Con-Law

Constitutional Law Essays from
2000–Present

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Question 1 – July 2008

Lex, a nationally prominent criminal defense attorney, has a weekly television show on LNN, a national
cable television station devoted to legal news. Lex’s show deals with a variety of legal topics. Lex often
uses his show as a platform to argue that adultery should be criminalized. Lex and his wife are both 60
years old.

Scoop is a reporter for News, a nationally distributed newspaper. Scoop received an accurate tip that Lex
was engaging in an adulterous affair at a hotel in State X. Scoop then broke into the hotel through a back
door, an act constituting trespass under generally applicable tort law, and attempted to get into Lex’s hotel
room. Before he could get into the room, however, he was discovered by a hotel employee and escorted
out of the hotel. Later that day, while waiting on a public street outside the hotel, Scoop saw Lex get into
a car with a young woman who was clearly not Lex’s wife. Scoop took a photograph of Lex and the
young woman, who were kissing passionately. Scoop mistakenly thought the woman was Star, a world-
famous actress.

Scoop hurried back to the newspaper and wrote a news story that was published with the photograph in
News the next day. The story stated that Lex was having an affair with Star and that Lex’s adultery was
contrary to the beliefs he advocated on his television show. By coincidence, the next page of the same
edition of News featured a separate story about the premiere of Star’s new movie, correctly stating that
Star had been in State Y for the entirety of the previous day. Scoop honestly believed that the woman in
the photograph was Star, even though most people would have been able to tell from the photograph that
this was not the case.

Would the First Amendment preclude liability if:

1. Star sued News for libel on the ground that the news story falsely stated that she was having an
affair with Lex? Explain.

2. the hotel sued Scoop for trespass? Explain.

3. Lex sued News for invasion of privacy, claiming that the publication of the news story and
photograph disclosed the truthful but highly offensive fact that he had engaged in an extramarital
affair? Explain.

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Analysis for Question 1 – July 2008

Legal Problems

1. To what extent does the First Amendment shield a newspaper from liability in a defamation
action for publishing a false statement about a public figure?

2. Does the First Amendment shield a reporter from liability in a civil trespass action for trespassing
on private property while investigating a news story on a matter of public concern?

3. Does the First Amendment shield a newspaper from liability in an invasion-of-privacy action
based on disclosure of private facts in a newspaper story about a matter of public concern if the
reporter did not break the law in obtaining the story?

DISCUSSION

New York Times v. Sullivan requires plaintiffs who are public figures to prove “actual malice” in order to
receive money damages for defamation. If News was merely negligent in identifying the unknown woman
as Star, Star cannot recover damages. But because of the conflicting stories about Star, News may have
acted with reckless disregard of the truth and, therefore, with actual malice. The First Amendment does
not shield Scoop from liability for trespass under generally applicable tort law; here, because Scoop’s acts
constituted trespass under generally applicable tort law, he is liable for damages. Finally, Lex’s action for
invasion of privacy should fail. Truthful disclosure of private facts is protected by the First Amendment
unless the press did not obtain the information lawfully or the disclosure is not on a matter of public
concern. Here, the published facts were on a matter of public concern because Lex is a public figure and
his hypocrisy about adultery is newsworthy. Because neither News nor Scoop broke the law in obtaining
the photograph, News is not liable to Lex under the First Amendment.

Point One: (40–50%)
Star cannot successfully sue News under a libel theory because the facts do not appear to support a finding
that the reporting was done with actual malice.

In New York Times v. Sullivan, 376 U.S. 254, 280 (1964), the United States Supreme Court held that
public officials seeking to recover damages in a defamation action (libel or slander) must prove that the
defendant reporter acted with “actual malice,” defined as “knowledge that [the published defamation] was
false” or “reckless disregard of whether it was false or not.” Proof of negligent falsehood is insufficient to
permit liability for defamation.

The Supreme Court has extended this standard to public figures who assume “roles of especial
prominence in the affairs of society. Some occupy positions of such persuasive power and influence that
they are deemed public figures for all purposes. More commonly, those classed as public figures have
thrust themselves to the forefront of particular public controversies in order to influence the resolution of
the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).

Here, Star, a world-famous actress, is undeniably a public figure. She can recover only if she proves that
News acted with actual malice, i.e., that News knew that the woman Scoop photographed was not Star, or
that it acted with reckless disregard with regard to that fact. There is no indication that News acted with
knowledge of falsity; indeed, we are told that Scoop “honestly believed” that Star was Lex’s adulterous
partner. But it is a much closer question whether News acted with “reckless disregard” for the truth. While
logical or factual consistency is not demanded by New York Times, the fact that the same edition of News

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reported Star to be in another state shows that News very easily could have discovered Scoop’s report to
be untrue. The fact that “most people” could have seen that Star was not the woman in Scoop’s
photograph also provides some support for recklessness in reporting. These factors probably are
inadequate to show that News acted with reckless disregard for the facts, but it is a close question.

Point Two: (15–25%)
There is no First Amendment privilege giving the press immunity from liability arising under generally
applicable law, even when in pursuit of a news story on a matter of public concern.

The First Amendment does not shield the press from liability arising under generally applicable law not
aimed at suppression of free speech. In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), the United
States Supreme Court stated that “generally applicable laws do not offend the First Amendment simply
because their enforcement against the press has incidental effects on its ability to gather and report the
news. . . . [E]nforcement of such general laws against the press is not subject to stricter scrutiny than
would be applied to enforcement against other persons or organizations.” Id. at 669–70.

Here, Scoop’s actions in breaking into the hotel constituted trespass under generally applicable law that
does not single out the press for special treatment. Scoop, like any other member of the public, is subject
to tort law that applies to all members of society, even when he is engaged in the journalistic activities of
gathering and reporting the news. Thus, the First Amendment is no shield to liability for him, and the
hotel can collect damages for his trespass.

Point Three: (30–40%)
News is probably immune from liability for invading Lex’s privacy because the published information
was lawfully obtained and involves a matter of public concern.

In a series of cases, the United States Supreme Court has held that where a media defendant has lawfully
obtained a private fact, such as the identity of a rape victim, the First Amendment shields the media from
liability as long as the news story involves a matter of public concern. See, e.g., Cox Broadcasting v.
Cohn, 420 U.S. 469 (1975); Florida Star v. BJF, 491 U.S. 524 (1989); Bartnicki v. Vopper Corp., 532
U.S. 514 (2001). In some jurisdictions, the First Amendment protection is incorporated directly into the
tort rule, and the disclosure of private facts is not tortious if the facts are “of legitimate concern to the
public.” RESTATEMENT (SECOND) OF TORTS § 652D.

In this case, the First Amendment would shield News from liability. First, neither News nor its employee
Scoop acted unlawfully in procuring the picture. Scoop took the photograph from a public vantage point
and was not breaking the law in doing so. Indeed, publication of the picture was not really publication of
a “private” fact at all. Lex was kissing the young woman on a public street. Although he was in a private
car, passersby (e.g., Scoop) apparently could observe the kiss. A court might well conclude that Lex had
no reasonable expectation of privacy under the circumstances.

Moreover, the news story about Lex’s adultery addresses a matter of public concern. Lex is undeniably a
public figure under the Gertz test, see Point One, as he is a nationally famous lawyer and television
personality. In addition, given the strong position he has taken publicly opposing marital infidelity,
evidence that his personal actions belie his public arguments is relevant to the public debate that Lex has
voluntarily thrust himself into. Accordingly, because the photograph was newsworthy and lawfully
obtained, News cannot be held liable for invasion of privacy.

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Question 2 – July 2009

Debate! is a local cable-TV program devoted to public affairs. Each program features a debate about a
controversial public issue.

One year ago, a state official proposed legislation that would substantially increase tax rates. The proposal
was very controversial, and the producers of Debate! invited two guests, Tax and Anti-Tax, to debate the

proposal.

During a live broadcast, the following exchange took place:

Anti-Tax: Taxes are already much too high. If this ridiculous tax increase goes through,
you’ll have a revolution on your hands!

Tax: Don’t be ridiculous. This tax increase is necessary and affordable.

Anti-Tax: You’re a dishonest imbecile. The people have had enough! I call on all viewers
to refuse to pay this proposed tax. And to make it clear that we mean business, I
call on viewers to make Tax pay up. He lives at 224 Oak Street, right here in
town. Let’s show him what a taking really means.

At the conclusion of the program, Anti-Tax was arrested and charged with violating two state laws. One
law, the “Sedition Statute,” prohibits “any person from teaching the duty, necessity, or propriety of crime,
violence, or unlawful acts of terrorism as a means of accomplishing political reform.” The Sedition
Statute has been construed to apply only to advocacy of imminent law- breaking.

The other law, the “Abusive Words Statute,” punishes “directing any abusive word or term at another.”
This statute has not been interpreted by the state courts.

Two days after Anti-Tax’s remarks, an unknown arsonist started a fire that destroyed Tax’s home.

The proposed tax increase has not been enacted.

1. Assuming that Anti-Tax’s statements fall within the scope of the Sedition Statute, what
constitutional arguments can be made against convicting him for violating the statute? Explain.

2. Assuming that Anti-Tax’s statements fall within the scope of the Abusive Words Statute, what
constitutional arguments can be made against convicting him for violating the statute? Explain.

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Analysis for Question 2 – July 2009

Legal Problems

1. Does the First Amendment permit Anti-Tax’s conviction under the state sedition statute based on
advocacy of (a) illegal nonpayment of a future tax increase, or (b) “mak[ing] Tax pay up . . .
[and] show[ing] him what a taking really means”?

2. Does the First Amendment permit Anti-Tax’s conviction under the state’s broad abusive-words
statute?

DISCUSSION

Under the Brandenburg test, a conviction for violation of the Sedition Statute based on inciting illegal
conduct is consistent with the First Amendment if there is advocacy of illegal conduct that is imminent
and likely to occur and if the statute is limited to criminalizing advocacy of such conduct. Anti-Tax’s
advocacy of nonpayment of the proposed tax increase does not meet the “imminent and likely” test
because the proposed tax legislation has not been enacted. It is unclear whether Anti-Tax’s advocacy of
“mak[ing] Tax pay up . . . [and] show[ing] him what a taking really means” satisfies the Brandenburg
test.

Anti-Tax may not be convicted under the Abusive Words Statute because the statute is overbroad and
facially unconstitutional.

Point One: (45–55%)
Anti-Tax cannot be convicted for advocating nonpayment of the tax increase because the proposed illegal
conduct could not be performed imminently. It is possible, but not certain, that Anti-Tax could be
convicted for urging viewers to “make Tax pay up” and “show him what a taking really means.”

In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court of the United States held that the First
Amendment precludes the conviction of individuals who incite or advocate breaking the law unless (1)
there is advocacy of illegal conduct and not just an abstract expression of ideas, (2) the advocacy calls for
imminent lawbreaking, and (3) the lawbreaking is likely to occur. Moreover, a person cannot be convicted
on the basis of a statute that does not distinguish between abstract expression of ideas and such advocacy.

In this case, Anti-Tax made two statements. He advocated nonpayment of the proposed tax increase and
he urged viewers to “make Tax pay up” and “show him what a taking really means.”

Anti-Tax’s statement urging nonpayment of a future tax increase does not satisfy the Brandenburg
requirements. Although the statement satisfies the illegality requirement, the imminence requirement
cannot be satisfied because the proposed tax legislation had not been enacted. It also seems doubtful that
the state could show likelihood; it is unclear that the tax increase legislation will ever be passed, and there
is no evidence that anyone will take seriously Anti-Tax’s suggestion.

It is unclear whether Anti-Tax’s statement urging viewers to “make Tax pay up” and “show him what a
taking really means” meets the Brandenburg requirements for advocacy of imminent lawbreaking. The
statement does not expressly advocate immediate, illegal conduct.

On the other hand, the statement does urge a “taking,” which implies theft or property destruction. This
implication, coupled with the fact that Anti-Tax provided Tax’s home address, suggests that Anti-Tax was

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calling for immediate action. Although there is no evidence of the likelihood that a viewer would act on
Anti-Tax’s suggestion, the short time lapse between the broadcast and the arson provides circumstantial
evidence that a viewer did act on it. It is thus possible, but not certain, that Anti-Tax’s statement will be
found to satisfy both Brandenburg requirements.

While the Sedition Statute is not limited on its face to punishing advocacy of imminent lawbreaking, it
has been construed to apply only to such advocacy. Accordingly, overbreadth of the statute is not a bar to
conviction under it.

Point Two: (45–55%)
The First Amendment “fighting words” doctrine does not permit Anti-Tax’s conviction under the Abusive
Words Statute.

In Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), the Supreme Court excluded from the
protection of the First Amendment so-called “fighting words,” i.e., words “which by their very utterance
inflict injury or tend to incite an immediate breach of the peace.” Fighting words are unprotected speech
because they play little or no part in the exposition of ideas. Id.

Speech does not come within the fighting-words doctrine unless it is likely to cause a violent reaction
from others. See Cohen v. California, 403 U.S. 15 (1971) (wearing of a jacket reading “F*ck the Draft” in
a courthouse did not constitute fighting words because it was not likely to cause a violent reaction from
others under the circumstances). Here, it is possible, but not certain, that the state can establish that Anti-
Tax’s statement urging viewers to “make Tax pay up,” etc., was likely to cause a violent reaction.

