Constitutional Law - Section 3
December 7, 2011
Professor Harpaz
Final Examination


Question I
(Suggested time: 75 minutes) (60 points out of 144 total exam points)

    The State of Stone charges nonresidents higher fees than residents for fishing licenses and vessel registrations. The differential fees include:

    • Commercial fishing license: $240 (residents); $720 (non-residents)

    • Recreational fishing license: $100 (residents); $300 (non-residents)

    • Vessel registration: $320 (residents); $640 (non-residents)

The license and registration fees must be paid on an annual basis.

     On May 18, 2011, Brenda Brodie (BB), a resident of Massachusetts who has a commercial fishing license, a recreational fishing license, and three vessel registrations issued by the State of Stone, filed a complaint in the Federal District Court for the District of Stone against the State of Stone challenging the constitutionality of Stone’s differential fees as violative of the United States Constitution. The State has filed an answer denying that its fee structure violates the U.S. Constitution.

    The district court held a preliminary hearing in the case. At that hearing, the State of Stone presented evidence in defense of its fee structure. First, the State introduced a federal statute, the State Authority to Regulate Fishing and Hunting Act of 2005. The Act provides in relevant part: “It is the policy of Congress that each State be permitted to regulate fish and wildlife within its boundaries, including establishing a system of licenses and permits related to fishing and hunting.” The State of Stone argues that this federal statute expressly allows it to impose the differential fee structure that BB is challenging and precludes any dormant Commerce Clause objection that BB could otherwise make.

    The State of Stone also introduced a variety of other evidence: (1) evidence that the supply of fish in its waters is diminishing due to over fishing; (2) evidence that 15% of the commercial fishing licenses, recreational fishing licenses, and vessel registrations that it issues are to out-of-state residents: (3) evidence that the fishing industry is an important part of the Stone economy; and (4) evidence that the State spends considerable amounts of money each year to patrol and protect its waterways and secure the safety for human consumption of the fish found in its waters. The State also introduced evidence about its efforts to enhance and conserve its fisheries for commercial and recreational uses.

    You are a law clerk for the judge assigned to the case. The judge has asked you to write an analysis of the constitutional arguments that BB can make in challenging Stone’s differential fee structure as well as the constitutional arguments that the State of Stone can make in defending its differential fee structure against a constitutional challenge.


Question II
(Suggested time: 60 minutes) (48 points out of 144 total exam points)

    According to a study by the National Highway Traffic Safety Administration, traffic accidents cost Americans approximately $240 billion each year. This amounts to over $1500 for each American. These costs include the costs of medical care, emergency and police services, property damage, insurance costs, and lost productivity. While there are many causes for traffic accidents, Congress has become particularly concerned with the increasing number of older drivers who continue to drive even though their ability to drive safely has become compromised. Accident statistics demonstrate that older drivers as a group are involved in more accidents than other drivers. This trend is particularly striking for drivers over the age of 85 who are involved in 4 times as many fatal accidents as teenage drivers. While a few states have introduced a system of periodically re-testing drivers once they reach a particular age, most states have refrained from introducing such regulations.

    To address this problem Congress recently enacted the Safety of Older Drivers Act (SODA). Under this statute, drivers over the age of 79 are required to take and pass a federally-created and administered driving test every 3 years. This test is administered by the U.S. Department of Transportation. A state may avoid subjecting its citizens to the federal testing requirement if a state adopts an older driver safety program which includes continuing driver education and periodic testing for drivers over the age of 79. States are eligible for grants from the Department of Transportation to create such education and testing programs.

    The Safety of Older Drivers Act went into effect in January, 2011. Under the Act, drivers over the age of 79 who fail to take and pass the SODA driving test are prohibited from operating motor vehicles anywhere in the United States even if they have a state-issued driver’s license. Drivers who violate the statute by driving without passing the Department of Transportation driving test are subject to fines of up to $5000 with even steeper monetary penalties for repeat offenders.

    Don Drake (DD) is an 81 year old resident of the State of Stone. He has had a driver’s license for over 60 years and has a perfect driving record including no accidents and no moving violations. He failed to pass the SODA driving test each of three times he took the test and is no longer permitted to drive. Without being able to drive a car, he has no other way to get from his home in a rural area of Stone to visit friends and family and purchase food and other supplies in the nearest town which is 15 miles from his home. He has now filed suit challenging the constitutionality of the Act. He argues that the law exceeds the power of Congress to regulate interstate commerce, intrudes on state autonomy, and violates both the Due Process and Equal Protection guarantees protected by the the Fifth Amendment Due Process Clause.

    You are a law clerk to the judge assigned to the case. The judge has asked you to write a legal analysis of the constitutional arguments that can be made by DD in challenging SODA as well as the arguments that can be made by the federal government in defending SODA against these constitutional arguments.


Question III
(Suggested time: 45 minutes) (36 points out of 144 total exam points)

    The State of Stone believes it is facing a crisis in terms of family stability. The marriage rate for its population is falling precipitously. Single heterosexual women bear children without marrying the child’s father. Couples who live together in long term committed relationships prefer to live together without marrying. Even gay and lesbian couples, after successfully fighting to amend the Stone marriage laws so that they now have the right to marry, prefer to live together without marrying. The state legislature concluded, after looking at data that demonstrated the trend in a sharply declining marriage rate, that it needed to act.

    A study committee appointed by the state legislature looked at studies that made clear that marriage brings both economic and social stability to families, and particularly the children they raise. The committee recommended the enactment of a new Marriage Stability Law. Under the law, all couples who reside together in the State of Stone in an intimate relationship for a period of 7 years or more and who are eligible to marry under the Stone marriage laws will be deemed married. After 7 years of cohabitation, the state will register their marriage and will send them a marriage certificate to certify their new status. Once deemed married under the provisions of the Marriage Stability Law, couples will need to go through the formalities of divorce in order to terminate their marital relationship. This includes court-supervised distribution of property, child custody, and alimony determinations.

    The Stone legislature enacted the Marriage Stability Law in June, 2011 and its effective date is January 1, 2012. On that date, couples who have resided together in the State of Stone in an intimate relationship for a period of 7 years or more and who are eligible to marry under the Stone marriage laws will be deemed married. When the State identifies such a couple through information contained in various official records or if their status is reported to the State (by family members, social workers, or others), the State will send them a notice to show cause why the State should not send them a marriage certificate to certify their status as married under the provisions of the Marriage Stability Law. Couples sent such a notice will have a chance to dispute the issuance of a marriage certificate by proving they have not been living together in the State of Stone in an intimate relationship for 7 years or more.

    Fred Foster (FF) and Grace Gunther (GG) have lived together in the State of Stone in an intimate relationship for 10 years. They have two children together, but they have never married and do not desire to be married. They have filed suit challenging the constitutionality of the Marriage Stability Law arguing that it violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

    You are a law clerk to the judge assigned to the case. The judge asks you to write an analysis of FF and GG’s Due Process and Equal Protection arguments as well as an analysis of the Due Process and Equal Protection arguments that can be made by the State of Stone in defense of the Marriage Stability Law.

END OF EXAMINATION