This page will be used to post selected questions that I receive from students during the study and exam period and my answers to those questions. The questions will be posted anonymously and may be edited so that they are of general interest to the class.

I will add new questions and answers as they are submitted.

Question Number One:

I’m having a bit of difficulty deciding when to use the Pike Balancing Test vs. the Strict Test. I understand I need to use the balancing test when the law does not discriminates against interstate commerce and the strict test when it does. However, Hunt v. Washington State Apple Advertising Commission has confused me completely. The law was found to be facially neutral but discriminatory in effect and the Strict Test applied. How is this different from the Pike law, which involved advertising the state of origin on cantaloupes? Won’t the effect on interstate commerce be the same as in Hunt? How do you know which test to use when a law is discriminatory in effect?

Answer Number One:

The strict test is used if the law is discriminatory on its face or in its effect. However, the challenger must prove that the law has a discriminatory effect and that is not always easy to do. Since the challenger can't know in presenting arguments whether a law that is not discriminatory on its face will be considered discriminatory in its effect, the challenger has to argue in the alternative. First, the challenger should demonstrate that the law is discriminatory in effect and should be analyzed under the strict test (and then apply that test) and second, in the alternative, the challenger should argue that the law is unconstitutional even under the Pike balancing test. The government makes the same arguments in reverse. It argues the law is not discriminatory in effect and should be analyzed under the Pike balancing test (and then applies that test) and then argues that the law is constitutional even if the court applies the strict test. This second argument is usually not easy to make so the challenger should only spend serious time on it if the facts make such an argument plausible.

As for Pike, many academics argue that the Court should have applied the strict test on the facts of Pike rather than the balancing test. However, at the time of Pike, the idea that a law could be discriminatory in effect and thus subject to the strict test had not been established by the Court to the extent it has been today. The confusion over what test to use in Pike shows the wisdom of alternative arguments as I describe in the first paragraph. Luckily, advocates don't need to resolve this dilemma because they are permitted to argue in the alternative. It's only judges that have to decide between the two tests.

Question Number Two:

I am currently reviewing the incorporation of the Bill of Rights to the states through the 14th Amendments Due Process Clause (i.e. the Palko, Adamson and McDonald cases). Could you please explain the difference between the Selective Incorporation test and the Independent Content test? I understand Selective Incorporation to mean only incorporating those rights that are fundamental, but I am confused as to what Independent Content stands for. I have in my notes the example of the Palko case for both, but that doesn't seem to make sense.

Answer Number Two:

Selective Incorporation starts with those rights enumerated in the Bill of Rights and then, at least in the case of rights that attach to the criminal justice system, selectively incorporates only those rights that are considered to be "fundamental to the American scheme of justice" (the standard in Duncan v. Louisiana). As to other rights contained in the Bill of Rights (like the Second Amendment) a majority of the Court would use the Palko test ("very essence of a scheme of ordered liberty") to decide if the right is fundamental or not.

The Independent Content approach does not start with the Bill of Rights at all. It views the Bill of Rights as irrelevant to the inquiry into whether a right is considered to be a protected fundamental right under the Due Process Clause of the Fourteenth Amendment. Instead, to identify fundamental liberty rights under the Fourteenth Amendment, it asks whether a right is essential to fundamental fairness and does so by consulting "canons of decency and fairness which express the notions of justice of English-speaking peoples."

Both the Selective Incorporation approach and the Independent Content approach rely on Palko because both, in essence, focus on whether a right is essential to fundamental fairness. However, where they differ is the starting point for that analysis. The Selective Incorporation approach starts with the guarantees contained in the Bill of Rights to ask the Palko question. The Independent Content approach relies exclusively on the Fourteenth Amendment Due Process Clause and starts with more general notions of decency and fairness. Under the Selective Incorporation approach if a right is not contained in the Bill of Rights, the inquiry would end. Under the Independent Content approach, the fact that a right is not contained in the Bill of Rights is irrelevant. That probably explains why Justice Blackmun in his opinion in Roe v. Wade adopted the idea that fundamental rights are found directly in the Fourteenth Amendment since there is no right of privacy enumerated in the Bill of Rights.

Question Number Three:

I was under the assumption that the undue burden test only applied to abortion cases and that all other rights that the court deemed fundamental went through the strict scrutiny test. Am I wrong?

Answer Number Three:

On the issue of the undue burden test, in addition to the abortion context, the Court has used a version of this test in the context of the right to marry as well. This suggests the possibility that where rights are fundamental, but where there is a tradition of the government regulating them in minor ways, the Court might use the undue burden test as a way to treat differently two different categories of regulations: those that impose an undue burden and those that don't. In addition to the right to marry, a number of lower courts have applied the undue burden test to gun regulations, thereby treating a total ban on gun ownership as an undue burden subject to the strict scrutiny test and lesser restraints like a background check as less than an undue burden and therefore subject to a rational basis test. It is impossible to know whether the Supreme Court will adopt this approach, but the fact that some lower courts do shows that courts don't view the undue burden approach as limited to the abortion context.