However, even if the state establishes a likelihood of a violent reaction, Anti-Tax may not be convicted
under the Abusive Words Statute because of its overbreadth. In Gooding v. Wilson, 405 U.S. 518 (1972),
the Court held that a man who told a police officer “I’ll kill you” and “I’ll choke you to death” could not
be punished for uttering what were clearly fighting words because the statute under which conviction was
sought was overbroad and unconstitutional on its face.

Here, the Abusive Words Statute, which punishes “directing any abusive word or term at another,” is
clearly overbroad. Commentary on matters of public concern is afforded the highest level of First
Amendment protection, and this protection extends to “vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270
(1964). A statute which punishes language that is merely rude or abusive will of necessity reach protected
speech. Indeed, Anti-Tax’s statement “You’re a dishonest imbecile” is a textbook example of rude and
abusive speech protected by the First Amendment.

Thus, even if Anti-Tax’s statement urging viewers to “make Tax pay up” represented fighting words that
threatened personal violence against Tax, Anti-Tax’s conviction under this overbroad statute would
violate the First Amendment.

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Question 3 – July 2010

The Church of Peace (the Church) is a religious organization that advocates “peace to everyone.”
Recently, a Church chapter (Chapter) was organized in the town of Homestead. Chapter members decided
to spread the Church’s message to the people of Homestead by handing out leaflets that proclaimed in
bold letters, “PEACE TO ALL!” Chapter members who participated in passing out the leaflets stood on a
public sidewalk and distributed the leaflets to pedestrians. The Chapter members did not block traffic or
take any actions except passing out leaflets and remarking, “Peace to all!”

Many people who took the leaflets threw them onto the sidewalk, and Homestead employees spent
several hours cleaning up these discarded leaflets. Chapter was fined $3,000 under a municipal anti-
leafleting ordinance that prohibits any distribution of leaflets “in or on any public space, including roads,
streets, and sidewalks.” No Chapter member threw leaflets or other litter onto the ground.

Chapter members who attend High School, a public school in Homestead, recently formed the “Church of
Peace Club” (Church Club) to pray together and to do good works. High School has a policy that permits
student groups to meet in High School classrooms after scheduled classes. Under this policy, student
groups must first obtain permission from Principal before using a classroom for a meeting. Pursuant to
this policy, the Chess Club, the Drama Club, and the Future Lawyers Club all use classrooms for after-
school meetings. Church Club officers asked Principal if they could meet in a classroom after school.
Principal denied this request and stated that after-school use of a classroom by Church Club would be “a
violation of the separation of church and state.”

Father, a Chapter member and the parent of a Church Club officer, learned about Principal’s decision and
went to High School to see Principal. Outside Principal’s office was a sign reading “No admittance
without an appointment.” Father, who had no appointment, threw open the closed door and marched into
Principal’s office, interrupting a meeting between Principal and another parent, and told Principal, “Your
policy is unwise and unconstitutional. I believe that you are discriminating against members of my faith.”
Principal asked Father to leave the office until the meeting with the other parent was concluded, but
Father refused. Principal called the police, who forcibly removed Father from Principal’s office.

Father was convicted of trespassing on government property.

Does the First Amendment, as applied to state and local governments through the Fourteenth
Amendment:

1. Preclude Homestead’s enforcement of its anti-leafleting ordinance against Chapter? Explain.

2. Preclude Principal’s denial of Church Club’s request to use classroom space for its meetings?
Explain.

3. Provide grounds to vacate Father’s trespass conviction? Explain.

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Analysis for Question 3 – July 2010

Legal Problems

1. May a municipality prohibit leafleting in a public forum based on an anti-leafleting rationale?

2. May a public school deny use of classroom space to a student religious group when, by making
that space available to other student groups, it has created a limited public forum?

3. May a speaker be convicted for trespassing on government property that is not a public forum
when the government has an interest unrelated to speech in preventing the trespass?

DISCUSSION

For First Amendment purposes, there are three types of forums: the public forum, the limited public
forum, and the nonpublic forum. A public street or sidewalk is a public forum. In a public forum, the state
may not regulate speech based on its content, nor may it penalize speech based on an anti-leafleting
rationale. Thus, Homestead may not fine Chapter under the anti-leafleting ordinance.

When a governmental entity deliberately opens government property to the public for meetings or other
forms of speech, it creates a limited public forum subject to the same First Amendment requirements as a
traditional public forum. Thus, because High School created a limited public forum, Principal may not
deny Church Club the right to use that forum.

In a nonpublic forum, governmental actors may restrict speech as long as their actions are reasonable and
content-neutral. Principal’s office was a nonpublic forum because it was clearly off-limits to the public
except by invitation, and Principal’s actions were reasonable under the circumstances. Thus, Father has
no First Amendment grounds to vacate his trespass conviction.

Point One (40%)
Homestead cannot enforce its anti-leafleting ordinance against Chapter because a municipality must allow
speech in a traditional public forum even if doing so imposes costs on the municipality.

The First Amendment, as applied to the states and local governments through incorporation in the
Fourteenth Amendment, applies to Homestead’s enforcement of its anti-leafleting ordinance, which is a
state action.

Although the United States Supreme Court once granted local governments broad powers to regulate
speech in streets and parks, see Davis v. Commonwealth of Massachusetts, 167 U.S. 43 (1897), for the
better part of a century, the Court has treated a public street or sidewalk as a First Amendment “public
forum.” In a public forum, government may regulate speech only if certain conditions are met. If the
regulation is not content-neutral, it must meet the requirements of strict scrutiny. If the regulation is
content-neutral, it must meet the requirements of intermediate scrutiny; to pass muster under this
standard, the regulation must impose only reasonable restrictions on the time, place, or manner of speech
that are narrowly tailored to serve a significant governmental interest, and it must leave open ample
alternative opportunities to engage in speech. See Ward v. Rock against Racism, 491 U.S. 781 (1989);
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1127 (3d ed. 2006).

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Here, Homestead’s regulation of speech under its anti-leafleting ordinance is content-neutral; the
ordinance forbids one means of communication, leafleting, without regard to the content of the speech.
Thus, Homestead must show that its ordinance passes intermediate rather than strict scrutiny.

The Homestead ordinance is unlikely to pass muster under intermediate scrutiny because Homestead has
not left open an alternative channel for the prohibited speech. Instead of regulating the time, place, and
manner of leafleting, Homestead has banned it entirely. Particularly where a form of speech is
inexpensive and available to all, a governmental entity may not prohibit it altogether. See City of Ladue v.
Gilleo, 512 U.S. 43, 56 (1994).

The fact that the prohibited speech imposes costs upon the governmental entity does not alter this result.
In the seminal case of Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147 (1939), the
Supreme Court struck down an anti-leafleting ordinance much like the Homestead ordinance. In so doing,
the Court held that

“the purpose to keep the streets clean and of good appearance is insufficient to justify an
ordinance which prohibits a person rightfully on a public street from handing literature to one
willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the
streets as an indirect consequence of such distribution results from the constitutional protection of
the freedom of speech and press.” Id. at 162.

Thus, Homestead may not fine Chapter for leafleting.

Point Two (35%)
A public school that makes classroom space available to student groups has created a limited public
forum and may not discriminate as to use of that forum based on the content of speech. Thus High School
cannot deny use of a classroom after school hours to Church Club.

A “limited public forum” (also known as a “designated public forum”) is created when a governmental
entity could close a location to speech but instead opens it to speech. All the rules applicable to a
traditional public forum apply to a limited public forum. Thus, under the First Amendment, as applied to
the states and local governments through incorporation in the Fourteenth Amendment, the government
may not discriminate among speakers based upon the content of their speech. See CHEMERINSKY, supra,
at 1137.

There is no exception to the requirement of content neutrality when religious speech is at issue. The
Supreme Court has repeatedly held that, in a public forum, religious speech stands on an equal footing
with nonreligious speech, and content-neutral access rules do not violate the Establishment Clause. Many
of the cases have involved student or community groups that wanted to use, for religious speech, limited
public forums created by public schools. See, e.g., Widmar v. Vincent, 454 U.S. 263 (1981); Lamb’s
Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993); Good News Club v. Milford
Central School, 533 U.S. 98 (2001). In Good News, the case most like this one, the Supreme Court held
that, when a school opens its classrooms for use by student groups, it creates a limited public forum and
may not deny access to a student religious club that intends to use the classroom for prayer based on the
religious content of that speech. The Court also held that a school that opens its facilities to religious
speech under a content-neutral policy does not violate the Establishment Clause under the standard
established in Lemon v. Kurtzman, 403 U.S. 642 (1971). See Good News, 533 U.S. at 103–04.

Thus, High School may not deny Church Club use of its classrooms for after-school meetings.

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Point Three (25%)
The First Amendment does not shield Father from a trespass conviction. First, government can regulate
conduct that is not imbued with communicative value. Second, even if the conduct has communicative
value, the state can regulate such conduct in a nonpublic forum if the state’s interest is important or
substantial, and is unrelated to the suppression of expression, and if the regulation is no greater than
necessary to serve the state’s interest. Here, Principal’s office was a nonpublic forum, Father’s act of
trespass was not communicative, and High School had an important and substantial interest in preventing
trespassers from entering Principal’s office.

Father was convicted for his physical entry into Principal’s office, not for what he said while there. The
act of marching into Principal’s office—which is the act for which Father was convicted—is not conduct
imbued with communicative value and does not implicate the First Amendment. Thus, Father’s trespass
conviction will likely survive a First Amendment challenge.

Even if Father’s conduct is viewed as conduct imbued with communicative value because he entered
Principal’s office to express an opinion, the conviction would be upheld under United States v. O’Brien,
391 U.S. 367 (1968). The test in that case is whether a law that regulates speech-related conduct serves an
interest within the government’s regulatory powers that is important or substantial and that is both
unrelated to the suppression of expression and no greater than necessary to serve the state’s interest. Here,
Principal’s office was clearly not a public forum. The door was closed, a sign announced that there was
“no admittance without an appointment,” and Principal was meeting with another parent at the time that
Father marched in. High School clearly has a legitimate and important interest in prohibiting trespassers
from entering Principal’s office where private conversations about individual students or official school
business may be taking place. High School’s interest is not related to suppression of expression.
Moreover, the means of protecting that interest (prohibiting admittance without appointment) are closely
related to advancement of High School’s interest.

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Question 4 – July 2011

There are two nursing schools in State A: Public Nursing School (Public) and Private Nursing School
(Private). Public is an agency of the state government, and all its faculty and staff are state employees.
Private is owned by a private corporation and receives no direct funding from the state. The State A
Board of Education regulates the curriculum of each nursing school and certifies all graduates of the two
nursing schools as eligible to become licensed nurses in State A.

Both Public and Private have a long-standing policy of restricting admission to women. Neither school
has ever admitted a male applicant. There has been general discrimination against women in State A in
the health care field. Historically, however, 95 percent of State A nurses have been female.

A male resident of State A wants to be a nurse. The man first applied to Private and was denied
admission. His rejection letter from Private stated that he was “not eligible to enroll because Private was
established as an all-female institution and does not admit or enroll male students.”

The man next applied to Public and was again denied admission. His letter from Public stated that “you
are not eligible to enroll because Public does not enroll male students. Mindful of the historical
discrimination that women have faced in State A, our state has established Public to remedy this
discrimination and provide opportunities for women who want to work in the growing field of health care
as nurses.” The letter continued, “Because your grades and test scores would have been sufficient to admit
you if you were female, we offer you admission to our new Male Nursing Opportunity Program instead.”

The Male Nursing Opportunity Program allows male residents of State A to become nurses by studying at
a nursing school in an adjacent state. Graduates of the program are certified by the State A Board of
Education as eligible to become licensed nurses in State A. However, the Male Nursing Opportunity
Program facilities are not as modern as those at Public, the faculty is not as experienced, and graduates of
the Male Nursing Opportunity Program do not enjoy the same employment opportunities as graduates of
either Public or Private.

1. Has Private violated the man’s rights under the Equal Protection Clause of the Fourteenth
Amendment? Explain.

2. Has Public violated the man’s rights under the Equal Protection Clause of the Fourteenth
Amendment? Explain.

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Analysis for Question 4 – July 2011

Legal Problems

1. Are the actions of a private nursing school subject to the Equal Protection Clause of the
Fourteenth Amendment if the school receives no direct state funds, but the state regulates the
school and certifies its graduates as eligible to become licensed nurses?

2(a). Does it violate the Equal Protection Clause of the Fourteenth Amendment for a state-owned
nursing school to deny admission to a male applicant because of his gender?

2(b). Does it violate the Equal Protection Clause of the Fourteenth Amendment for a state to have an
in-state nursing program reserved for female students, and an out-of-state program for male
students, where the facilities of and employment from the all-female program are superior?

