC APPROACH ..................................................................................................................... 1 CHAPTER 2: SPOT AND OUTLINE THE ISSUES!................................................................................................ 2 CHAPTER 3: ISSUE SPOTTING ............................................................................................................................... 5 CHAPTER 4: AVOID NON-ISSUES, RED HERRINGS AND SPLITS.................................................................. 7 CHAPTER 5: ORGANIZING THE ANSWER .......................................................................................................... 9 CHAPTER 6: ISSUE STATEMENT STRUCTURE................................................................................................ 10 CHAPTER 7: BUDGETING TIME........................................................................................................................... 12 CHAPTER 8: PREFACE RULES WITH CITATION OF AUTHORITY ............................................................ 14 CHAPTER 9: NAILING THE ELEMENTS - THE HEART OF THE ESSAY .................................................... 15 CHAPTER 10: DON'T GIVE "CONCLUSIONARY" ANALYSIS....................................................................... 19 CHAPTER 11: DON'T "RESTATE FACTS".......................................................................................................... 20 CHAPTER 12: AVOID "PADDLING ".................................................................................................................... 21 CHAPTER 13: TEST TAKING MECHANICS........................................................................................................ 22 CHAPTER 14: ESSAY ANSWER FORMATS WHAT TO SAY AND HOW TO SAY IT............................... 24 FOUR PLOYS TO SAVE YOU ON AN EXAM: .............................................................................................................. 25 CHAPTER 15: ANSWERING CONSTITUTIONAL LAW QUESTIONS ........................................................... 26 Practice Question 15-1 ......................................................................................................................................... 35 Practice Question 15-2 ......................................................................................................................................... 36 Practice Question 15-3 ......................................................................................................................................... 37 Practice Question 15-4 ......................................................................................................................................... 38 Practice Question 15-5 ......................................................................................................................................... 39 Practice Question 15-6 ......................................................................................................................................... 40 CHAPTER 16: CONCLUSION.................................................................................................................................. 41 APPENDIX A: RULES AND DEFINITIONS .......................................................................................................... 42 APPENDIX B: SAMPLE ANSWERS ....................................................................................................................... 49 Sample Answer 15-1: Equal Protection, Substantive and Procedural Due Process ............................................. 49 Sample Answer 15-2: Justiciability, Equal Protection, Due Process ................................................................... 52 Sample Answer 15-3: Commerce Clause, Market Participant, 11th and 21st Amendments................................ 55 Sample Answer 15-4: Enumerated Powers, Rational Relation, Prior Restraint ................................................... 58 Sample Answer 15-5: Justiciability of Moot Cases, Privacy Rights .................................................................... 61 Sample Answer 15-6: Establishment Clause, Exercise Clause ............................................................................ 64 INDEX .......................................................................................................................................................................... 67
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NAILING THE BAR How to Write Essays for Constitutional Law Law School and Bar Exams
Chapter 14: Essay Answer Formats WHAT to Say and HOW to Say It
Before you walk into a law school or Bar exam, you MUST be able to recite, verbatim, prepared responses to a wide variety of potential questions. This is especially important in classes on Constitutional Law. If you don't have prepared responses memorized for issues such as Equal Protection, you are dead, dead, dead. You do not have enough time to think up a good response on the spot. You MUST be able to recite, from memory, the definitions and rules of THE 14TH AMENDMENT EQUAL PROTECTION DUE PROCESS FIRST AMENDMENT COMMERCE CLAUSE JUSTICIABILITY
How? You must develop this ability by repetition and practice. You must memorize and be prepared to recite a significant portion of the material presented in the following Issues and Answers if you are to succeed in passing your exams in Constitutional Law. The following chapters provide you with EVERY ISSUE, AUTHORITY, DEFINITION and RULE of law you need to be prepared for most questions. You can fake anything else. Important Stuff. As you read through the following issue and answer formats, you may be overwhelmed with the feeling that, "There ain't no way in Hell I can memorize all of this." This is a natural reaction. But some of the following is more important than the rest, and the important portions will be identified and marked for you like this: Important! As for the rest, you should at least be able to fake it. How to Memorize. The way to memorize the important portions of the following is like memorizing the Gettysburg Address -- read it, recite into a tape recorder, and play it back against the text. Do it naked if you have to. Sing it if you have to. Just do it. The Text Format Used Here. In the following issue and answer formats, the text you should know and be prepared to produce is presented in italics. Additional information, comments and notes are presented in plain text. Fake the Rest. You can't memorize everything. You can't know everything. You are human. So just listen in class, read a course outline and fake anything that is not in this book. But KNOW the definitions and rules that this book says are Important!
