Professor Harpaz
May 12, 2010
Constitutional Law - Section 1
Final Examination

Question I
(Suggested time: 70 minutes) (56 out of 144 total exam points)

   The City of Springdale is a small city located in the Commonwealth of Massachusetts near the border between Connecticut and Massachusetts. There are three bridges in the city, but the only one to span a substantial body of water is the Channing River Bridge which spans the Channing River. The bridge, located ten miles from the Connecticut border, is operated by the City of Springdale Bridge Authority, a municipal body that is responsible for all three bridges.

   While the Bridge Authority receives an annual appropriation from the city as part of the city transportation budget, the money only pays for ½ of the costs of repairing, maintaining, and operating the three bridges that are its responsibility. To pay some of the costs of maintaining the Channing River Bridge, the Authority charges a toll to travel over the bridge. The amount of the toll in each direction is $1 for city residents and $3 for nonresidents. The resident discount is available to drivers who have a Channing River Bridge Discount Pass. The Discount Pass can be obtained at the Springdale Registry of Motor Vehicles when registering a motor vehicle or from the Springdale Bridge Authority by providing proof of city residency and vehicle ownership. The two other bridges in the city which span shorter lengths can be crossed without paying a toll.

   The Authority estimates that 85 percent of city residents who own a vehicle have obtained a Discount Pass. The Authority also estimates that approximately 50 percent of traffic over the bridge involves vehicles driven by city residents, 30 percent involves nonresidents who reside elsewhere in Massachusetts, and the remaining 20 percent involves residents of other states, particularly Connecticut. The Authority justifies the resident discount based on the fact that residents of Springdale bear the burdens of the presence of the bridge in their community, generally use the bridge more frequently, and pay for a significant part of the cost of operating the bridge through the payment of taxes that fund the city’s budget. The Authority admits that when it adopted the discount policy it heard arguments from local businesses that the bridge toll imposed too great a burden on the cost of doing business within the city, but the Authority asserts that those arguments were not the main reason for its decision to create the resident discount.

   A constitutional challenge to the resident discount has recently been filed by Michael Murphy (MM) who resides in Connecticut and who owns and operates the Murphy Moving Co., a small moving company located in Connecticut that specializes in short-haul moving within Connecticut and Massachusetts. MM frequently must drive across the Channing River Bridge in connection with moving jobs in the Springdale area, including both visiting potential customers to make cost estimates and the actual moves themselves. He estimates that he pays a toll for driving over the bridge in connection with his business at least ten times a week and that on an annual basis he pays approximately $1000 more than a Springdale resident would pay for bridge tolls. He also points out that a very large number of other nonresidents who cross the bridge frequently for business reasons or to commute to their jobs suffer financial burdens that in many cases exceed the burden he experiences.

   After MM’s lawsuit was filed, the federal government was permitted to intervene in the case to argue that the Bridge Authority’s resident discount policy violated the provisions of a federal statute, the Bridges and Roads Access to Travel Act (BRATA). BRATA prohibits state and local governments from “discriminating against nonresidents in granting access to roads and bridges” that either (1) directly connect one state to another (interstate roads and bridges), or (2) are located within 25 miles of an interstate road or bridge. The federal government asserts that BRATA prevents a state or locality from adopting a resident discount policy for the use of roads and bridges because such a toll structure “discriminat[es] against nonresidents in granting access to roads and bridges.” BRATA contains no language which defines the statutory term “access” or relates to the specific issue of fees or tolls charged for the use of a bridge or road that do not prohibit use entirely. The federal government argues that BRATA preempts the City of Springdale Bridge Authority’s resident discount policy.

   BRATA was enacted in 1889 in response to Jim Crow laws passed in southern states that sought to prevent African-Americans from traveling outside of their state of residence. While written in general language that does not single out racial discrimination, the legislative history of BRATA indicates that the purpose of BRATA was to make sure that African-Americans were not prevented from engaging in interstate travel by state and local laws that excluded nonresident African-Americans from using roads and bridges that facilitated interstate transportation.

