Students have asked to see previous exam questions. The short answer questions below will indicate what I consider important enough to test on, but don't expect to see short answer questions any more.
Too many students messed up, and that made me feel bad when I was trying to do 'em a favor by asking easy warmup questions so they'd have more time for the essay questions that came next. The students were making me look bad. I knew I'd taught what I was testing on. Where were they? I want students to make me look good.
A few students got all of the short-answers right and several all but one or two. That showed me I wasn't off-base as to the material. Perhaps I expected too much of the students. I'll try not to let that happen again.
This is material you have to know cold in a Con-law class. It's basic framework stuff.
Students do better with essay questions.
One problem with short answer questions is that it is challenging to compose questions as to which there is only one correct short answer. However, that's what I tried to do below by providing a definition and asking the student to provide the label for the Con-law idea it described. I was surprised at how many blew it.
You are examined on the law. The law is what the Supreme Court decided was the law. It is not the dissent or the history or the context that we use in class to creep up on and surround what we think the law is.
A law exam is a bit like a math exam in terms of relevancy. In other words, if the question calls for multiplication, you don't get credit for explaining all you've ever read about subtraction. If the Con-law question calls for a discussion of the merits, you don't want to waste time describing standing or procedure.
In essay questions, first read the facts given, and then the "call of the question." That's the part that asks you to do something, such as to discuss whether a certain party had standing, whether the question was justiciable, or to discuss the merits.
One fact question may have a question calling on you to discuss all three, or only one or two. Read the *&#! question before you start writing.
Use scrap paper to list what you want to say in any old order first. Then organize it in the order you want to present it. Only then start writing in your final answer blue book.
Sloppy writing promotes low grades, because if you write in a muddled fashion in terms of readability of handwriting, organization, and sentence composition, what does that say about your thinking?
If you can't compose a sentence how am I supposed to make sense out of what you are hoping I think you said? I may be a mind reader, but I might not be up to your challenge.
Writing a few practice sentences might help. For example, after you take the short answer test below, let some time go by and then take the list of short answers and write down their definitions without first refreshing yourself as to my definitions. See if your's make sense. There is certainly more than one way to define a legal concept, depending on context and circumstance.
In a law exam, you are generally expected to state a general rule first and then try to square it with the fact-set. This usually requires some qualification to your general rule, but that's fine. State the general rule, and then state how applies to the current facts to reach a decision upholding or rejecting constitutionality for the reasons you argue.
Caveat the temptation to jump so fast to the conclusion that you hardly realize all the stepping stones you must've hit to get there. We want to see mentioned those stepping stones, especially the big easy first ones. Getting there is half the fun.
If all we wanted was your conclusion, that would be too easy. All you'd have to do is flip a coin: Up for Constitutional, Down for Un-.
So give us the reasoning and then flip a coin.
November 22, 2003
CONLAW MIDTERM EXAM
END OF 1st SEMESTER
2003-2004
SAN FRANCISCO LAW SCHOOL
ROBERT SHERIDAN, PROFESSOR
SHORT ANSWER QUESTIONS:
1. The doctrine of judicial review, assumed by the U.S. Supreme Court in Marbury v. Madison (1803), John Marshall, Chief Justice, writing the opinion, held that the Supreme Court (and by extension the lower courts) has the power to declare acts of Congress, and by further extension, government acts in general, what? __________________________.
2. In the Constitution, the Thirteen Original States set up (“constituted”) a system of government with two major component parts, the States, on the one hand, and the central government (aka the national or federal government) on the other. Issues arising out of this built-in conflict of interest concerning power sharing have a common name. These are called issues of ______________________.
3. The Framers also set up a tripartite system of national power sharing in which the central government was divided into three component parts, the Legislature, the Executive and the Judiciary. Issues arising out of this arrangement whereby the division is imperfect or overlaps and there may be some stepping on each other’s toes on questions of which branch has what power and to what extent vis-a-vis another branch have a common name. These are called ________________________________ issues.
4. One of the major powers the States granted Congress is the Commerce Power contained in Art. I, Sec. 8, Clause 3 of the Constitution, which is “the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” When a state regulates by passing laws having an effect on interstate commerce, we look to see whether Congress has acted (passed laws) covering the same subject. If Congress has not acted, but “fallen asleep at the switch” so to speak, the states may regulate, subject to some limitations. The power or right of the states to regulate where Congress has “slept” has a common name in constitutional law. This is called the _______________ Commerce Clause.