DISCUSSION

Private has not violated the man’s rights under the Equal Protection Clause of the Fourteenth Amendment
by denying him admission, because the actions of Private are not the actions of the state for purposes of
the Equal Protection Clause. By contrast, as an arm of the state itself, Public’s actions are state action.
When Public denied the man admission based upon his gender, Public denied him equal protection of the
laws. The creation of the Male Nursing Opportunity Program fails to cure this constitutional violation. As
in United States v. Virginia, 518 U.S. 515 (1996), if a state creates two separate single-gender educational
institutions, the institutions must (at a minimum) provide equivalent educational experiences. Because in
this case the Male Nursing Opportunity Program is clearly inferior as an educational institution, it fails to
pass scrutiny under the Equal Protection Clause.

Point One (30%)
Private’s actions are not subject to the Equal Protection Clause because it is not a state actor.

The Fourteenth Amendment provides that “No State shall . . . deny to any person within its jurisdiction
the equal protection of the laws.” The U.S. Supreme Court has interpreted this language as applying not
only to the states themselves but also to private parties whose actions constitute “state action.” Simply
put, in order for there to be a violation of the Fourteenth Amendment, the allegedly unconstitutional
action (here, denial of admission based upon gender) must be attributable to the state. Actions of private
parties are not typically considered state action, but the actions of otherwise “private” parties can
constitute state action in certain exceptional cases. For instance, private parties have been held to be state
actors where (1) they have performed a traditional public function, Jackson v. Metropolitan Edison Co.,
419 U.S. 345, 352–53 (1974), (2) there is the enforcement of certain private contracts, (3) there is joint
action or “entanglement” between a state and private actor, or (4) there is state encouragement of private
discrimination, Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (“A State normally can be held responsible
for a private decision only when it has exercised coercive power or has provided such significant
encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.”).

Private is a private entity and none of the factors described above contribute to a conclusion that its
actions constitute state action. Running a private school or college is not state action. Rendell-Baker v.
Kohn, 457 U.S. 830 (1982). First, Private is not performing a traditional public function. Second, there
has been no judicial enforcement of a private contract here. Third, it is highly unlikely that a court would
hold that mere state regulation of the curriculum and state certification of graduates is sufficient to

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constitute entanglement. Fourth, there is no evidence that the state has directly encouraged Private to
discriminate on the basis of gender.

Point Two(a) (40%)
Public has violated the Equal Protection Clause because a state college may not deny admission on the
basis of gender absent an “exceedingly persuasive justification.”

Laws that classify on the basis of gender are typically assessed under heightened scrutiny. Reed v. Reed,
404 U.S. 71, 75 (1971). Although some early cases suggested that strict scrutiny was the correct standard,
modern cases have settled on intermediate scrutiny. See Craig v. Boren, 429 U.S. 190 (1976). In United
States v. Virginia, 518 U.S. 515, 531 (1996), the U.S. Supreme Court held that state laws that make
classifications on the basis of gender are unconstitutional unless the state can establish an “exceedingly
persuasive justification” for the classification. An “exceedingly persuasive justification” is one that serves
“important governmental objectives” and which does not rely upon outdated or overbroad generalizations
and stereotypes about differences between men and women. The burden of justification is demanding and
rests entirely on the state. The state must at least show that the “[challenged] classification serves
important governmental objectives and that the discriminatory means employed are substantially related
to the achievement of those objectives.” Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724–25
(quoting Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980) (internal quotations omitted)).
These objectives must be real in the sense that they are real state purposes rather than hypothetical
justifications for the gender classification. Moreover, gender classifications must be “substantially
related” to the achievement of such important governmental objectives. “[A] State can evoke a
compensatory purpose to justify an otherwise discriminatory classification only if members of the gender
benefited by the classification actually suffer a disadvantage related to the classification.” Id. at 728.

Because the man has been denied admission to Public solely on the basis of his gender, the action of
Public—clearly the action of the state, as Public is the state nursing school—is presumptively
unconstitutional. The state interest in this case is remedying past discrimination against women—as the
letter states, “[m]indful of the historical discrimination that women have faced in State A, our state has
established Public to remedy this discrimination and provide opportunities for women who want to work
in the growing field of health care as nurses.” Remedying past discrimination is certainly an important
governmental objective; in the contexts of race and gender classifications, the Supreme Court has upheld
this governmental objective in the face of heightened scrutiny. However, it is unclear whether this quote
from Public’s letter sets forth the actual state purpose. Although there has been gender discrimination in
the field of health care in State A in the past, there is no evidence that there has been discrimination
against women in the nursing field. Indeed, the evidence that 95 percent of nurses have historically been
women suggests that State A is more likely reinforcing outdated stereotypes of women as nurses (rather
than, say, doctors) by restricting Public admissions to women. Finally, if the goal of the admissions policy
is to end discrimination against women in the health care field, it is not clear how the admissions policy
advances this objective.

Point Two(b) (30%)
The Male Nursing Opportunity Program is inconsistent with the guarantees of equal protection.

In certain cases, a state may treat men and women differently consistent with the equal protection
guarantee and provide separate facilities for each gender (for example, male and female sports teams,
dormitories, and bathroom facilities at state universities). In such cases, moreover, the state must bear the
burden of (1) demonstrating the “exceedingly persuasive justification” for the separate treatment, and (2)
demonstrating that the separate facilities are substantially equivalent. Thus, for example, in United States
v. Virginia, the Supreme Court suggested that the Commonwealth of Virginia could offer all-male and all-

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female public military-style education consistent with the Equal Protection Clause. However, because the
new all-female “Leadership Program” in that case provided facilities and career opportunities inferior to
those that the Commonwealth was providing in its established all-male program at the Virginia Military
Institute, the Court concluded that the separate program violated the Fourteenth Amendment.

In this case, because the Male Nursing Opportunity Program is markedly inferior to the all-female Public
program, it is insufficient to satisfy the Equal Protection Clause. Although graduates of the all-male
program are still eligible to become nurses in State A, the two programs are not substantially equivalent.
They differ in both overall quality and the employment opportunities they offer to their graduates. The
facilities of the Male Nursing Opportunity Program are not as modern as those at Public, the faculty is not
as experienced, and graduates of the Male Nursing Opportunity Program do not enjoy the same
employment opportunities as graduates of either Public or Private. For these reasons, the Male Nursing
Opportunity Program is inferior to the regular all-female Public program, and it cannot be offered as a
substitute consistent with Equal Protection.

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Question 5 – July 2012

Congress recently enacted the Violence at Work Act (the Act).

Title I of the Act provides that an employee who has been injured in the workplace by the violent act of a
coworker has a cause of action for damages against that coworker.

Title II of the Act imposes several duties on employers subject to the Act and creates a cause of action
against employers who do not fulfill those duties. Section 201 provides that all employers, “including all
States, their agencies and subdivisions,” who have more than 50 employees are subject to the Act. Section
202 requires employers subject to the Act to (i) train employees on certain methods of preventing and
responding to workplace violence, (ii) conduct criminal background checks on job applicants, and (iii)
establish a hotline to report workplace violence. Section 203 provides that if an employer subject to the
Act does not fulfill the duties imposed by Section 202, an employee who has been injured by the violent
act of a fellow employee may recover damages from the employer for the harm resulting from that violent
act. Section 204 provides that any action brought pursuant to Section 203 may be brought in federal or
state court and that “if brought in federal court against a State, its agencies or subdivisions, any defense of
immunity under the Eleventh Amendment to the United States Constitution is abrogated.”

The House and Senate committee reports on the Act note that Congress passed the Act under its power to
regulate interstate commerce. To support its use of that power, Congress found that acts of workplace
violence directly interfere with economic activity by causing damage to business property, injury to
workers, and lost work time due to the violent acts and their aftermath. The House report estimated that
total interstate economic activity is diminished by $5 to $10 billion per year as a result of losses
associated with workplace violence.

After the Act’s effective date, an employee of a state agency was injured in the workplace by the violent
act of a disgruntled coworker. The state agency, which has over 100 employees, conceded that it had not
implemented the measures required by Section 202 of the Act. Accordingly, the employee has sued the
state agency in United States District Court to recover damages for the harm caused by the act of
workplace violence. The state agency has moved to dismiss the lawsuit on three grounds: (1) Congress
did not have the power to enact the Act, (2) Congress did not have the power to apply the Act to state
agencies, and (3) the Eleventh Amendment bars the employee’s lawsuit.

1. Is the Act a valid exercise of Congress’s power to regulate interstate commerce? Explain.

2. Assuming that the Act is a valid exercise of Congress’s power, may the Act constitutionally be
applied to state agencies as employers? Explain.

3. Does the Eleventh Amendment bar the employee’s lawsuit in federal court against the state
agency? Explain.

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Analysis for Question 5 – July 2012

Legal Problems

1. Does Congress have authority under the Commerce Clause to regulate employer precautions
against workplace violence?

2. Do federalism principles bar Congress from applying the Act to state agencies as employers?

3. Does the Eleventh Amendment bar the employee’s suit against the state?

DISCUSSION

Under the Commerce Clause, Congress has power to regulate economic activities that substantially affect
interstate commerce. Here, the Act regulates a non-economic aspect of an economic activity (i.e., the
employment relationship) that has a substantial effect ($5 to $10 billion per year) on interstate commerce.
This regulation probably falls within the scope of the Commerce Clause, although at least one case can be
read to suggest the opposite possibility. The Act does not violate federalism principles embodied in the
Tenth Amendment to the Constitution by improperly commandeering states or by regulating state
employers differently than private employers. However, the employee’s federal court lawsuit is barred by
the state agency’s Eleventh Amendment immunity, and the Act cannot abrogate that immunity.

Point One (50%)
Congress has power under the Commerce Clause to regulate workplace violence only if the court
concludes that the Act regulates an economic activity with a substantial aggregate effect on interstate
commerce.

In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court of the United States clarified that
Congress may enact three types of regulations under the Commerce Clause. First, Congress may regulate
the channels of interstate commerce, which are the pathways through which interstate travel and
communications pass. Examples of the channels include interstate highways and phone lines. Second,
Congress may regulate the people and instrumentalities that work and travel in the channels of interstate
commerce. Examples include people such as airline pilots and flight attendants, as well as the airplanes on
which they travel. Third, Congress may regulate activities that substantially affect interstate commerce.

The Act does not fit within either of the first two Lopez categories. First, the statute applies to any
workplace, regardless of its location, and so it does not narrowly regulate the channels of interstate
commerce. Second, the Act applies to all employees and not only those people or instrumentalities in the
channels of interstate commerce. Consequently, the Act will be valid only if it regulates an activity that
substantially affects interstate commerce.

The key to satisfying the substantial effects requirement is the threshold determination of whether the
regulated activity is economic or commercial in nature. When Congress regulates an economic or
commercial activity, the Court will uphold the regulation if Congress had a rational basis for concluding
that the class of activities subject to regulation, in the aggregate, has a substantial effect on interstate
commerce. Aggregation on a national scale typically makes this an easy standard to meet. On the other
hand, if the regulated activity is not economic or commercial in nature, the Court will not aggregate to
find a substantial effect, and the standard becomes extremely difficult to meet. See Gonzales v. Raich, 545
U.S. 1 (2005); United States v. Morrison, 529 U.S. 598 (2000); Lopez, supra.

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Therefore, the key question is whether violence in the workplace is an economic or commercial activity.
In Morrison, the Court held that Congress exceeded its commerce power by enacting a statute giving a
cause of action to the victims of gender-motivated violence. It therefore can be argued here, as Morrison
held, that acts of violence are not economic or commercial in nature, and thus in applying the substantial
effects test, the court may only measure the effect of the particular act of violence at issue in the suit and
not the aggregate effect of all acts of violence in the workplace.

One could argue that Morrison is distinguishable because the statute at issue here is limited to violence in
the workplace. The workplace is an economic environment, and workplace violence directly impedes
productivity of the workplace. The court therefore should conclude that the statute at issue here is an
economic regulation and thus is within the commerce power of Congress because, based on the facts
given in the problem, Congress had a rational basis for concluding that workplace violence, in the
aggregate, has a substantial effect on interstate commerce.

Point Two (20%)
The Act does not violate federalism principles because it regulates both public and private employers on
the same terms.

In Garcia v. San Antonio Metropolitan Transportation Authority, 469 U.S. 528 (1985), the Supreme
Court held that Congress may regulate the states on the same terms as private actors. For example, Garcia
upheld application of the federal minimum wage and maximum hour law to both public and private
employers. In New York v. United States, 505 U.S. 144 (1992), however, the Court held that Congress
may not “commandeer” the states to regulate private conduct. In New York v. United States, the Court
struck down a federal statute that commandeered states to regulate private disposal of low-level hazardous
waste.

The Act does not commandeer the state to regulate private conduct. Instead, the Act merely requires both
public and private employers to obey the same federal requirement—to address workplace violence under
the threat of civil liability. It is true that the state, as an employer, must adopt policies and regulations to
implement the Act’s mandates. But Reno v. Condon, 528 U.S. 141 (2000), clarifies that a federal mandate
requiring state personnel to alter their own activities is not unconstitutional commandeering.

Point Three (30%)
The Eleventh Amendment bars the employee’s federal court lawsuit against the state, and the Act does
not validly abrogate that immunity.

