Siegel's CONSTITUTIONAL LAW Essay and Multiple-Choice Questions and Answers Fifth Edition BRIAN N. SIEGEL J.D., Columbia Law School Revised by Ronald J. Krotoszynski, Jr. John S. Stone Chair, Director of Faculty Research, and Professor of Law The University of Alabama School of Law Copyright © 2012 CCH Incorporated. Published by Wolters Kluwer Law & Business in New York. Wolters Kluwer Law & Business serves customers worldwide with CCH, Aspen Publishers, and Kluwer Law International products. (www.wolterskluwerlb.com) No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or utilized by any information storage or retrieval system, without written permission from the publisher. For information about permissions or to request permissions online, visit us at www.wolterskluwerlb.com, or a written request may be faxed to our permissions department at 212-771-0803. To contact Customer Service, e-mail [email protected], call 1-800-234-1660, fax 1- 800-901-9075, or mail correspondence to: Wolters Kluwer Law & Business Attn: Order Department PO Box 990 Frederick, MD 21705 The authors gratefully acknowledge the assistance of the California Committee of Bar Examiners, which provided access to questions on which some of the essay questions in this book are based. Printed in the United States of America. 1 2 3 4 5 6 7 8 9 0 E-ISBN 978-1-4548-2770-2 This book is intended as a general review of a legal subject. It is not intended as a source of advice for the solution of legal matters or problems. For advice on legal matters, the reader should consult an attorney. About Wolters Kluwer Law & Business Wolters Kluwer Law & Business is a leading global provider of intelligent information and digital solutions for legal and business professionals in key specialty areas, and respected educational resources for professors and law students. Wolters Kluwer Law & Business connects legal and business professionals as well as those in the education market with timely, specialized, authoritative content and information-enabled solutions to support success through productivity, accuracy, and mobility. Serving customers worldwide, Wolters Kluwer Law & Business products include those under the Aspen Publishers, CCH, Kluwer Law International, Loislaw, Best Case, ftwilliam.com, and MediRegs family of products. CCH products have been a trusted resource since 1913 and are highly regarded resources for legal, securities, antitrust and trade regulation, government contracting, banking, pension, payroll, employment and labor, and healthcare reimbursement and compliance professionals. Aspen Publishers products provide essential information to attorneys, business professionals and law students. Written by preeminent authorities, the product line offers analytical and practical information in a range of specialty practice areas from securities law and intellectual property to mergers and acquisitions and pension/benefits. Aspen's trusted legal education resources provide professors and students with high-quality, up-to-date and effective resources for successful instruction and study in all areas of the law. Kluwer Law International products provide the global business community with reliable international legal information in English. Legal practitioners, corporate counsel, and business executives around the world rely on Kluwer Law journals, looseleafs, books, and electronic products for comprehensive information in many areas of international legal practice. Loislaw is a comprehensive online legal research product providing legal content to law firm practitioners of various specializations. Loislaw provides attorneys with the ability to quickly and efficiently find the necessary legal information they need, when and where they need it, by facilitating access to primary law as well as state-specific law, records, forms and treatises. Best Case Solutions is the leading bankruptcy software product to the bankruptcy industry. It provides software and workflow tools to flawlessly streamline petition preparation and the electronic filing process, while timely incorporating ever-changing court requirements. ftwilliam.com offers employee benefits professionals the highest quality plan documents (retirement, welfare, and non-qualified) and government forms (5500/PBGC, 1099 and IRS) software at highly competitive prices. MediRegs products provide integrated health care compliance content and software solutions for professionals in healthcare, higher education, and life sciences, including professionals in accounting, law and consulting. Wolters Kluwer Law & Business, a division of Wolters Kluwer, is headquartered in New York. Wolters Kluwer is a market-leading global information services company focused on professionals. Introduction Although law school grades are a significant factor in obtaining a summer internship or entry position at a law firm, no formalized preparation for finals is offered at most law schools. For the most part, students are expected to fend for themselves in learning how to take a law school exam. Ironically, law school exams may bear little correspondence to the teaching methods used by professors during the school year. At least in the first year, professors require you to spend most of your time briefing cases. This is probably not great preparation for issue-spotting on exams. In briefing cases, you are made to focus on one or two