NAILING THE BAR

NAILING

THE BAR TM

HOW TO WRITE ESSAYS FOR

CONSTITUTIONAL LAW LAW SCHOOL AND BAR EXAMS

WHAT to Say and HOW to Say It!

Tim Tyler Ph.D. Attorney at Law

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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Chapter 3: Issue Spotting

Chapter 3: Issue Spotting Since you lose points for every required issue you fail to discuss, it is CRITICAL TO SPOT all of the issues. BUT DON'T waste time discussing issues that do not really exist. This is easier said than done and introduces a certain level of sadism peculiar to law school. The grader/question writer always wants you to discuss certain required issues. But the graders fall into two basic schools. The first, rational school, simply states the issues to be discussed in the call of the question. The second, less rational and often sadistic school of question writers uses only hints about the intended issues. Sometimes the "hints" are rather obvious. Other times they are so subtle the student has to be a psychic. At this extreme this approach is called HIDING THE BALL, and it is the stuff of law school horror stories. The HIDE THE BALL question utilizes words and fact patterns that only vaguely suggest issues. This is like a code language known only to law school professors. The following is a list of "code" words and facts that are often used to indicate intended issues. Issue Spotting Hints CONSTITUTIONAL LAW: Issue Area and Coded Hint:

Intended Issue:

JUSTICIABILITY 1. Not yet affected: 2. No longer affected: 3. Pending actions in state courts: 4. Pending criminal actions: 5. Congress vs. Presidency: 6. Action to help others: 7. Public support of religion:

Unripe cause of action? Moot case? Abstention doctrines? Abstention doctrines? Political abstention? Lack of standing? Taxpayer standing?

ENUMERATED POWERS 8. Crime control: 9. Health, safety and welfare: 10. Foreign affairs, treaties, diplomats: 11. Foreign commerce: 12. Treaties:

Reserved to states? Reserved to states? Reserved to executive? Reserved to Congress? Reserved to federal government?

COMMERCE CLAUSE 13. Quarantines, inspection stations: 14. State owned business: 15. Traffic safety regulations: 16. Self use production: 17. Price supports for certain goods: 18. Domestic purchase requirements: 19. Restrictions on foreign goods: 20. Alcoholic beverages?

Commerce clause? Market participant exception? Unreasonable restraint? Aggregation doctrine? Commerce clause? Commerce clause? Market participant? Commerce clause? 21st Amendment exception?

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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

Chapter 15: Answering Constitutional Law Questions Use Professor's Rule Statement. More than any other subject in law school, Constitutional Law essays demand that you memorize a prepared statement of the law. If your professor provides you with such a prepared statement, such as a statement to explain Equal Protection, use the professor’s statement and do not use the statement presented here. Logical order for exams. Constitutional Law exam questions always concern some governmental action such as a new law, statute, act, or government action based on existing law. The question will always present a dispute between 1) federal government and private parties, 2) between State governments and private parties, or 3) between States and the federal government. Often the facts will say that one of the parties has filed an action in federal court. 1. If an action has been filed in federal court: a. Consider whether it is justiciable under Article III. b. And if the action is filed by private parties against States, is it barred by the 11th Amendment? 2. If the dispute concerns a federal law or action, a. Is the federal action within the enumerated powers of Congress? i. No laws “for the general welfare”. b. Is the federal action justified by the Commerce Clause? i. Is there a clear nexus between interstate commerce and the law? ii. No laws “for general welfare” masquerading as trade restrictions. c. If a State is impacted by a federal law, does it violate state sovereignty? 3. If the dispute concerns a State law or action, a. Is it barred by the enumerated prohibitions of the Constitution? b. Does it violate the Commerce Clause? Unreasonably burdensome? 4. If a government act infringes on 1st Amendment rights (expression, religion, association, petition government) turn to discussion of 1st Amendment and forego discussion of equal protection and/or due process. a. Freedom of expression: i. Is the government action over-broad, underinclusive or a prior restraint? ii. Is protected speech being infringed? Obscenity, etc.? iii. Speech in a public forum or on private property? iv. Is the restriction a valid, content-neutral time-place-manner restraint? b. Freedom of religion: i. For the establishment clause cite the Lemon test (or similar law) ii. For the establishment clause cite Smith and Yoder (or similar law) c. Freedom of association and right to petition government are seldom tested 5. If not a 1st Amendment issue, does a government action discriminate against a suspect or quasi-suspect class? If so, focus on Equal Protection first and either forgo discussion of due process completely or give it second consideration. 6. If not a suspect or quasi-suspect class, is it a fundamental right being infringed? If so, focus on Substantive Due Process first and either forgo discussion of equal protection completely or give it second consideration. a. The fundamental rights of interest here are due process, equal protection and those rights within the “penumbra” of the Constitution as referred to in the 9th Amendment: voting, traveling, privacy (to be left alone by government), personal 26

Chapter 15: Answering Constitutional Law Questions

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

G

21st Amendment, v, 5, 30, 42, 55, 56 2nd Amendment, 4, 13, 36, 42, 53

General Welfare, 26

J

4

Jurisdiction of the Courts, 28, 45, 55, 58, 61

4th Amendment, 46

L

8

Lemon Test, 31, 47, 64 Lopez, Commerce Clause, 4, 13, 29

8th Amendment, 44

9

M

9th Amendment, 26, 44, 45

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

O

Balance tests, 27

Overbroad Laws, Freedom of Expression, 30, 59

C

P

Commerce Clause, 29, 30, 43, 55 Content Neutral, 48 Cooley Doctrine, 43

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

R

F

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

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

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! This is what LAW STUDENTS are saying about NAILING THE BAR — I did exactly what you said to do. And I passed! — Vijay D. Nailing the Bar was all I could afford to prepare for the July 2001 Bar . I passed on my first attempt. — Thomas N., Deputy City Attorney I didn’t go to an ABA school and English is a second language for me. But I passed the Bar! Thanks — Shah P. I passed! THANKS! Your approach taught me a LOT — Annie B. "Nailing the Bar" gave me the edge I needed to pass the Bar the first time — Jay I purchased your outline set :-) -- Great stuff! — Rueben B. I used Nailing the Bar strategies on every essay! You’re the reason I am a lawyer now. You’re the BOMB! — Katie N. Before. I didn't have a clue how to spot issues or IRAC! Now I FINALLY GET IT!! — Shirley S. I passed! Your method pulled me through. I’ve never felt so humble and grateful. Thanks. — Dan G. Received my letter today. I passed - got an A. You rock!! — Jennifer I passed. In fact, Q4 of the Bar’s Selected Answers was MY essay. Your method works!! — Steve D. Thanks for writing Nailing the Bar. It earned me a B in my class — Dr. Brenda P. With Nailing the Bar I am able to understand IRAC and issue spotting for the first time — Beverly W. "Nailing the Bar" was the best guide I have found. Using it I passed the Bar in one try — Sabrina

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