The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens
of another State, or by Citizens or Subjects of any Foreign State.”

Despite the text of the Eleventh Amendment, the Supreme Court has interpreted it to bar lawsuits between
a state and one of its own citizens, as well as lawsuits that arise under federal law. See Seminole Tribe of
Florida v. Florida, 517 U.S. 44 (1996). Further, this immunity extends to state agencies. Consequently,
the Eleventh Amendment would bar the employee’s lawsuit against the state agency in federal court,
unless the Act validly abrogates the state’s immunity.

A federal statute abrogates Eleventh Amendment immunity if, first, the statute unambiguously asserts that
it does so, and second, Congress enacted the statute under a power that may abrogate Eleventh
Amendment state immunity. Here, the Act satisfies the first requirement because Section 204
unequivocally attempts to abrogate state Eleventh Amendment immunity. The Act fails the second

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requirement, however, because Congress did not pass the Act under a grant of power that may abrogate
state immunity. In Seminole Tribe, the Court held that Article 1, section 8 of the Constitution does not
grant Congress power to abrogate state sovereign immunity. (The Supreme Court has held that Congress
can abrogate state immunity when it exercises its powers under amendments that postdate the Eleventh
Amendment. By way of contrast, Section 5 of the Fourteenth Amendment does grant Congress that
power. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (Fourteenth Amendment)). Because the Act does
not validly abrogate the state’s Eleventh Amendment immunity, the District Court should dismiss the
employee’s lawsuit.

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Question 6 – February 2013

AutoCo is a privately owned corporation that manufactures automobiles. Ten years ago, AutoCo
purchased a five-square-mile parcel of unincorporated land in a remote region of the state and built a
large automobile assembly plant on the land. To attract workers to the remote location of the plant,
AutoCo built apartment buildings and houses on the land and leased them to its employees. AutoCo owns
and operates a commercial district with shops and streets open to the general public. AutoCo named the
area Oakwood and provides security, fire protection, and sanitation services for Oakwood’s residents.
AutoCo also built, operates, and fully funds the only school in the region, which it makes available free of
charge to the children of its employees.

A family recently moved to Oakwood. The father and mother work in AutoCo’s plant, rent an apartment
from AutoCo, and have enrolled their 10-year-old son in Oakwood’s school. Every morning, the students
are required to recite the Pledge of Allegiance while standing and saluting an American flag. With the
approval of his parents, the son has politely but insistently refused to recite the Pledge and salute the flag
at the school on the grounds that doing so violates his own political beliefs and the political beliefs of his
family. As a result of his refusal to say the Pledge, the son has been expelled from the school.

To protest the school’s actions, the father walked into the commercial district of Oakwood. While
standing on a street corner, he handed out leaflets that contained a short essay critical of the school’s
Pledge of Allegiance policy. Some of the passersby who took the leaflets dropped them to the ground. An
AutoCo security guard saw the litter, told the father that Oakwood’s anti-litter rule prohibits leaflet
distribution that results in littering, and directed him to cease distribution of the leaflets and leave the
commercial district. When the father did not leave and continued to distribute the leaflets, the security
guard called the state police, which sent officers who arrested the father for trespass.

1. Did the son’s expulsion from the school violate the First Amendment as applied through the
Fourteenth Amendment? Explain.

2. Did the father’s arrest violate the First Amendment as applied through the Fourteenth
Amendment? Explain.

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Analysis for Question 6 – February 2013

Legal Problems

1. Does AutoCo’s operation of a “company town” result in its actions counting as those of the state
for purposes of constitutional analysis?

2. Does the expulsion of a schoolchild for failure to recite the Pledge of Allegiance violate the First
Amendment as applied through the Fourteenth Amendment?

3. Does the arrest of a pamphleteer in connection with violation of an anti-littering rule, where the
littering is done by the recipients of leaflets distributed by the pamphleteer, violate the First
Amendment as applied through the Fourteenth Amendment?

DISCUSSION

The First Amendment, as applied through the Fourteenth Amendment, applies only to state action. It does
not typically govern private actors. However, courts have found state action where the private actor has
exercised a “public function,” such as running a privately owned “company town,” as AutoCo has done
here. Thus, First Amendment protections apply. By requiring the son to participate in a mandatory Pledge
of Allegiance ceremony, AutoCo has compelled the expression of political belief in violation of the First
Amendment as applied through the Fourteenth Amendment. The father’s arrest in connection with
breaching the anti-litter rule also violated the First Amendment as applied through the Fourteenth
Amendment. Although state actors can regulate the incidental effects of speech on the public streets on a
content-neutral basis, this power is limited and cannot extend to punishing a distributor of literature
because of littering by third parties.

Point One (30%)
AutoCo’s operation of a company town (including a school) makes it a state actor under the public
function strand of the state action doctrine.

The individual rights protections of the Constitution apply only where there is “state action”—either
direct action by the government or some action by a private party that is fairly attributable to the
government. As a general rule, the actions of a private company like AutoCo or of a private school like
the school operated by AutoCo would not constitute state action, and the protections of the Constitution
(in this case the First Amendment) would not apply.

However, there are situations in which the actions of a private actor are attributed to the state. One such
situation is when the private actor undertakes a public function. There are not many bright-line rules in
the Supreme Court’s state action doctrine, but one of them is this: Where a private actor undertakes a
“public function,” the Constitution applies to those actions. Where a corporation operates a privately
owned “company town” that provides essential services typically provided by a state actor, the public
function doctrine applies and the Constitution binds agents of the town as if they were agents of the
government. See, e.g., Marsh v. Alabama, 326 U.S. 501 (1946). Here, AutoCo does more than own the
town; it provides security services, fire protection, sanitation services, and a school. Thus the actions of
AutoCo constitute state action and are governed by the Fourteenth Amendment.

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Point Two (35%)
The son’s expulsion for failure to recite the Pledge of Allegiance violates the First Amendment as applied
through the Fourteenth Amendment as a compelled expression of political belief.

As explained in Point One, the First Amendment applies to the school as a state actor.

Although children in public schools (and in schools subject to the First Amendment like the Oakwood
school) have some First Amendment rights, Tinker v. Des Moines Independent Community School
District, 393 U.S. 503, 506 (1969), schools have greater leeway to regulate the speech of students and
teachers than the state would have outside the school context. Hazelwood School Dist. v. Kuhlmeier, 484
U.S. 260 (1988); Morse v. Frederick, 551 U.S. 393 (2007). However, the Supreme Court has long held
that public schools may not force their students to participate in a flag salute ceremony when it offends
the political or religious beliefs of the students or their families. West Virginia Board of Educ. v. Barnette,
319 U.S. 624 (1943) (invalidating a mandatory public school flag salute ceremony); see also Wooley v.
Maynard, 430 U.S. 705 (1977) (invalidating compelled expression of political belief on state-issued
license plates).

In this case, the school requires its students to participate in a flag salute and Pledge of Allegiance
ceremony and punishes them when they refuse to participate. Pursuant to this policy, the school has
expelled the son. This expulsion violates the First Amendment ban on compelled expression.

Point Three (35%)
Because the father was distributing leaflets in a traditional public forum, his trespass arrest violated the
First Amendment as applied through the Fourteenth Amendment.

As explained in Point One, AutoCo is treated as a state actor. Thus, Oakwood’s commercial district is
treated as government-owned property for purposes of the First Amendment. Thus, the leafleting here is
subject to the First Amendment because it is an expressive activity. Schneider v. State of New Jersey,
Town of Irvington, 308 U.S. 147 (1939). When expression takes place on government-owned property,
government regulation of the expression is assessed under the public forum doctrine. Public streets and
sidewalks have long been held to be the classic example of a “traditional public forum” open to the public
for expression. Hague v. CIO, 307 U.S. 496, 515–16 (1939). Because the father was distributing leaflets
while standing on a street corner in the commercial district, his expressive activity occurred in a
traditional public forum.

When a state tries to regulate expressive activity in a traditional public forum, it is prohibited from doing
so based on the expressive activity’s content unless its regulation is narrowly tailored to achieve a
compelling governmental interest (“strict scrutiny”). In this case, however, AutoCo is regulating the
father’s expressive activity on the ostensibly neutral ground that his expressive activity has produced litter
and made the street unsightly. When a state tries to regulate expressive activity without regard to its
content, intermediate scrutiny applies. Under intermediate scrutiny, the true purpose of the regulation may
not be the suppression of ideas (if so, then strict scrutiny applies), the regulation must be narrowly
tailored to achieve a significant governmental interest, and it must leave open ample alternative channels
for expressive activity. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

Here, the application of the ordinance to the father will fail for two reasons. First, the Supreme Court has
held that the government’s interest in keeping the streets clean is insufficient to ban leafleting in the
public streets, as the government power to regulate with incidental effects on public sidewalk speech is
very limited. See, e.g., Schneider, 308 U.S. at 162 (leafleting/littering). Second, the regulation (a blanket
ban on distribution that results in littering) is not narrowly tailored to protect expression. A narrowly

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tailored alternative would be prosecution only of people who litter. Moreover, the effect of the littering
rule is likely to be a ban on all leafleting, thus eliminating an entire class of means of expression. This
raises the possibility that there are not “ample alternative channels of communication” open to the father
as required under the Court’s standard of review for content-neutral regulation of speech.

[NOTE: Some examinees might argue that this is a “time, place, and manner” restriction, and that AutoCo
might have greater latitude to regulate the public sidewalks under this theory. This argument is incorrect
for two reasons. First, the Supreme Court has held that the power to regulate speakers through littering
laws is very limited, for the reasons given and in the cases cited above. But more generally, a “time,
place, and manner” restriction involves the shifting of speech from one time and place to another or to
another manner; here, there is no shifting, but a direct punishment for expressive activity (albeit one
couched in content-neutral terms). In addition, some examinees might read the ordinance to be, in effect,
a total ban on leafleting, since most leafleting will produce some litter. Those examinees might note that
the Court has required total bans on an entire mode of expression to satisfy strict scrutiny and analyze the
father’s prosecution here accordingly. See United States v. Grace, 461 U.S. 171, 177 (1983) (invalidating
ban on display of signs on public sidewalks surrounding U.S. Supreme Court; “[a]dditional restrictions
such as an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to
accomplish a compelling governmental interest”).]

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Question 7 – February 2014

A city ordinance required each downtown business to install high-powered halogen floodlights that would
illuminate the property owned by that business and the adjoining sidewalks. A study commissioned by the
city estimated that installation of the floodlights would cost a typical business about $1,000, but that
increased business traffic due to enhanced public safety, especially after dark, would likely offset this
cost.

A downtown restaurant applied to the city for a building permit to construct an addition that would
increase its seating capacity. In its permit application, the restaurant accurately noted that its current
facility did not have sufficient seating to accommodate all potential customers during peak hours. The city
approved the permit on the condition that the restaurant grant the city an easement over a narrow strip of
the restaurant’s property, to be used by the city to install video surveillance equipment that would cover
nearby public streets and parking lots. The city based its permit decision entirely on findings that the
increased patronage that would result from the increased capacity of the restaurant might also attract
additional crime to the neighborhood, and that installing video surveillance equipment might alleviate that
problem.

The restaurant has challenged both the ordinance requiring it to install floodlights and the easement
condition imposed on approval of the building permit.

1. Under the Fifth Amendment as applied to the states through the Fourteenth Amendment, is the
city ordinance requiring the restaurant to install floodlights an unconstitutional taking? Explain.

2. Under the Fifth Amendment as applied to the states through the Fourteenth Amendment, is the
city’s requirement that the restaurant grant the city an easement as a condition for obtaining the
building permit an unconstitutional taking? Explain.

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Analysis for Question 7 – February 2014

Legal Problems

1. Is the city ordinance requirement that businesses install floodlights a taking?

2. Is conditioning the approval of a building permit on the grant of an easement to install
surveillance equipment a taking of property?

DISCUSSION

The ordinance requiring businesses to install floodlights is not a per se taking under Loretto, because it
does not force a private landowner to allow a third party to enter and place a physical object on the land.
Here, the city ordinance requires the business—not a third party—to install the floodlights.

The ordinance is likely not a regulatory taking under the Penn Central balancing test. While the ordinance
will impose a cost on business owners, that cost may be offset by the expected increase in business due to
the ordinance, and the ordinance does not appear to interfere with the owner’s primary use of the property
as a restaurant.

The permit condition, however, is likely an uncompensated taking of property. While the condition has an
essential nexus with the city’s legitimate interest in promoting public safety, the city has not made an
individualized determination that the easement condition is roughly proportional to the possibility of
increased crime due to the restaurant’s proposed addition. Thus, the permit condition likely violates the
Fifth Amendment as applied to the states through the Fourteenth Amendment.

Point One (50%)
The ordinance requiring that businesses install floodlights is not a per se taking under Loretto. It is not a
regulatory taking under the Penn Central balancing test because the cost of compliance with the
ordinance may be offset by an expected increase in business and compliance does not interfere with the
business’s primary use of its property as a restaurant.