5. Where Congress HAS passed a law regulating interstate commerce and either indicated its intent to fully occupy the field or where compliance with the state law would necessarily violate the federal law, we say that the state law is void under the Supremacy Clause because the state law has been ____________________ by the federal law.
6. The right of a citizen of any state or of the United States to be treated like a “welcome visitor” to any other state, i.e. to enter, reside, work, vote, receive government benefits, and to leave, is an incident of what express doctrine appearing in the text of the Constitution (in two places, as a matter of fact)? Ans: The _____________________and ____________________ Clause.
7. When the Court declares unconstitutional an act of the federal or a state legislature, it is often controversial, especially when the Court appears to be substituting its judgment on matters of policy or the wisdom of legislation and acting as though the Court is a “super-legislature.” During the period between 1905-1937 the Court did this with some frequency, especially during the Depression, typically in favor of business and against reform legislation benefitting labor, i.e. men, women, children and union activity. Named after the well-known (at least in Conlaw circles) “bakery case,” this period is called The _________________ Era.
8. In 1937, in West Coast Hotel v. Parrish, followed by the Nebbia case, and in the Carolene Products Filled Milk (1938) case, the Court held that it would no longer review the wisdom of ordinary economic and social reform legislation on substantive due process grounds, i.e. act as a super-legislature. However, in the famous Footnote Four of Carolene, the Court signaled that it would nevertheless continue to give heightened scrutiny to three major categories of legislation that impaired certain rights, areas or groups of people. State what those three more highly protected categories of Footnote Four are:
(1)
(2)
(3)
8. Although the Court has not, since 1937, employed the doctrine of “substantive due process” to declare unconstitutional an act of Congress as to “ordinary economic and social legislation,” it has, especially among the more conservative justices, voted to overturn Congressional acts that the Court feels is an imposition on the power and dignity of the states as states. The Lopez School-Gun case (1995) and the VAWA (Violence Against Women Act) case of U.S. v. Morrison (2000) are examples. To critics this narrowing of the nation’s power by the Court’s clipping of Congress’s legislative wings (i.e. declaring unconstitutional an act of Congress) seems a return to an earlier, discredited era of judicial activism in which the Court is acting as a super-legislature all over again. Conservative proponents of limiting Congressional power argue, however, that the Court is just protecting state power in a dual system of power sharing that just happens to be built into the Constitution, so what could be wrong with that. This controversy has a name that was used in an earlier (leading up to the Civil War) controversy, except this time we put the word “New” in front of the label or doctrine’s name to distinguish it from the old, which was used to uphold the institution of slavery.
This doctrine is often called “The New _____________ _____________.”
9. As you know, Article III governs which matters the Court has jurisdiction to hear, prescribing that only “Cases or Controversies” may be decided. To further regulate which cases may be taken up, the Court insists that certain legal prerequisites must exist. Among these is that the matter may not be either moot or become moot while the action is pending. There is an exception to the mootness doctrine that is used typically, for example, in cases such as where the rights of a student might otherwise die on appeal if the student graduated, or of a woman whose pregnancy may end while the case is pending. There is a rather long expression used to denote this exception or modification to the mootness doctrine. This is called: ______________________________________________________________________ .
10. In constitutional law, the fundamental question or issue that needs to be decided is always whether the law, government act, or practice is repugnant, in text or theory, to what? The _________________________.
Answers:
1. Unconstitutional
2. Federalism
3. Separation of Powers
4. Dormant
5. Privileges...Immunities
6. Lochner
7. (1) The textual rights contained in the first eight amendments of the Bill of Rights,
(2) Where the political process is being skewed to harm particular groups such as religious, ethnic,
(3) “Discrete and insular minorities” [who are being shut out of the political system such that they
don’t have a meaningful opportunity to protect themselves as other minority groups traditionally have through coalition forming, access to the media, etc.]
8. States Rights
9. “Capable of repetition yet evading review.”
10. Constitution.
Are you f-ing kidding me. These questions are so easy my 8 year old could answer them! Is your entire class stoners or just morons??? Seriously, how do you fail a test like that?? This has to be a joke. If it is not, it is convincing evidence that ANYONE can get a J.D. nowadays...
Posted by: ARE YOU SERIOUS??? | April 29, 2005 at 12:54 PM