   You are a law clerk for the judge assigned to MM’s lawsuit. The judge asks you to write an analysis of the constitutional arguments that MM can make in challenging the resident bridge discount policy as well as the constitutional arguments that can be made by the Bridge Authority in defense of its policy. In addition, the judge asks you to write an analysis of the arguments that can be made by the federal government that BRATA preempts the discount policy as well as the arguments that can be made by the Bridge Authority that its discount policy is not preempted.

Question II
(Suggested time: 70 minutes) (56 points out of 144 total exam points)

   Sexual devices, or sex toys as they are often called, are devices that are primarily used to facilitate human sexual pleasure. The sex device industry is a $150 billion industry world wide and 70 percent of all sex toys are made in China. It is estimated that $1.5 billion dollars of sexual devices are sold in the United States each year and that number has been growing steadily. Sexual devices such as vibrators, penile toys, and penetrative devices are sold in specialty stores, general merchandise stores, online, and at in-home parties. It is estimated that Amazon lists more than 20,000 sexual devices under the “Health and Personal Care” section of its website. Recently Congress held hearings to investigate the growing market for sexual devices. At the conclusion of the hearings, Congress enacted the Federal Ban on Sexual Devices (FBSD).

   The testimony at the Congressional hearings included witnesses who testified in support of and against the proposed ban. Supporters included health experts who testified that the sharing of sexual devices is a significant source of the spread of sexually transmitted infections when the devices are not adequately cleaned before use. In addition, health experts testified that many sexual devices are made of plastic containing phthalates, substances added to plastic to increase its flexibility and durability. Health concerns over exposure to phthalates have caused some countries to ban its use in all plastic products and the U.S. is considering a similar ban. Economists from a conservative think tank testified that the adverse health effects from using sexual devices have added to the rising costs of health care. Family values proponents testified in support of the ban that “these devices should be outlawed because they promote loose morals.” Opponents of the ban testified that the devices are “used in private, can enhance sexual intimacy without harming anyone, and are only objected to based on puritanical fears of sexuality.” Some opponents told Congress that the opposition to sexual devices was similar to the opposition to contraceptive use that produced bans on birth control devices because they were immoral in the 1870s. In enacting the FBSD, Congress stated that the law’s purpose was “to prevent interstate commerce from being used to endanger the physical and moral health of the public.”

   Under the terms of the FBSD, it is a federal crime to “sell, distribute, or possess a sexual device affecting interstate commerce except if the device is primarily designed for purposes of birth control or prescribed by a physician for bona fide medical purposes.” The federal law defines a sexual device as a device “designed as useful primarily for the stimulation of human sexual pleasure.” Violation of the law is punishable by a fine of up to $5000 or a prison term of up to six months. The federal statute defines “affecting commerce” so that the statute only applies to the sale, distribution, and possession of sexual devices in the following situations: (1) the device has traveled in interstate commerce prior to the defendant’s sale, distribution or possession of the device; (2) any of the materials used to manufacture the device have traveled in interstate commerce prior to the manufacture of the device; or (3) the device has traveled in interstate commerce subsequent to the defendant’s sale, distribution or possession of the device.

   A challenge to the FBSD has been brought by Debbie Drake (DD), a seller of sexual devices, and Evelyn Earle (EE), one of DD’s customers. Both DD and EE reside in Texas. DD purchases her inventory of sexual devices by ordering them online from a company located in Nebraska and the devices are shipped to her in Texas. She sells them at house parties in the Dallas/Fort Worth area of Texas. EE has purchased a number of sexual devices from DD at these house parties. EE travels across state lines with one or more sexual devices in her luggage several times a year. DD and EE are challenging the FBSD on the grounds that it violates both the Commerce Clause and the Due Process Clause of the Fifth Amendment.

   You are a law clerk to the judge assigned to the case. The judge asks you to write an analysis of the Commerce Clause and Due Process Clause arguments that DD and EE can make in challenging the constitutionality of the FBSD as well as the arguments that the federal government can make in defending the FBSD against those challenges.