The city ordinance requiring a business to install floodlights does not effect a per se taking of the sort
described in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), because no property
is physically taken by the government and the ordinance does not involve a physical invasion of private
property by a third party.

Even though the ordinance does not constitute an occupation of the property by either the government or
a third party, it is still subject to the three-factor balancing test under Penn Central Transportation Co. v.
City of New York, 438 U.S. 104 (1978), to determine whether it is a “regulatory taking.” Under Penn
Central, a court must balance (1) “[t]he economic impact of the regulation on the claimant,” (2) “the
extent to which the regulation has interfered with distinct investment-backed expectations,” and (3) “the
character of the governmental action.” Id. at 124. Here, each factor weighs against finding that the
ordinance is a taking.

First, the ordinance requirement likely has a minimal economic impact on the restaurant. Compliance
with the ordinance is estimated to cost $1,000, and the city has found that businesses will likely recoup
that cost in increased sales. Also, because the ordinance does not interfere with the operation of the
restaurant, the owner may still earn a reasonable return on its investment in the property.

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Second, the ordinance does not interfere with the business’s investment-backed expectations. As in Penn
Central, the challenged law does not interfere with the owner’s “primary expectation” for use of the
property—in Penn Central, as a railroad terminal, and here, as a restaurant. Further, the ordinance does
not prevent the restaurant from expanding to meet the changing business environment.

Third, the character of the government action does not weigh in favor of a taking. While Penn Central
does say that a “physical invasion” is more likely to pose a taking, Loretto suggests that the Court’s main
concern is with physical invasions by third parties. Also, like the landmark law challenged in Penn
Central, the ordinance here “adjust[s] the benefits and burdens of economic life to promote the common
good.” Id. In Penn Central, the landmark law restricted development of the railroad terminal to promote
the common interest in preserving historic landmarks. Here, the ordinance requires the businesses to
install floodlights to promote the common interest in crime prevention and public safety.

Because the ordinance is clearly a valid exercise of the police power, it satisfies the takings clause’s
public-use requirement. Kelo v. City of New London, 545 U.S. 469 (2005).

In sum, all three factors weigh against finding a taking under the Penn Central balancing test.

Point Two (50%)
The permit condition may be unconstitutional as an uncompensated taking of property because the city
has not made an individualized determination that the easement condition is roughly proportional to the
impact of the restaurant’s proposed addition.

In Dolan v. City of Tigard, 512 U.S. 374 (1994), the Supreme Court set forth the test for determining
whether an exaction imposed by a government in exchange for a discretionary benefit conferred by the
government, such as a condition on the approval of a building permit in this case, constitutes an
uncompensated taking under the Fifth Amendment. The exaction is not a taking if (1) there is an
“essential nexus” between the “public need or burden” to which the proposed development contributes
and “the permit condition exacted by the city,” id. at 386, and (2) the government makes “some sort of
individualized determination that the required dedication is [roughly proportional] both in nature and
extent to the impact of the proposed development.” Id. at 391; see also Nollan v. California Coastal
Commission, 483 U.S. 825 (1987).

Here, the city likely can meet the nexus requirement. In Dolan, the landowner sought to double the size of
its business, which would have increased traffic on nearby roadways. In exchange for approving the
development, the city sought an easement for a bike and pedestrian path. The Court found the required
nexus between the easement and the city’s “attempt to reduce traffic congestion by providing for
alternative means of transportation.” 512 U.S. at 387. Here, a similar nexus likely exists between the
requested easement and the city’s interest in crime prevention and public safety. Increased patronage and
economic activity at the restaurant might attract additional crime to the area, and the requested easement
to install surveillance equipment would attempt to address that increased crime.

The exaction here, however, may fail the second prong of the Dolan test—that the exaction be roughly
proportional to the anticipated impact of the requested development. As noted, the city in Dolan claimed
that a bike and pedestrian path was needed to offset the increase in traffic due to the proposed doubling of
the business. The Court explained that the government must demonstrate that the additional traffic
reasonably was related to the requested exaction and that the government must “make some effort to
quantify its findings in support of the dedication for the pedestrian/bicycle pathway beyond the
conclusory statement that it could offset some of the traffic demand generated.” Id. at 395. Here, the city
did not carry its burden. The city simply speculates that increased patronage of the restaurant “might”

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increase crime, and that the surveillance equipment “might” alleviate this increased crime. Because the
city has not made “some effort to quantify its findings” in support of the easement, it has not shown that
the burden of the easement is roughly proportional to the benefits thought to flow from it.

Thus, the exaction appears to be an uncompensated taking of property in violation of the Fifth
Amendment as applied to the states through the Fourteenth Amendment.

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Question 8 – February 2015

State A, suffering from declining tax revenues, sought ways to save money by reducing expenses and
performing services more efficiently. Accordingly, various legislative committees undertook examinations
of the services performed by the state. One service provided by State A is firefighting. The legislative
committee with jurisdiction over firefighting held extensive hearings and determined that older
firefighters, because of seniority, earn substantially more than younger firefighters but are unlikely to
perform as well as their younger colleagues. In particular, exercise physiologists testified at the
committee’s hearings that, in general, a person’s physical conditioning and ability to work safely and
effectively as a firefighter decline with age (with the most rapid declines occurring after age 50) and
that, as a result, firefighting would be safer and more efficient if the age of the workforce was lowered.

State A subsequently enacted the Fire Safety in Employment Act (the Act). The Act provides that no
one may be employed by the state as a firefighter after reaching the age of 50.
A firefighter, age 49, is employed by State A. He is in excellent physical condition and wants to remain a
firefighter. His work history has been exemplary for the last two decades. Nonetheless, he has been told
that, as a result of the Act, his employment as a firefighter will be terminated when he turns 50 next
month.

The firefighter is considering (a) challenging the Act on the basis that it violates his rights under the
Fourteenth Amendment’s Equal Protection Clause, and (b) lobbying for the enactment of a federal
statute barring states from setting mandatory age limitations for firefighters.

1. Does the Act violate the Equal Protection Clause of the Fourteenth Amendment? Explain.

2. Would Congress have authority under Section Five of the Fourteenth Amendment to enact a statute
barring states from establishing a maximum age for firefighters? Explain.

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Analysis for Question 8 – February 2015

Legal Problems:

1. Does the Act violate the Equal Protection Clause of the Fourteenth Amendment?

2. Would Congress have authority under Section Five of the Fourteenth Amendment to enact a
statute barring states from establishing a maximum age for firefighters?

DISCUSSION

The lowest level of equal protection scrutiny—so-called “rational basis” scrutiny—applies when a state
government engages in age-based discrimination. The question is whether the distinctions drawn by the
Act on the basis of age are rationally related to a legitimate governmental purpose. The court is likely to
answer that question in the affirmative because safe and efficient firefight- ing is a legitimate
governmental purpose and, in light of the legislative committee’s findings, the Act is rationally related to
that purpose.

With respect to Congress’s power to enact a statute barring states from establishing a maximum age for
firefighters, Congress has the power to enforce the Fourteenth Amendment pursuant to its powers
under Section Five of the Fourteenth Amendment. However, Congress can exercise its authority only
if it does so in a way that is “congruent and proportional” to any constitutional violation that it may be
addressing. A federal statute prohibiting states from having a mandatory retirement age for firefighters
would not meet that standard. The statute would be unconstitutional because it would ban conduct by
a state that is not itself unconstitutional and that is not related to any constitutional violations by the
state.

Point One (50%)
A court would assess the constitutionality of the Act under the “rational basis” test. Here, the state
has a “legitimate interest” in promoting safe and efficient firefighting, and lowering the retirement
age is “rationally related” to achieving this interest. Thus, a court is likely to conclude that State A has
not violated the Equal Protection Clause of the Fourteenth Amendment.

The applicable constitutional provision is the Equal Protection Clause of the Fourteenth
Amendment, which states: “Nor shall any State . . . deny to any person within its jurisdiction the equal
protection of the laws.” Amend. XIV, Sec. 1. The allegedly unconstitutional discrimination is age-based
discrimination because employees like the firefighter cannot continue as firefighters once they reach 50
years of age.

The Supreme Court has developed three levels of scrutiny for equal protection claims: strict,
intermediate, and the lowest, “rational basis.” The Court has consistently applied rational basis
scrutiny to age-based classifications. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307
(1976) (upholding 50-year-old retirement age for state police); Kimel v. Florida Bd. of Regents,
528 U.S. 62 (2000) (applying rational basis review to age-based classification).

Under the rational basis test, the issues are whether State A has a “legitimate interest” that is served
by the discriminatory classification and whether the means used to achieve this legiti- mate state
interest are “reasonably related” or “rationally related” to that state interest. The Court generally applies
this test with substantial deference to legislative judgment. See, e.g., Railway Express Agency, Inc. v.
New York, 336 U.S. 106 (1949).

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Here, the firefighter will likely argue that State A is violating his right to the “equal protection of the
laws” by depriving him, and other firefighters, of employment solely because they have reached the
age of 50. More specifically, he will argue that he and the other firefighters 50 and older are being
forced to retire without regard to whether they are capable firefighters, an action not taken against those
under the age of 50.

State A will likely argue that lowering the retirement age for firefighters will improve workforce quality,
enhance public safety, and reduce expenses. Because these are “legitimate” state inter- ests, this
argument is likely to succeed.

Given the legitimacy of State A’s objectives, the question then becomes whether a mandatory
retirement at age 50 is reasonably related to attaining those objectives. Although the firefighter may
be a qualified firefighter notwithstanding his age, that is not the relevant question. The question is
whether State A has reason to believe that one’s physical fitness and ability to be a firefighter, in
general, decline with age. The question specifies that the legislature heard evidence from relevant
professionals in support of that position. Hence, the conclusion that a mandatory retirement age
would, in general, improve the fitness of the workforce is reasonable. Under the rational basis test, it is
not necessary for the fit between ends and means to be perfect. The fit merely has to be “reasonable”
or “rational.” See generally JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 756–58
(8th ed. 2010) (discussing application of rational basis test to mandatory retirement rules).

The fact that State A may have also enacted the statute to save money does not alter this analysis. One
legitimate purpose to which the lines drawn by the statute are rationally related is sufficient to uphold a
statute under the lenient rational basis test. Because State A has a legitimate govern- mental purpose for
enacting this statute, and because lowering the retirement age is rationally related to the achievement
of this purpose, a court is likely to conclude that the Act does not vio- late the Equal Protection Clause of
the Fourteenth Amendment.

Point Two (50%)
Because age-based discrimination, in the form of a mandatory retirement age, is not a plausible
constitutional injury, Congress does not have the authority under Section Five of the Fourteenth
Amendment to enact legislation to remedy that injury.

Congress’s powers are limited to those expressed or implied in the Constitution. To enact a law on a
particular topic, Congress must rely on some identified grant of legislative authority in the
Constitution. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Section Five of the
Fourteenth Amendment is one such grant of authority. See City of Boerne v. Flores, 521 U.S. 507
(1997).

While a mandatory retirement age for firefighters does not violate the Equal Protection Clause of the
Fourteenth Amendment (see Point One), “[l]egislation which deters or remedies constitu- tional
violations can fall within the sweep of Congress’[s] enforcement power even if in the pro- cess it
prohibits conduct which is not itself unconstitutional . . . .” Id. at 518. Congress’s power, however, is
remedial. It has been given the power “to enforce,” not the power to determine what constitutes a
constitutional violation. Id. at 519. In drawing “the line between measures that remedy or prevent
unconstitutional actions and measures that make a substantive change in the governing law,” the
Court, in City of Boerne v. Flores, stated that the constitutional question is whether there is a
“congruence and proportionality between the [constitutional] injury to be pre- vented or remedied and
the means adopted to that end.” Id. at 519–20. Lacking such a connec- tion, legislation may become
substantive in operation and effect. The proportionality requirement of Flores allows Congress to outlaw
conduct that courts likely would hold unconstitutional under existing judicial precedent. Congress may

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also outlaw a broader range of conduct to prevent constitutional violations. But Congress cannot
rely on its Fourteenth Amendment enforcement power to prohibit a kind of behavior that is unlikely to
involve a constitutional violation at all.

Because age is not a suspect classification under the Equal Protection Clause, states may dis-
criminate on the basis of age without offending the Fourteenth Amendment if the age classifica- tion in
question is rationally related to a legitimate state interest. The proposed federal statute would prohibit
mandatory retirement requirements that courts likely would find constitutional. See Kimel v. Florida
Bd. of Regents, 528 U.S. 62 (2000) (holding that a federal statute generally prohibiting age
discrimination by employers (including states) exceeded the power of Congress to legislate pursuant
to Section Five of the Fourteenth Amendment). Indeed, Congress’s pri- mary goal here would be to
outlaw a kind of discrimination that does not violate the Fourteenth Amendment. Flores clearly held
that Congress cannot, under its Fourteenth Amendment power, legislate to prohibit constitutional
behavior where there is no constitutional injury to be pre- vented or remedied. Therefore, a court
would likely hold that Congress would not have the power under Section Five of the Fourteenth
Amendment to enact a statute barring age require- ments for firefighters.

