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