Question III
(Suggested time: 40 minutes) (32 out of 144 total exam points)

   Parkdale Prison, a large maximum security state prison in the State of Stone, houses male prisoners who have been convicted of serious felonies. Security is a major issue at the prison and the prison particularly struggles to prevent prisoner on prisoner violence. In recent years, a significant amount of violence has been directed at prisoners who are openly homosexual or are perceived to be homosexual by other inmates. In the macho environment of the prison culture, one way for prisoners to prove their manhood is to refuse to associate with homosexual prisoners, and even to harass and physically attack such prisoners. Parkdale Prison has made a substantial effort to curb such violence through the use of security cameras and additional prison guards, but significant problems still exist, particularly in the Induction Center (IC), the area where inmates who are new to the prison are housed for their first 6 weeks. Due to overcrowding, most prisoners in the IC are double-celled with a cellmate.

   Prison statistics indicate that the problem of violence directed at homosexual prisoners or prisoners who are perceived to be homosexual is more serious in the IC than elsewhere in the prison. After a number of incidents of violence directed at homosexual prisoners, the prison decided to alter its cell assignment policy to try and reduce the number of violent incidents. This change in policy also followed a lawsuit filed by a homosexual prisoner who claimed that Parkdale Prison violated his civil rights by not adequately protecting him from violence by other prisoners. Even though the lawsuit was eventually dismissed, prison authorities worried that a similar suit might succeed in the future if they failed to take action.

   Under the new policy, a prisoner in the Induction Center who is openly homosexual is housed in a cell with another homosexual prisoner whether or not the prisoner requests such a cell assignment. In addition, if a prisoner in the IC complains that he is being targeted by other prisoners because the prisoner is perceived as being homosexual, prison authorities change the prisoner’s cell assignment at the prisoner’s request and either house the prisoner in a single cell or house the prisoner with a homosexual cellmate. Prison officials acknowledge that they do not automatically separate prisoners in IC cell assignments based on other traits such as race or ethnicity. Moreover, the prison does not separate homosexual prisoners in other ways in the IC or once they enter the general prison population including in the cafeterias, the yards, or in work assignments. While prison officials acknowledge that segregation of homosexuals in IC cell assignments is far from ideal, they argue that no other solution they previously tried, including adding security cameras and guards and “tolerance” training as part of the prison’s orientation program, was as successful as the prison’s new cell assignment policy has been in reducing violence directed at prisoners who are openly homosexual as well as prisoners who are perceived as being homosexual. Since the new policy went into effect, the incidents of violence directed at homosexual prisoners in the Induction Center have declined by 40 percent.

   When prisoners are transferred from the Induction Center at the end of 6 weeks, they are entitled to request a cellmate, which most prisoners do. The vast majority of such requests are honored unless there are security reasons for denying them. For the small minority of prisoners who do not request a specific cellmate, prison officials ask openly homosexual prisoners as well as prisoners who have previously identified themselves as being perceived as homosexual if they would like to continue to be assigned to share a cell with a homosexual prisoner or a prisoner who is perceived as being homosexual and 95 percent of prisoners request such an assignment when it is offered to them. This policy has reduced violence against this group of prisoners after they move from the IC to the general prison population by 30 percent.

   Larry Lincoln (LL) was recently incarcerated at Parkdale Prison. He is openly homosexual and he has filed suit challenging the constitutionality of the prison’s cell assignment policy that requires that he be housed with another homosexual prisoner at the Induction Center and thereafter encourages and permits segregation of homosexual prisoners in cell assignments when they are moved into the general prison population. His lawsuit argues that the policy violates the Equal Protection Clause of the Fourteenth Amendment.

   You are a law clerk to the judge assigned to the case. The judge asks you to analyze the arguments that LL can make in arguing that the cell assignment policy violates the Equal Protection Clause as well as the arguments that the State of Stone can make in arguing that the cell assignment policy at Parkdale Prison does not violate the Equal Protection Clause. The judge is uncertain what standard to apply to review the constitutionality of the cell assignment policy. Make sure your analysis includes arguments for each side that address this issue.

END OF EXAMINATION