[NOTE: This question does not raise any questions about sovereign immunity under the Eleventh
Amendment inasmuch as Congress can abrogate that immunity when it acts pursuant to Section Five of
the Fourteenth Amendment. In addition, this question does not ask whether Congress could pass
such a statute under its Commerce Power. See, e.g., the Age Discrimination in Employment Act.]

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Question 9 – February 2016

State A, a leader in wind energy, recently enacted the “Green Energy Act” (“the Act”).

Section 1 of the Act requires that 50% of the electricity sold by utilities in the state come from
“environmentally friendly energy sources.” Wind energy, which is produced in State A, is
classified by the Act as an “environmentally friendly energy source.” Natural gas, which is not
produced in State A, is not classified by the Act as environmentally friendly. The preamble of the Act
contains express findings that the burning of natural gas releases significant quantities of greenhouse
gases into the atmosphere and requires the diversion of scarce water resources for use in gas-burning
thermoelectric plants.

Section 2 of the Act prohibits the Public Service Commission of State A from approving any new
coal-burning power plants in the state, unless it finds that “the construction of the plant is necessary to
meet urgent energy needs of this state.” A public utility in neighboring State B has applied for a permit
to build a coal-burning power plant on property it owns across the border in State A. The Commission
has denied the utility’s application based on its finding that there is no evidence of any urgent energy
needs in State A. The State B utility presented undisputed evidence of severe energy shortages in State
B, but the Commission rejected this evidence as irrelevant to the statutory exception.

Section 3 of the Act requires State A, whenever possible, to buy goods and services only from
“environmentally friendly vendors located within the state.” To qualify as an “environmentally friendly
vendor,” a firm must meet specified standards concerning energy efficiency, chemical use, and use of
recycled materials. A vendor located outside of State A meets all the standards to qualify as an
environmentally friendly vendor. The vendor has sought to sell goods and services to State A. The
relevant State A agencies have refused to purchase from this vendor, pointing out that the Act requires
them to purchase, if possible, only from “environmentally friendly vendors located within the state,” of
which there are several.

There is no federal statute or regulation relevant to this problem.

Which provisions, if any, of the Green Energy Act unconstitutionally burden or discriminate against
interstate commerce? Explain.

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Analysis for Question 9 – February 2016

Legal Problems:

1. May a state enact a law that has the effect of favoring an in-state industry at the expense
of an out-of-state industry where there are environmental reasons to favor the in-state industry?

2. May a state deny an out-of-state utility a permit to construct a coal-burning power plant
because the plant, although it meets urgent out-of-state energy needs, does not meet urgent
energy needs of the permitting state?

3. May a state favor in-state vendors when purchasing goods and services?

DISCUSSION

Even when Congress has not acted, the Commerce Clause of the United States Constitution
imposes by negative implication a limitation on state laws that discriminate against or unduly burden
interstate commerce.

Section 1 of the Act probably passes constitutional muster under the Commerce Clause. It is not
facially discriminatory because it applies equally to in-state and out-of-state utilities; and it does not
impede the import or export of electricity. The law’s incidental effect of favoring an in-state industry
(wind) at the expense of an out-of-state industry (natural gas production) probably does not trigger strict
scrutiny. Moreover, the burden on interstate commerce is not clearly excessive in light of the in-state
benefits.

Section 2 of the Act, as applied, probably does not pass constitutional muster. A state law or
administrative decision that explicitly discriminates against nonresidents violates the Commerce Clause
unless it is narrowly tailored to meet a legitimate, nonprotectionist purpose. The legislative ban on new
coal-burning power plants, with its limited exception when State A has urgent energy needs, is
discriminatory because it blocks the export of coal-produced electricity to other states. Even if reducing
pollution from coal-burning power plants is a legitimate, nonprotectionist purpose, the permit denial
likely fails strict scrutiny because there are other, nondiscriminatory means to accomplish the purpose.

Section 3 of the Act should pass constitutional muster. The Commerce Clause does not limit state
action when the state acts as a “market participant.” Thus, State A may favor in-state vendors when
purchasing goods and services.

Point One (40%)
Section 1 of the Act, which requires utilities to use environmentally friendly energy sources, is
probably valid given that it is not facially discriminatory against out-of-state energy producers and its
discriminatory impact is not in the market being regulated (generation of electricity), but instead affects
another market (natural gas production). Further, the law appears to satisfy the Pike balancing test,
given that its burdens on interstate commerce are not clearly excessive in light of the putative in-state
benefits.

State laws that discriminate against out-of-state commerce in favor of in-state commerce—either on
their face or in practical effect—are subject to strict scrutiny and thus a nearly per se rule of
invalidity. Even if not discriminatory, state laws that affect interstate commerce can also be
invalidated if the burden on interstate commerce is clearly excessive in relation to the putative in-state

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benefits. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

Section 1 is not facially discriminatory. Utilities may meet the requirement that 50% of their
electricity come from environmentally friendly energy sources by acquiring electricity from out- of-state
wind or other environmentally friendly energy sources; natural gas does not qualify as an
environmentally friendly energy source regardless of where it is produced.

Section 1, however, may be discriminatory in practical effect because it favors an in-state
industry (wind) over an out-of-state industry (natural gas). See Hunt v. Washington State Apple
Advertising Comm’n, 432 U.S. 333 (1977) (invalidating state statute that imposed labeling
requirements on out-of-state apple producers, effectively advantaging in-state apple producers). This
discriminatory-impact argument, however, likely fails under Exxon Corp. v. Governor of Maryland,
437 U.S. 117 (1978) (upholding ban on refiner-owned service stations by state in which no
refiners were located). In Exxon the Court read the Hunt discriminatory-impact test to apply to a
direct impact on out-of-state firms in the primary market (apples) regulated by the state. Exxon,
437 U.S. at 126. In Exxon, the discriminatory impact was in a market (refining) different from the
one regulated by the state (service stations), and so the state law was not found to be discriminatory.
Here, the discriminatory impact of Section 1 is felt in a market (natural gas production) different from
the one being regulated (generation of electricity). See also Minnesota v. Cloverleaf Creamery Co.,
449 U.S. 456 (1981) (upholding state law requiring milk to be sold in paper cartons, even though it
favored in-state paper industry over out-of-state plastics industry). Although evidence of protectionist
motives (such as statements in the legislative history) might be relevant to whether the law is
discriminatory in practical effect, see Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981),
the facts do not suggest any such motive.

Further, Section 1 does not appear to burden interstate commerce in ways that are clearly excessive in
relation to the putative in-state benefits. See Pike v. Bruce Church, Inc., supra. There is no indication of
an especially significant burden on interstate commerce. Cf. Bibb v. Navajo Freight Lines, Inc., 359 U.S.
520 (1959) (invalidating state law obstructing flow of interstate commerce); Edgar v. MITE Corp., 457
U.S. 624 (1982) (invalidating state law that imposed

Point Two (35%)
Section 2 of the Act, as applied by the Public Service Commission, is likely unconstitutional because
it discriminates against out-of-state consumers by preventing the export of electricity from new coal-
burning power plants. Although the environmental purposes of the law are legitimate, the law is not
narrowly tailored to meet them.

Section 2 of the Act, and the Public Service Commission’s denial of a permit for an out-of-state utility’s
coal-burning power plant, are discriminatory on their face. While a general ban on the construction of
coal-burning power plants would not be discriminatory because it would treat resident and nonresident
producers and consumers alike, the State A law creates an exception for the urgent energy needs of state
residents only. Thus, the law treats in-state electricity consumers more favorably than out-of-state
consumers and effectively bans the export of electricity from new in-state coal-burning plants. See H.P.
Hood & Sons, Inc. v. du Mond, 336 U.S. 525 (1949) (invalidating denial of license for plant to process
milk for export to another state).

The permit denial here discriminates against out-of-state consumers. If the application had been for the
sale of electricity to meet the urgent needs of consumers in State A, the application could have been
approved. Instead, it was denied because the State B utility only identified the urgent needs of
consumers in State B. The case is analogous to City of Philadelphia v. New Jersey, 437 U.S. 617

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(1978), where the Court invalidated a New Jersey law prohibiting the disposal of out-of-state waste in
New Jersey landfills, effectively precluding the export of waste disposal services and preferring in-
state consumers. In City of Philadelphia, the Court made clear that it does not matter whether the law
has a legitimate environmental purpose; the state may not use discriminatory means to accomplish it.

Insofar as the law is discriminatory, it is invalid unless it is narrowly tailored to meet a legitimate,
nonprotectionist purpose. See Maine v. Taylor, 477 U.S. 131 (1986) (upholding ban on importation of live
baitfish because of threat of parasites introduced into in-state waters). In particular, a law is not narrowly
tailored if there are less discriminatory alternative means to accomplish the state’s purpose. See, e.g.,
Hughes v. Oklahoma, 441 U.S. 322 (1979). Thus, although reducing air pollution from coal-burning
plants (the apparent reason for Section 2) may be a legitimate, nonprotectionist purpose, the law is not
narrowly tailored. There are less discriminatory alternatives that would better accomplish the state’s
objectives, such as (1) strict environmental regulation of all in-state coal-burning power plants, (2) an
across-the-board ban on all in-state coal-burning power plants (without any exception), and (3) an
exception for such plants for urgent energy needs that does not discriminate against out-of-state
consumers.

Point Three (25%)
Section 3, even though it discriminates against out-of-state vendors by requiring the state to prefer in-
state vendors, is a valid exercise of the state’s role as a “market participant.”

The state may discriminate in favor of residents when buying or selling goods and services because
the state is acting as a “market participant” rather than as a regulator of an economic activity. See
Reeves v. Stake, 447 U.S. 429 (1980) (state-owned cement plant could confine sales to state residents
during cement shortage). Thus, State A may limit its purchases to vendors in the state. See Hughes v.
Alexandria Scrap Corp., 426 U.S. 794, 810 (1976) (state bounty for scrap automobiles may favor in-
state processors of junked vehicles). Thus, even though the out- of-state vendor meets all of State A’s
requirements for an “environmentally friendly” vendor, State A is still entitled to favor in-state vendors
over the out-of-state vendor.

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Question 10 – July 2017

Businesses in the United States make billions of dollars in payments each day by electronic funds
transfers (also known as “wire transfers”). Banks allow their business customers to initiate payment orders
for wire transfers by electronic means. To ensure that these electronic payment orders actually originate
from their customers, and not from thieves, banks use a variety of security devices including passwords
and data encryption. Despite these efforts, thieves sometimes circumvent banks’ security methods and
cause banks to make unauthorized transfers from business customers’ bank accounts to the thieves’
accounts.

To combat this type of fraud, State A recently passed a law requiring all banks that offer funds transfer
services to State A businesses to use biometric identification (e.g., fingerprints or retinal scans) to verify
payment orders above $10,000. Although experts dispute whether biometric identification is significantly
better than other security techniques, the State A legislature decided to require it after heavy lobbying
from a State A–based manufacturer of biometric identification equipment.

A large bank, incorporated and headquartered in State B, provides banking services to businesses in every
U.S. state, including State A. Implementation of biometric identification for this bank’s business
customers in State A would require the bank to reprogram its entire U.S. electronic banking system at a
cost of $50 million. The bank’s own security experts do not believe that biometric identification is a
particularly reliable security system. Thus, instead of complying with State A’s new law, the bank
informed its business customers in State A that it would no longer allow them to make electronically
initiated funds transfers. Many of the bank’s business customers responded by shifting their business to
other banks. The bank estimates that, as a result, it has lost profits in State A of $2 million.

There is no federal statute that governs the terms on which a bank may offer funds transfer services to its
business customers or the security measures that banks must implement in connection with such services.
The matter is governed entirely by state law.

The bank’s lawyers have drafted a complaint against State A and against State A’s Superintendent of
Banking in her official capacity. The complaint alleges all the facts stated above and asserts that the
State A statute requiring biometric identification as applied to the bank violates the U.S. Constitution. The
complaint seeks $2 million in damages from State A as compensation for the bank’s lost profits. The
complaint also seeks an injunction against the Superintendent of Banking to prevent her from taking any
action to enforce the allegedly unconstitutional State A statute.

1. Can the bank maintain a suit in federal court against State A for damages? Explain.

2. Can the bank maintain a suit in federal court against the state Superintendent of Banking to enjoin
her from enforcing the State A statute? Explain.

3. Is the State A statute unconstitutional? Explain.

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Analysis for Question 10 – July 2017

Legal Problems:

1. Can a private company maintain a suit against a state in federal court seeking damages based
upon a claim that the state injured its business by enforcing an unconstitutional law?

2. Can a private company maintain a suit against a state official in federal court to enjoin that
official from enforcing an allegedly unconstitutional law?

3. Does a state law that requires a multistate business to adopt expensive security measures as a
condition of providing certain services in the state impose an unconstitutional burden on
interstate commerce?

DISCUSSION

The bank cannot maintain a suit against State A for damages in federal court. The Eleventh Amendment
precludes the federal court from exercising jurisdiction over a suit by a private party seeking to recover
damages from a state.

The court can hear the bank’s claim against the Superintendent of Banking because the bank has sued the
superintendent in her official capacity and is seeking injunctive relief only.