principles of law at a time; thus, you don’t get practice in relating one issue to another or in developing a picture of an entire problem or the entire course. When exams finally come, you’re forced to make an abrupt 180-degree turn. Suddenly, you are asked to recognize, define, and discuss a variety of issues buried within a single multi-issue fact pattern. Alternatively, you may be asked to select among a number of possible answers, all of which look inviting but only one of which is right. The comprehensive course outline you’ve created so diligently, and with such pain, means little if you’re unable to apply its contents on your final exams. There is a vast difference between reading opinions in which the legal principles are clearly stated and applying those same principles to hypothetical essay exams and multiple-choice questions. The purpose of this book is to help you bridge the gap between memorizing a rule of law and understanding how to use it in an exam. After an initial overview describing the exam-writing process, you see a large number of hypotheticals that test your ability to write analytical essays and to pick the right answers to multiple-choice questions. Read them—all of them! Then review the suggested answers that follow. You’ll find that the key to superior grades lies in applying your knowledge through questions and answers, not through rote memory. GOOD LUCK! Table of Contents Preparing Effectively for Essay Examinations The “ERC” Process Issue-Spotting How to Discuss an Issue Structuring Your Answer Discuss All Possible Issues Delineate the Transition from One Issue to the Next Understanding the “Call” of a Question The Importance of Analyzing the Question Carefully Before Writing When to Make an Assumption Case Names How to Handle Time Pressures Formatting Your Answer The Importance of Reviewing Prior Exams As Always, a Caveat Essay Questions Question 1 (Second Amendment) Question 2 (Political Questions, Justiciability) Question 3 (Commerce Clause, Privileges & Immunities Clause of Art. IV, §2, Standing) Question 4 (Establishment Clause, Standing) Question 5 (First Amendment) Question 6 (Due Process) Question 7 (Standing, Establishment Clause, Equal Protection) Question 8 (First Amendment, Due Process, Establishment Clause, Equal Protection) Question 9 (First Amendment, Ripeness, Due Process, Rehabilitation) Question 10 (Relevancy, Hearsay, Impeachment, Privileges, Opinion) Question 11 (Due Process, First Amendment, Procedural Due Process) Question 12 (Congressional Power, Equal Protection, Due Process) Question 13 (First Amendment, Due Process) Question 14 (Dormant Commerce Clause, Preemption, Due Process, Tonnage Clause) Question 15 (Procedural Due Process, Supreme Court Review, First Amendment, Equal Protection) Question 16 (Abstention, Standing, Supremacy Clause, Equal Protection, Dormant Interstate Commerce Clause, Due Process) Question 17 (Impairment of Contracts, Cruel and Unusual Punishment, First Amendment, Substantive Due Process, Equal Protection) Question 18 (Due Process, Discrimination Against Interstate Commerce, Equal Protection) Question 19 (First Amendment, Abstention, Standing, State Action, Equal Protection) Question 20 (First Amendment, Free Exercise Clause, Procedural Due Process, Equal Protection, Dormant Commerce Clause) Question 21 (Supremacy Clause, Congressional Powers, Preemption, Nondelegation, Equal Protection, Supremacy Clause) Question 22 (State Action, Establishment Clause, Equal Protection, Due Process, Procedural Due Process) Question 23 (Standing, Presidential Authority, Due Process, Executive Privilege) Question 24 (State Action, Standing, Equal Protection, Due Process, Procedural Due Process, Establishment Clause) Question 25 (Standing, Congressional Powers, Privileges and Immunities Clause, Discrimination Against Interstate Commerce, Equal Protection, Procedural Due Process) Question 26 (Abstention, Bill of Attainder, First Amendment, Incorporation, Fifth Amendment) Question 27 (Establishment Clause, First Amendment, Free Exercise Clause) Question 28 (First Amendment, Fourteenth Amendment) Question 29 (Contracts Clause, Takings Clause, Equal Protection, Substantive Due Process) Question 30 (Commerce Clause, Taxing and Spending Powers, Necessary and Proper Clause, Tenth Amendment) Question 31 (Standing, Right of Privacy, Substantive Due Process, Positive and Negative Constitutional Rights, Equal Protection) Question 32 (First Amendment, Standing) Essay Answers Answer to Question 1 Answer to Question 2 Answer to Question 3 Answer to Question 4 Answer to Question 5 Answer to Question 6 Answer to Question 7 Answer to Question 8 Answer to Question 9 Answer to Question 10 Answer to Question 11 Answer to Question 12 Answer to Question 13 Answer to Question 14 Answer to Question 15 Answer to Question 16 Answer to Question 17 Answer to Question 18 Answer to Question 19 Answer to Question 20 Answer to Question 21 Answer to Question 22 Answer to Question 23 Answer to Question 24 Answer to Question 25 Answer to Question 26 Answer to Question 27 Answer to Question 28 Answer to Question 29 Answer to Question 30 Answer to Question 31 Answer to Question 32 Multiple-Choice Questions Questions 1 through 138 Multiple-Choice Answers Answers to Questions 1 through 138 Table and Index Table of Cases Alphabetical index, listing issues by the number of the question raising the issue