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NAILING THE BAR How to Write Essays for Constitutional Law Law School and Bar Exams
autonomy, family matters, child rearing, marriage, contraception, marriage, and procreation. b. Freedom of expression, religion and association are NOT of interest here. Those issues should be discussed as 1st Amendment issues, not as due process issues. c. Civil Procedure and Criminal Procedure rights (e.g. right to jury trial, counsel, etc.) are NOT of interest here. Those are not Constitutional Law issues. 7. After considering 1st Amendment rights, equal protection for suspect and quasi-suspect classes, and due process as to fundamental rights consider procedural due process. Did private parties get notice of a pending government administrative action and opportunity for a hearing? Remember due process is a fundamental right, and that includes procedural due process. 8. The last possible issue is whether a government action lacks any logical relationship to a legitimate government interest because it is overbroad, under-inclusive, fatally vague, arbitrary or simply pointless. 9. The CALL of the question may ask about the facial legality of a law compared to its legality as applied. Consider whether the law just looks proper but has been adopted for or is being used for an improper purpose. Balance test for due process and equal protection. Your answer should focus on balancing of the rights of the individual with the needs of society and the historical involvement and role of government. Non-Fundamental Rights. The rights to weapons, education, employment, housing, profit, rent, use of property and welfare are not fundamental, but the right to due process and equal protection as to the denial or infringement of any of those rights IS fundamental. Extension of fundamental rights. Originally the Bill of Rights only guaranteed due process by and protected 1st Amendment rights from the federal government, and there was no guarantee of equal protection at all. Nothing prohibited States from infringing on freedom of expression and religion. The 14th Amendment was adopted in 1873 to prohibit States from denying due process and equal protection but those terms were not defined. Eventually those terms came to incorporate various provisions of the Bill of Rights in a piecemeal manner. States were eventually prohibited from denying freedom of expression, religion and some other rights guaranteed in the Bill of Rights, but some provisions of the Bill of Rights still do not clearly restrict the States. So when State actions are at issue you might say certain guarantees in the Bill of Rights have been extended to the States by the 14th Amendment. At the same time the equal protection guaranteed by the 14th Amendment has been deemed to be part of the due process referred to in the 5th Amendment. So when a federal denial of equal protection is an issue you might say equal protection is guaranteed by the 5th Amendment by judicial interpretation. Be Prepared. You MUST be prepared to give a good recitation of rules for 1) JUSTICIABLE actions, 2) the COMMERCE CLAUSE, 3) EQUAL PROTECTION, 4) SUBSTANTIVE DUE PROCESS, 5) PROCEDURAL DUE PROCESS, 6) FREEDOM OF RELIGION, and 7) FREEDOM OF SPEECH. 27
Index
Index
2
21st Amendment, v, 5, 30, 42, 55, 56 2nd Amendment, 4, 13, 36, 42, 53
G
General Welfare, 26
4
4th Amendment, 46
J
Jurisdiction of the Courts, 28, 45, 55, 58, 61
8
8th Amendment, 44
L
Lemon Test, 31, 47, 64 Lopez, Commerce Clause, 4, 13, 29
9
9th Amendment, 26, 44, 45
M
Market Participant, Commerce Clause, 55, 56, 57 Marriage, Right to Personal Autonomy, 45 Mathews v. Eldridge, 15 Mullane, procedural due process, 33, 46, 51, 54
A
Abstention, 5 Aggregation Doctrine, 16, 42, 43 Alcohol, State regulation, v, 5, 30, 42, 55, 56
N
Narrowly Tailored, Freedom of Expression, 31, 48 Naturalization, Powers of Congress, 52
B
Balance tests, 27
O
Overbroad Laws, Freedom of Expression, 30, 59
C
Commerce Clause, 29, 30, 43, 55 Content Neutral, 48 Cooley Doctrine, 43
P
Penumbra of the Constitution, 26, 44, 45 Powers of Congress, 29, 58 Powers of Congress, immigration, 4, 13, 36, 52 Powers of Congress, Indian tribes, 30 Prior Restraint, Freedom of Expression, 30, 59 Privacy, Right to Personal Autonomy, 9, 27, 32, 33, 46, 59, 62 Privileges and Immunities Clauses, 46 Procedural Due Process, 33 Public Forums, Freedom of Expression, 26, 30, 47, 48, 59
D
Dormant Commerce Clause, 55 Due process, procedural, 33 Due Process, substantive, 33, 50
E
Equal Protection, sexual orientation, 38, 59, 60 Equal Protection, Suspect Groups, 6, 9, 11, 26, 27, 32, 44, 46, 48, 49, 50, 53, 54, 58, 59, 61 Establishment Clause, freedom of religion, v, 64
Q
Quasi-suspect Groups, 32, 44, 59
F
Federal Court Jurisdiction, standing, 5 Federal Courts, suits against States, 29, 40, 57, 64 Federal Preemption, 30, 55 Free Exercise Clause, freedom of religion, 31, 47, 65 Freedom of Expression, 1st Amendment, 27 Freedom of Expression, underinclusive, 26 Freedom of Religion, 1st Amendment, 27, 31 Freedom of Religion, Smith and Yoder Test, 31, 47, 65 Fundamental Rights, defined, 32, 59
R
Rational Relation, underinclusive, 26 Right to bear arms, 42 Right to Hearing, procedural due process, 33, 44, 46 Right to Personal Autonomy, 9, 27, 32, 33, 46, 59, 62 Right to Personal Autonomy, marriage, 45 Rights Reserved to States, People, 29, 58 Rights, speech, religion, assembly, 42
S
Search and seizure, 46
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NAILING THE BAR How to Write Essays for Constitutional Law Law School and Bar Exams
Sexual Orientation, 38, 59, 60 Standing, 5 State Sovereignty, 26, 57 States, due process and equal protection, 42 Stripping Doctrine, 57 Substantive Due Process, 33, 50 Suspect Groups, 32, 59
U
Underinclusive, 26
V
Vague laws, Freedom of Expression, 30, 59
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WHAT to Say and HOW to Say it on CONSTITUIONAL LAW Law School and Bar Exams * The MOST COMMONLY TESTED ISSUES and RULES AND DEFINITIONS to Help Answer Them! * How to SPOT ISSUES! * How to BUDGET TIME on Exams! * CONCLUSIONARY Answers and How to Avoid Them! * 6 PRACTICE QUESTIONS with SAMPLE ANSWERS!
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