Although the statute does not discriminate against interstate commerce, it does impose a significant
burden on interstate commerce. A court could conclude that the law unconstitutionally burdens
interstate commerce if the court finds that the burden imposed is clearly excessive in relation to the
purported benefits. A balancing of benefits and burdens would require the court to evaluate the extent of
the actual burden the statute imposes on the bank and whether the statute has substantial fraud-protection
benefits.

Point One (30%)
Because states are immune under the Eleventh Amendment from suits for damages in federal court, a
federal court would dismiss the bank’s damages claim against State A if State A made a claim of
sovereign immunity.

The Eleventh Amendment provides that “the Judicial power of the United States” does not extend to
“any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of
another State . . . .” U.S. Const. amend. XI. As “one of the United States,” State A is immune from suit
unless it agrees to be sued. While this immunity of States from suits has been described as an
“anachronistic survival of monarchical privilege,” it is nonetheless firmly established. Kennecott Copper
Corp. v. State Tax Comm., 327 U.S. 573, 580 (1946) (Frankfurter, J., dissenting). While a state may
waive its immunity, see Clark v. Barnard, 108 U.S. 436, 447 (1883), there is no evidence that State A has
done so in this case. Here, the bank, a resident of State B, is suing State A for damages in federal court;
this is barred by the Eleventh Amendment.

[NOTE: A state’s Eleventh Amendment immunity may be abrogated in certain circumstances by
congressional action under Congress’s enforcement powers in the Fourteenth Amendment. There is no
such action by Congress in this case, so the exception is not germane.]

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Point Two (30%)
Pursuant to the doctrine of Ex parte Young, a suit against State A’s Superintendent of Banking to enjoin
the enforcement of an allegedly unconstitutional statute is not barred by the Eleventh Amendment.

“Official-capacity actions [against state officials] for prospective relief are not treated as actions
against the State.” Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985), citing Ex parte Young, 209 U.S.
123 (1908). Thus, even when a damages claim against the state is barred under the Eleventh Amendment,
a suit against public officials in their official capacity seeking an injunction may be maintained.

Here, the bank could maintain an action in federal court against State A’s Superintendent of Banking in
her official capacity to enjoin enforcement of an allegedly unconstitutional law.

[NOTE: An examinee might also point out that the federal court would have jurisdiction over this suit
because the bank’s claim raises a federal question.]

Point Three (40%)
Although the statute does not discriminate against interstate commerce, it does impose a significant
burden on interstate commerce. A court could conclude that the law unconstitutionally burdens
interstate commerce if the court determines that the burden imposed is clearly excessive in relation to the
purported benefits.

The Supreme Court of the United States has long held that the Constitution’s grant to Congress of the
power to regulate interstate commerce also limits, by implication, the right of state or local governments
to adopt laws that regulate interstate commerce. See John E. Nowak & Ronald D. Rotunda,
Constitutional Law § 8.1 (8th ed. 2010). This is often referred to as “dormant commerce clause”
analysis. A state law that discriminates against interstate commerce in a way “that operates as . . . a tariff
or trade barrier against out-of-state interests” is subject to strict review and is virtually per se
unconstitutional. Id. See, e.g., C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994). A
nondiscriminatory state law that imposes an “incidental” burden on interstate commerce will nonetheless
be unconstitutional if the burden it imposes is “clearly excessive in relation to the putative local benefits.”
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

The State A law in this case is facially nondiscriminatory. It applies equally to local banks and to banks
from other states. There are also no facts to suggest that it operates in a discriminatory fashion or that it
imposes a heavier burden on out-of-state banks offering services to State A businesses than it imposes on
in-state banks.

Because the law “regulates evenhandedly,” the question is whether it “effectuate[s] a legitimate local
public interest” and whether the burden, if any, is “clearly excessive in relation to the putative local
benefits.” Id.

State A plainly has a “legitimate local public interest” in protecting local businesses from the significant
losses that can result from electronic funds transfer fraud. State A’s law seeks to reduce such fraud by
requiring banks to adopt certain security measures that the legislature believes will reduce the risk of such
fraud. The legislature’s judgment that biometric identification is superior to other anti-fraud techniques is
not a judgment that a court will normally second-guess. State A adopted its law in response to lobbying
by a local business that stands to benefit from the law. But that does not mean that the law does not serve
a legitimate state interest. Cf. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981) (court
accepts judgment of Minnesota legislature that a ban on plastic nonreturnable milk containers serves

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environmental goals despite contrary evidence suggesting that such a ban would cause continued use of
“ecologically undesirable paperboard milk containers.”). However, it is unclear whether the security
measures required by State A produce real and substantial benefits.

The benefits of the law must be weighed against the burden it imposes. The law burdens interstate
commerce by increasing the expenses of out-of-state banks that wish to offer certain electronic banking
services to State A businesses. Compliance with the law would require the bank to make substantial
changes to its entire electronic banking system at a cost of $50 million. This cost is substantial enough to
deter the bank from offering certain services in State A at all. A court could find that this is a real and
substantial burden placed on interstate commerce.

In sum, if the benefits of the security measures required by State A are substantial enough to justify the
burdens, the statute is constitutional. Otherwise, it is not.

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Question 11 – July 2018

In Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court held that Congress has the power under the
Commerce Clause of Article I, Section 8, of the Constitution “to prohibit the local cultivation and use of
marijuana,” even when applicable state law permits such cultivation and even when the cultivation and
use are entirely within state borders. At the time of that decision, at least nine states authorized the use of
marijuana for medicinal reasons. Since the decision, medicinal use of marijuana has been approved in
numerous other states, and some states have also begun to allow the recreational use of marijuana.

Concerned with the widespread disregard of federal law in states that have “legalized” marijuana use,
Congress recently passed the Federal Drug Abuse Prevention Act. Sections 11 and 15 of that Act provide
as follows:

Section 11. Any state law enforcement officer or agency that takes any individual person
into custody for violation of any state law must make a reasonable investigation within
five business days to ascertain whether the individual in custody was under the influence
of marijuana at the time of the alleged offense. Such officers or agencies must file
monthly reports with the federal Drug Enforcement Agency on the outcome of these
required investigations, including the name of any individual determined to have been
under the influence of marijuana at the time of his or her alleged offense.

Section 15. No state government, state agency, or unit of local government within a state
shall be eligible to receive any funding through the federal Justice Assistance Grant
program unless use of marijuana is a criminal act in that state.

The Justice Assistance Grant program has been in existence for many years. It is the primary program
through which the federal government provides financial assistance for state law enforcement agencies.
Last year, the federal government made approximately $300 million in grants to state and local law
enforcement agencies through this program. Congress has appropriated another $300 million for such
grants in the upcoming fiscal year.

State A has a population of about 4 million people. Its crime rate is below average. Last year, total
spending by law enforcement agencies in State A was $600 million, of which $10 million came from
federal grants under the Justice Assistance Grant program.

State A recently adopted legislation decriminalizing the use of marijuana for all purposes by persons over
the age of 21.

As applied to State A,

1. Is Section 11 of the Federal Drug Abuse Prevention Act a constitutional exercise of federal power?
Explain.

2. Is Section 15 of the Federal Drug Abuse Prevention Act a constitutional exercise of federal power?
Explain.

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Analysis for Question 11 – July 2018

Legal Problems:

1. May the federal government force a state law enforcement officer or agency to assist in the
enforcement of federal drug laws by requiring the officer or agency to conduct investigations of
possible drug use by persons they take into custody and to make reports to the federal
government?

2. May the federal government condition the grant of federal money for state and local law
enforcement activities on a state’s adoption of laws that criminalize use of federally controlled
drugs?

DISCUSSION

In the Federal Drug Abuse Prevention Act, Congress has sought to induce the states to adhere to the
federal policy of criminalizing the use of marijuana. The issue in this problem is whether Congress’s
efforts in this regard unconstitutionally intrude upon the sovereignty that the Constitution reserves to the
states.

Section 11 of the Federal Drug Abuse Prevention Act is unconstitutional because it seeks to commandeer
state officers or agencies to provide assistance in the enforcement of federal drug laws. Federal directives
requiring the states to carry out federal regulatory programs are inconsistent with the system of dual
sovereignty created by the federal structure of the Constitution.

Section 15 of the Federal Drug Abuse Prevention Act, on the other hand, is a constitutional exercise of
Congress’s spending power. When Congress provides funds to the states, it may condition those funds on
a state’s compliance with federal directives, provided that the law meets certain requirements. Those
requirements are met here: Congress’s decision to spend money on state and local law enforcement
activities is in pursuit of the general welfare. The condition it is imposing on a state’s receipt of that
funding is unambiguous. The requirement that federally unlawful drug use must be criminalized at the
state level bears a close relationship to the law enforcement objectives of the spending program, and the
condition imposed by the federal government is not barred by any constitutional provision. Finally,
Congress’s threat to withhold a relatively small amount of federal money is not so coercive as to
improperly intrude upon state sovereignty.

Point One (50%)
The federal government may not command a law enforcement officer or agency of State A to investigate
and report on potential violations of federal law.

The central issue raised by the statute described in this question (the “Federal Drug Abuse Prevention
Act”) is whether its provisions violate fundamental principles of federalism. Under the system of dual
sovereignty established by the Constitution, the States “retai[n] a significant measure of sovereign
authority,” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549 (1985). The Tenth
Amendment confirms that the powers of the federal government are subject, in some cases, to limits
necessary to protect “state sovereignty” from federal intrusion. One of those limits is that Congress may
not “require the States to govern according to Congress’[s] instructions.” New York v. United States, 505
U.S. 144, 162 (1992). See also Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S.
264, 288 (1981) (federal law that “commandeers the legislative processes of the States by directly
compelling them to enact and enforce a federal regulatory program” is unconstitutional); Murphy v.

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NCAA, ____ U.S.____, 138 S. Ct. 1461 (2018).

In Printz v. United States, 521 U.S 898, 935 (1997), the Supreme Court held that “commandeering” of
State officials was also unconstitutional under the federalism principle emanating from the Tenth
Amendment. In Printz, Congress ordered state law enforcement officials to conduct background checks of
persons purchasing firearms. By legislating to force the law enforcement officers to take certain actions
“in their official capacities as state officers,” the Court said, Congress was acting to control their actions
“as agents of the State.” Id. at 930. Such an effort by the federal government “to direct the functioning of
the state executive, and hence to compromise the structural framework of dual sovereignty” is
unconstitutional. Id. at 932. The Court held definitively that “the Federal Government may neither issue
directives requiring the States to address particular problems, nor command the States’ officers, or those
of their political subdivisions, to administer or enforce a federal regulatory program.” Id. at 935. Section
11 of the Federal Drug Abuse Prevention Act violates federalism principles. The law requires a State A
law enforcement officer or agency to undertake investigations aimed at detecting violations of federal
drug laws and to report to federal authorities on suspected violations. It seeks to compel state officers to
participate in the enforcement of the federal laws against the use of marijuana and thus unconstitutionally
intrudes upon state sovereign authority.

Point Two (50%)
The federal government probably can deny federal law enforcement funds to State A if it does not
criminalize the use of marijuana.

Section 15 of the Federal Drug Abuse Prevention Act seeks to implement the federal anti- marijuana
policy by denying funding from the Justice Assistance Grant program to states that do not criminalize use
of marijuana. Congress may use a threat to withhold federal money to induce a state to exercise its
sovereign authority (e.g., by passing certain laws) to achieve congressional goals. The Supreme Court has
repeatedly held that such threats are constitutional exercises of Congress’s power to spend money for the
“general welfare of the United States” unless they are unduly coercive.

In South Dakota v. Dole, 483 U.S. 203 (1987), the Court held that Congress may condition the states’
receipt or use of federal funds on state compliance with “federal statutory and administrative directives.”
483 U.S. at 206. When using its spending power in this way, Congress must satisfy certain requirements.
First, the spending must be for the general welfare, although a “court should defer substantially to the
judgment of Congress” in this regard. Id. at 207. Second, the condition imposed by Congress must be
imposed unambiguously. Third, the condition imposed must be related “to the federal interest in particular
national projects or programs.” Id. Fourth, the condition imposed must not “be used to induce the States
to engage in activities that would themselves be unconstitutional.” Id. at 210. Finally, a condition will be
deemed improper if it is “so coercive as to pass the point at which ‘pressure turns into compulsion.’” Id.
at 211. See National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) (conditioning
continued receipt of Medicaid funds on compliance with new requirements was unconstitutional
“economic dragooning that leaves the States with no real option but to acquiesce . . .” because threatened
funding constituted over 10% of State budgets. Id. at 582).

In this case, Section 15 of the Act is probably constitutional. First, both the federal spending program and
the imposed condition are in pursuit of the general welfare. The Supreme Court has said that Congress’s
view of “the general welfare” deserves substantial deference, and there is no reason to believe that a court
would second-guess Congress’s judgment that the general welfare is served by assisting with the funding
of state law enforcement agencies in states that criminalize the use of drugs that Congress considers
dangerous.

