QUESTION: Are there any meaningful differences in the standards for using the 14th Amendment to invalidate State action based on Substantive Due Process for enumerated or unenumerated rights? In Lochner and Griswald, after finding that the case implicated a fundamental right, the Court applied strict scrutiny. Was this necessary with the incorporation cases?
ANSWER: There is no difference in the standards. (Many of the incorporation cases were decided before the modern era, or in the field of criminal procedure, thus we did not see this reference to strict scrutiny. But there is no difference in the practical effect.)
QUESTION: In the context of determining if an unenumerated right is "fundamental" and if a statute violates that right, how narrowly can the Court frame the issue?
ANSWER: The justices differ on this issue. I think it is fair to say that there is a large amount of discretion in how a judge perceives the "right" at issue in a given case. (And it may partly depend on how the litigant has framed or argued the point.)
QUESTION: In Bowers, the Court asked if there was a fundamental right for homosexuals to engage in sodomy when the statute actually prohibited all acts of sodomy, while in Lawrence they frame the issue more generally not to find a fundamental right in homosexual sex but to protect the "most private human contact in the most private places." Is there a standing or a advisory opinion problem when the Court frames the issue to encompass the constitutionality of the entire statute instead of the statute as applied in the case?
ANSWER: You raise two related but distinct questions. The framing of the right at issue is a conceptual question: what right protected by the Constitution is arguably violated by this governmental action? The facial vs. as-applied distinction concerns the nature of the litigant's constitutional challenge. Has the litigant argued that the statute is facially invalid, meaning that there are no constitutional applications of the statute? Or instead has she argued that, although the statute might be valid as applied to other persons, it is unconstitutional as applied to her? (The right at issue might be characterized as narrowly or broadly in either a facial or an as-applied challenge.) And yes, there is sort of a standing-like issue when a litigant is attempting to use her case to challenge the constitutionality of a statute as applied to other persons. This is why facial challenges are generally disfavored (outside the context of the First Amendment).
QUESTION: Would it matter if the law had been geared explicitly at only homosexual sodomy and didn't regulate sodomy generally?
ANSWER: Not to sound too Clintonian, but it depends on what you mean by "it" here. Again, the conceptualization of the right at issue sort of exists at the level of understanding the Constitution. So what the statute proscribes should not really affect that analytic move. But yes, what the statute proscribes (and what conduct the litigant has or will engage in) will affect whether the statute can validly be attacked as facially unconstitutional.
QUESTION: Is there a good way of distinguishing the Minnesota v. Clover/ Exxon (no discrimination) decisions from the Hunt (yes discrimination) decision based strictly on the DCC doctrinal framework?
ANSWER: Not in my opinion. I think the only way to understand those decisions is to accept that the justices must have believed, without saying so in the opinion, that the purpose of the statute in Hunt was protectionist, while it was not in Clover Leaf or Exxon.
QUESTION: In all of these cases I think the regulation was equally applicable to in-state actors as out-of-state ones (although in Exxon there were no in-state companies w/ the vertical integration) and was found to quantitatively discriminate practical effect in favor of local industries over out-of-state ones (In Exxon, 99 percent of the companies insulated and benefitted were in-state). Why isn't the question of discrimination in practical effect an empirical one?
ANSWER: The Court sort of says it is an empirical question. But I don't think that actually bears scrutiny, as there was no real empirical difference (as you suggest) in the discrimination in the cases you identified. So what explains it? I think that it functions as an additional doctrinal tool (though the Court has not so said) to infer that the law was motivated by protectionism.
QUESTION: Are there any useful distinctions b/w these cases or is the Court purely guided by its belief about whether the state was motivated by a protectionist purpose when deciding if the law is discriminatory in practical effect?
ANSWER: Nothing useful that I have found. If you find something, let me know.
QUESTION: I just took your 2001 final and had a question about Essay Question A. I know this was before Raich came down, but is it relevant/correct to say that the EPA is a broad regulatory scheme that deals with interstate commerce (interstate selling of eagle feathers)?
ANSWER: Perhaps, yes. And I think the question would then be whether, as in Raich, Congress is justified in regulating non-commercial, intrastate instances of the activity that is regulated by the broader regulatory scheme. (See my longer answer below.)
QUESTION: Also, is the lack of jurisdictional elements in the statute relevant?
ANSWER: Sure, it is relevant in the sense that, were there a jurisdictional element, it might have made the statute clearly constitutional. Thus, the lack of one makes it harder to justify the statute.
QUESTION:I have a question regarding your preference for exam essay responses. Several of your answers to the practice exams state that the only plausible option for challenging X is Y. In particular, the a 2001 question asks "On what basis could the government argue that the lawsuit is nonjusticiable." Then your answer states that the only plausible justiciablility challenge the government can make is to the plaintiff's standing. Does this mean that if we quickly explain why other possible justiciability challenges are not plausible we are wasting time - essentially discussing non-issues? Or are your responses just explaining the real issue that require in depth analysis, but you still expect us to justify why the other justiciability issues are not relevant.
ANSWER: Not necessarily. And it is hard for me to give precise guidance on the question. Let me do the best I can.
QUESTION:I have a question regarding your preference for exam essay responses. Several of your answers to the practice exams state that the only plausible option for challenging X is Y. In particular, the a 2001 question asks "On what basis could the government argue that the lawsuit is nonjusticiable." Then your answer states that the only plausible justiciablility challenge the government can make is to the plaintiff's standing. Does this mean that if we quickly explain why other possible justiciability challenges are not plausible we are wasting time - essentially discussing non-issues? Or are your responses just explaining the real issue that require in depth analysis, but you still expect us to justify why the other justiciability issues are not relevant.
ANSWER: Not necessarily. And it is hard for me to give precise guidance on the question. Let me do the best I can.
If you were to briefly explain why non-plausible paths are indeed not plausible, you almost certainly would receive some points. (It depends on how far out of the range of plausibility.) But you are also using time that might be used on addressing other things. So there is no harm -- and potentially some good -- in a brief explanation you describe. But once you get beyond brief, you are taking important time away from the issues that are much more important to address in some detail. Perhaps the best way to think of it is this: I award points for any discussion that is relevant and correct. But those points are scaled to their significance in the question.
I'm not sure this is completely responsive to your question, but it is probably the best I can do in accurately reflecting how I evaluate student essays.