I am not suggesting using this test instead of the strict scrutiny approach outside the abortion context if a right is fundamental. I would start with the strict scrutiny approach. However, in appropriate circumstances (a less than total restraint on the exercise of a right), analyzing the problem alternatively under the undue burden test would probably get you some extra points. I think you will see this in some of the exam answer sheets I have posted.

Question Number Four:

I came across a portion of my notes dedicated to early tests attempting to place judicial limitations on Congress' authority over interstate commerce (direct. v indirect effects, stream of commerce test, etc.).  Would these be worth discussing on the exam, or have they largely been replaced?

Answer Number Four:

To the extent that your notes are from the time period between 1895 and 1936, these are cases we studied as historical background for the modern commerce clause approach. The modern period begins in 1937 (The Commerce Power After the New Deal). It starts with Jones & Laughlin, Darby, and Wickard v. Filburn. However, some of the approaches in the earlier cases are not that different from some of the current approaches (e.g., the substantial economic effects test in the Shreveport Rate Case is not that different from the test in Wickard v. Filburn). Despite the overlap, you'd be better off studying the current approaches as reflected in the Course Review. So, for example, the current test used when Congress regulates local economic activities is whether Congress could have rationally concluded that the regulated activity has a substantial economic effect on interstate commerce (in the aggregate). This is similar to the Shreveport Rate Case approach, but that fact is not going to be useful on the exam. That's why I say you should just focus on the current tests and how to apply those tests. There won't be any points allocated on the exam for discussing the historical origins of the test now used. I think the answer sheets from previous exams and the model answers that I've posted are consistent with this advice.

Question Number Five:

Under the Privileges and Immunities Clause of Article IV, what is the difference between the first part of the test (does the state or locality have a substantial reason for treating nonresidents differently) and the second part (does the degree of discrimination against nonresidents bear a substantial relation to the state or local government's objective). If the state had a substantial reason for treading the nonresidents differently, wouldn't the discrimination necessarily bear a substantial relation to the state's objective? I have a hard time seeing the difference between the two steps.

Answer Number Five

The first prong of the test focuses on the ends and the second prong focuses on the suitability of the means in relation to the ends. This is the same two prongs that exist under all of the standards of review. If the state has a substantial reason for treating residents and nonresidents differently that doesn't necessarily mean that the way in which they are treated differently would be constitutional. For example, they could be treated differently by excluding nonresidents entirely as in the New Hampshire bar admission case (Piper) or treated differently by subjecting nonresidents to an additional continuing education requirement. The first method of different treatment is unconstitutional, but the second might be okay. That's why the second prong of the test focuses on the degree of discrimination. Some lesser degrees might be suitable whereas some greater degrees of discrimination might not be, as in my bar membership example.

Question Number Six

Under intermediate scrutiny as used in equal protection analysis, I understand that the availability of alternative means is relevant to the inquiry, but also that unlike strict scrutiny, it is not necessary to satisfy the test that there be no less discriminatory alternative means available. I am having trouble reconciling this. If intermediate scrutiny does not require the least discriminatory alternative, then why is it relevant that there are alternative means?

Answer Number Six

The reason alternatives matter is because the requirement that there be a substantial relationship between ends and the use of the classification or a close fit between ends and the use of the classification can be tested by looking at alternatives that employ a closer fit between ends and means. In addition, sometimes the issue of a substantial relationship is looked at in terms of whether the means are substantially broader (substantially more discriminatory) than they need to be and that too can be considered by examining alternative means to see whether they are substantially narrower than the regulation that is being challenged. Neither of these reasons for looking at alternatives requires that the government must choose the least discriminatory means available.

Question Number Seven

It was my understanding that when preemption is express, it is easy to spot, and in that case the federal regulation/law would prevail. However, I have read that in some cases even express preemption language may have more than one plausible reading. I was going through your online review and did not see this mentioned. Am I reading this incorrectly, or is it something that we should not be concerned about?

Answer Number Seven

All preemption issues are ultimately issues of statutory interpretation. Everything about a statute can be unclear. It can be unclear whether there is express preemption and particularly what the scope of the express preemption is. It can be unclear whether Congress expressly intended not to preempt and what the scope of the intended non-preemption is. If there is express language, particularly on an exam, it is usually easy to spot that there is language in the statute that permits you to make an express preemption or non-preemption argument. The harder part is figuring out what the scope of that language is in terms of what exactly is being expressly preempted. If you look at Question III of the model answer for the 2004 exam, you will see that the challenger in that case makes an express preemption argument and the government in response argues that the language of the statute does not expressly preempt the state law being challenged. This is an example of a situation where there is clearly an express preemption argument that can be made, but both sides can make an argument about the language with the challenger saying it is express preemptive language and the government saying it isn't. This would be true in the real world, but it is especially true on an exam where the goal is to craft most issues so they are arguable both ways.