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The other three basic requirements are also satisfied. The condition being imposed on states that receive
funding from this particular program is unambiguous. The condition also relates generally to the purpose
of the federal funding, which is evidently to support and improve state and local law enforcement.
Finally, a requirement that the states criminalize the use of certain drugs does not induce any state to
engage in unconstitutional activity.

The threat of a loss of Justice Assistance Grant funds is probably not so coercive as to amount to an
unconstitutional intrusion on State A’s sovereignty. The amount of money involved in this case ($10
million) is only a small fraction (less than 2%) of State A’s law enforcement budget and thus likely a far
smaller part of its total state budget. This is utterly unlike the substantial economic loss (typically 10% of
the entire state budget) that faced the states in Sebelius, where the Court concluded that the states had “no
real option” other than to follow federal wishes. Rather, this is much closer to the “relatively mild
encouragement” that was upheld in South Dakota v. Dole (requiring South Dakota to raise drinking age to
21 years or lose highway funding amounting to less than half of one percent of the state’s total budget). In
short, although the funding condition acts as an incentive for State A to adhere to federal policy, it does
not “indirectly coerce[]” the State “to adopt a federal regulatory system as its own.” Sebelius, 567 U.S. at
578. It therefore is a proper exercise of Congress’s spending power and does not run afoul of
constitutional principles of federalism.

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Question 12 – July 2019

Trident Healthcare Inc., incorporated in State X, owns and operates hospitals and clinics in States X, Y,
and Z. Medical information for all of Trident’s current and former patients is stored on computer
equipment housed at Trident’s corporate headquarters in State X.

Last December, unknown persons hacked into Trident’s computer system and obtained the personal
medical information of at least 30,000 Trident patients, including 5,000 patients living in State X, 10,000
patients living in State Y, and 15,000 patients living in State Z. However, there is no evidence that the
thieves have used any of this medical information.

The State X Privacy Protection Act imposes an absolute duty on health-care providers, including
companies like Trident, to keep patient medical information private. The legislature concluded that the
“invasion of privacy” resulting from data breaches causes significant harm to the individuals involved.
Thus, the law allows any person whose private medical information is obtained by an unauthorized third
party in any manner to recover actual damages from the health-care provider. Further, because such
damages are sometimes difficult to quantify, the state law provides that an individual is entitled to a
minimum statutory (nominal) damages award of $500 to compensate for this “invasion of privacy.” This
state law is not preempted by any federal law.

A man, who is a citizen of State X and whose medical records were stored in the Trident computers, has
brought a class action in the federal district court of State X against Trident on behalf of himself and all
the persons whose health-care information was taken during the hacking of Trident’s computer system.
The man is represented by counsel with extensive experience in class actions of this type. The complaint
is limited to claims arising out of the hacking of medical information. It seeks no actual damages but does
seek statutory damages on behalf of all members of the class pursuant to the State X statute. The
complaint alleges the facts detailed above and alleges that the court has jurisdiction based on diversity,
pursuant to 28 U.S.C. § 1332. The complaint also alleges that most if not all of Trident’s patients are U.S.
citizens who are domiciled in the states where they receive their health care.

State X’s legislatively adopted Civil Practice Rules provide that “if any statute or law of this state allows
for an award of statutory or nominal damages, recovery of such damages may be sought in an individual
action but not in a class action.”

Trident has moved to dismiss the man’s class action brought in federal district court, arguing that (i) the
court lacks subject-matter jurisdiction over the state-law claim raised by the class action, (ii) the action
fails to allege a claim upon which relief can be granted because of the state law barring class actions to
recover statutory damages, and (iii) the man does not have standing to bring a statutory damages claim in
federal court.

With respect to each of these arguments, how should the court rule? Explain.

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Analysis for Question 12 – July 2019

Legal Problems:

1. Does a federal district court have diversity jurisdiction over a class action when (a) the amount in
controversy is $15,000,000 and (b) there is no diversity between the defendant and the class
representative, though there is diversity between the defendant and other class members?

2. Does a state-law rule prohibiting class actions for recovery of statutory damages apply to bar a
class action brought in federal court when the state rule is contained in a state statute governing
court procedure and is not tied to any particular state-law substantive right?

3. Do the members of a plaintiff class have standing to bring a claim in federal court when they
cannot prove tangible damage to themselves but do have a claim for statutory damages for
violations of privacy rights protected by state law?

DISCUSSION

Trident’s motion to dismiss for lack of subject-matter jurisdiction should be denied. A federal district
court can exercise diversity jurisdiction over a class action if the amount in controversy exceeds
$5,000,000 and any member of the class is diverse from any defendant (i.e., there is minimal diversity).
Here, those requirements are met. Each member of the class is alleged to be entitled to statutory damages
of $500 and there are at least 30,000 class members. If the class claims are upheld, total damages will be
at least $15,000,000, far in excess of the $5,000,000 required to be in controversy for this kind of action.
There is minimal diversity because the defendant is a citizen of State X, while some members of the class
live in States Y and Z.

When a claim based on state-law rights is brought in federal court, it is governed by federal procedure
law. So federal procedural rules for class actions govern, not State X procedural rules. The federal court is
not bound by State X’s law barring class actions to recover statutory damages. Thus, the action should not
be dismissed on this basis.

The plaintiff probably has standing to bring the statutory (nominal) damages claim in federal court. The
issue is whether the alleged “invasion of privacy” suffered by the plaintiff is an “injury in fact” even
though the plaintiff cannot prove any actual damages. Given the state’s determination that data breaches
involving private medical information cause harm to individual privacy even when actual damages cannot
be shown, it is likely that a federal court would conclude that the invasion of privacy resulting from
disclosure of private medical information is sufficiently concrete to warrant a finding of standing.

Point One (35%)
Because the amount in controversy in this class action exceeds $5,000,000 and there is minimal diversity,
the federal district court has subject-matter jurisdiction to hear the case under its diversity jurisdiction.

In 2005, Congress amended the federal diversity-jurisdiction statute, 28 U.S.C. § 1332, to allow large
class actions to be brought in federal court, even if there is not complete diversity between the defendants
and the plaintiffs. Under § 1332(d)(2)(A), a federal district court can exercise diversity jurisdiction over a
class action if (i) “the matter in controversy exceeds the sum or value of $5,000,000” and (ii) “any
member of a class of plaintiffs is a citizen of a State different from any defendant” (i.e., “minimal
diversity”).

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Here, those requirements are met. First, the amount in controversy exceeds $5,000,000. The plaintiff is
suing on behalf of a class of at least 30,000 plaintiffs, each of whom has a statutory damages claim of
$500. These claims can be aggregated in determining jurisdiction. See 28 U.S.C. § 1332(d)(6). Thus, if
the plaintiff’s class claim is upheld, the amount in controversy exceeds $15,000,000.

Second, there is minimal diversity between some members of the plaintiff class and the defendant.
Trident is a citizen of State X, where it is incorporated and where its corporate headquarters are located.
See 28 U.S.C. § 1332(c)(1) (a corporation is a citizen of its state of incorporation and the state where it
has its principal place of business); Hertz Corp. v. Friend, 559 U.S. 77 (2010) (corporation’s principal
place of business is state “where the corporation’s high level officers direct, control, and coordinate the
corporation’s activities”). All that is required, therefore, is that at least one member of the plaintiff class
be a citizen of a state other than State X.

Here, 10,000 members of the plaintiff class live in State Y, and 15,000 members live in State Z. The
complaint further alleges that most, if not all, of these class members are U.S. citizens. Assuming that
Trident does not contest these factual claims, there is almost certainly at least one member of the class
who is a citizen of either State Y or State Z and therefore diverse from Trident, a citizen of State X. A
U.S. citizen is a citizen of the state in which she has her domicile. Domicile is defined as “residence in
fact, combined with the intention of making the place of residence one’s home for an indefinite period.”
Friedenthal, Kane & Miller, Civil Procedure § 2.6 at 31 (4th ed. 2005). Among the 25,000 members of
the class actually living in States Y or Z, there will doubtless be thousands who meet the requirements of
U.S. citizenship and domicile in those states, so that the minimal diversity requirements are met. It does
not matter that there are also members of the plaintiff class (i.e., those living in State X) who are not
diverse from the defendant.

[NOTE: According to the class-action provisions of the diversity-jurisdiction statute, a court may decline
(and sometimes must decline) to exercise jurisdiction when a class involves a significant proportion of
nondiverse class members. See 28 U.S.C. § 1332(d)(3), (d)(4) (court “may” decline when nondiverse
members constitute greater than one-third and less than two-thirds of total class; and court “shall” decline
when nondiverse members constitute greater than two-thirds of total class). Here, the number of State X
class members (5,000) is less than one-third of the total class (at least 30,000), and thus these special
provisions do not apply. In addition, the further exceptions to the class-action diversity rules (for class
actions against state officials, class actions with fewer than 100 members, and class actions involving
securities or corporate fiduciary claims) are not raised by the facts of this question. See 28 U.S.C. §
1332(d)(5), (d)(9).]

Point Two (35%)
When a claim based on state-law rights is brought in federal court, it is governed by federal procedure. So
federal procedural rules for class actions govern, and the federal court is not bound by State X’s
procedural law barring class actions to recover statutory damages. Thus, the action should not be
dismissed because of State X’s law.

This action is appropriate if it is authorized by Federal Rule of Civil Procedure 23 regardless of what the
state procedural law says. In Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the Supreme Court held
that federal courts sitting in diversity must look to state law for the substantive rules of decision
governing such cases. However, in a series of subsequent cases, the Court made clear that federal law
would continue to govern procedural matters in federal court, even if the federal procedure affected the
outcome of the litigation. See Byrd v. Blue Ridge Rural Electric Coop., Inc., 356 U.S. 525 (1958) (federal
rule providing for jury determination of particular issue controls in federal court despite contrary state
rule requiring the issue to be decided by a judge). If there is a federal procedural rule that governs an

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issue, it applies “unless it exceeds statutory authorization or Congress’s rulemaking power.” See Shady
Grove Orthopedic Associates v. Allstate Ins. Co., 559 U.S. 393, 398 (2010) (citing Burlington Northern
R. Co. v. Woods, 480 U.S. 1, 5 (1987)).

In Shady Grove, the Court considered a New York law barring class actions to enforce statutory damages
claims. The Court concluded that such actions can be maintained in federal court, despite the state law, if
the action is authorized by Rule 23. According to the Court, Rule 23 is both a procedural rule within the
scope of the Rules Enabling Act and a rule that entitles “a plaintiff whose suit meets the specified criteria
to pursue his claim as a class action.” 559 U.S. at 398. Thus, a class action may be maintained in federal
court even though there is a contrary state-law provision forbidding class actions.

[NOTE: To bring a class action under Rule 23, a plaintiff must first satisfy the requirements of Rule
23(a). Here, the requirements of Rule 23(a) (numerosity, commonality, typicality, and adequate
representation) are satisfied.]

[NOTE: The facts of this problem fall squarely within the holding of Shady Grove, so there should be no
question that Rule 23 should be applied, not the contrary law of State X. However, the Court was
fractured as to the rationale for its decision in Shady Grove, and Justice Stevens (a critical fifth vote)
suggested that Rule 23 would not apply if a state law limiting class actions is “so intertwined with a state
right or remedy that it functions to define the scope of the state-created right.” 559 U.S. at 423. Thus,
some examinees might emphasize that the state law in this problem is a general law that does not directly
modify rights granted by any particular substantive law, including the State X Privacy Protection Act at
issue in this question.]

Point Three (30%)
The court is likely to conclude that there is a “concrete” injury arising from the hacking of the medical
information, as required for there to be standing under Article III. Thus the court should probably not
grant the motion to dismiss for lack of the plaintiff’s standing.

Federal court jurisdiction is limited by Article III of the Constitution to “Cases” and “Controversies.”
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). To establish standing, a plaintiff must show (1) an
injury in fact, (2) fairly traceable to the challenged conduct of the defendant, and (3) likely to be redressed
by a favorable judicial decision. Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S.Ct. 1540, 1547 (2016), citing
Lujan at 560–561.

Here, the plaintiff’s claimed injury is the invasion of his privacy resulting from unauthorized access by
third-party hackers to his personal medical information. The facts indicate that his injury was a result of
the defendant’s failure to protect that information (as it was required to do by the State X Privacy
Protection Act). A favorable decision would redress the injury through an award of damages, but that
award would be based on the statute’s provision for statutory damages, not on proof of the actual extent
of harm to the plaintiff. Thus, the issue is whether the asserted “invasion of privacy” counts as an “injury
in fact” when the plaintiff does not claim that he, or any member of the class, suffered any actual damage
and seeks to recover only statutory damages.

In Spokeo, 136 S.Ct. at 1549, the Supreme Court concluded that “Article III standing requires a concrete
injury even in the context of a statutory violation.” In Spokeo, inaccurate information about a plaintiff was
included in a credit-reporting database, but there was no evidence that the plaintiff had been harmed by
that fact. The Supreme Court held that there was no “injury” for standing purposes, despite the fact that a
state law would have awarded the plaintiff statutory damages based on the presence of the inaccurate
information alone. The Court emphasized that the “injury in fact” element of the Court’s standing test
required a showing that the plaintiff suffered “an invasion of a legally protected interest” that is

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