What Do I Need To Know To Get To The Other Side of the Bar - Constitutional Law.

Signs and signals that the question is one that involves constitutional law.

a statute; the mention of a statute; a rule of a government organization; the policy of a government organization; a rule from a teacher or a coach of a school, even if the coach does not teach a class in the public school (it must be a public school); the rule a teacher or a coach announces in class or in practice in a classroom or on the field (even if the sporting event is away from the school or attached to the school); circumstances where a private organization uses a government entity to hold an event, whether one night, one month or one year school.

Essays:

1. Standing: that is the initial question to ask before answering a constitutional law question. Does the plaintiff have standing? Does he have a palpable injury; one that she herself can feel, personally. Standing includes mootness and ripeness, too. Is the claim that you want to bring moot because something that was a fact is no longer relevant to the claim or cause of action. Ripe means that something has not occurred yet to allow the person to file the case in court. It is not ripe because an injury has not occurred. Remember that a person can "stand-in" for another person, too, if the person is underage & it should be the parent, but it does not have to be.

2. Void for Vagueness: is the statute so vague that you cannot determine to whom it applies. You cannot put your fingers on what behavior the legislature seeks to prohibit and how it plans to do so, under the statute(eg., the persons regulated, the conduct prohibited, or the punishment imposed). Strike it as unconstitutional.

3. Overbreadth Doctrine: the statute is so broad it conflicts with another statute that allows the prohibited conduct (usually First Amendment language). Look for words like "all, any, or every" listed throughout the statute). If you cannot determine who is doing what to whom, or why or when, and for what purpose, then the legislature has passed legislation that is so broad that it cannot applied against anyone, especially if the language allows one thing, but also prohibits that action, as well. Note: of course, you will not necessarily see the allowing/prohibiting language in the same sentence or directly next to one another.

4. First Amendment: (a) Establishment Clause; (b) Freedom of Speech (public and commercial); (c) Freedom of Religion; (d) Freedom of Association.

Establishment Clause: look for government involvement in some religious undertaking, whether it is a non-profit church, synagogue, center (combined with an application to the government for funding where the religious organization seeks to place some kind of sign or symbol on the building to indicate the religious nature of the organization - - mixed with the non-profit status of the building). Can the government provide funding for the non-profit organization with the religious symbols? It depends on where the symbols are located and whether it looks like the government’s funding looks like an endorsement of religion.

Speech is a fundamental right and is subject to levels of scrutiny, but you will have to determine whether or not the speech is content neutral and also the time, place and manner restrictions on the speech. Don’t forget that a form of speech must convey a message, so it could actually include any manner of movement. Not to worry because if there is a question about speech, it will be easy to spot. It will be a statement, a slogan, flag burning, tee-shirt wearing, sign-holding form. It won’t be something like, “a protestor sneezed into her hand,” and by-the-way, that will be considered speech. You will be able to make a decision that it is speech without wincing and wonder if the conduct is speech.

Religion is a fundamental right, but it is also a suspect class. It too is subject to strict scrutiny. Remember that it is the government’s burden to prove that it had a compelling interest (reason) to stop the person exercising his or her right to do X under their religion and there was nothing else (no other avenue) that the government could have done short of restricting the religious practice, other than to create a law/rule/policy, etc., preventing the exercise of a religious practice. If you can find one reason (only one is necessary) to show that the government could have done “one” some thing different than to stop the religious practice, then the law/regulation/rule/policy is unconstitutional. All you need is one. Examples of a certain religious group who want to smoke a mind altering, illegal substance; persons of a religious group that work at company X, but will not work weekends on a job that requires weekend work because of a requirement of his or her religion that prohibits weekend work.

Freedom of Association (Freedom of Assembly) does not seem to appear on the exam (I have not seen it). But I imagine it comes up every now and again. Even if it doesn’t, you should know that it should be treated carefully. Apply a strict scrutiny because it is a fundamental right that you have the right to associate with other people. Look for “other people” doing things that would trigger a right to associate with other people. If the people have to breakup what they are doing, treat as a fundamental right, just like speech.

5. The Fourth Amendment: mostly a criminal law, related amendment that concerns privacy, and where Terry Stop and Arrest go hand-in-hand. Generally, the Fourth Amendment prevents unreasonable searches and seizures on a person’s, “person and effects” and in a person’s home (and a few other places). There is a reasonable expectation of privacy in these areas, and you had better give/convey that on an exam before you take that privacy away. Often, the situation that comes up is the police officer who seeks to search a person and seizes (finds or locates) some item on that person’s body. Warrantless searches are illegal, unless there is some other reason (an exception) that will allow the government to search you (PACE VII) - - Plain View, Automobile Search, Consent, Exigent Circumstances, Vehicular Search, Incident to Arrest, Inventory Search. © Copyright of Barbara V. Smith, Esq. & The American Bar Assn’s Council on Legal Education Opportunity. July 2010. Make 100% certain that you know the entire test for the each exception to the search warrant requirement. If you only know a portion of any one of the tests, the answer will be wrong and you will provide only a partial answer. You don’t want that because you could, at that time, only give a partial answer.

6. The Fifth Amendment: includes the Takings Clause, the privilege against self-incrimination, and also the due process clause (the government cannot take a person’s life, liberty or property without providing the person with due process of law). There is no Fifth Amendment adverse position question on the bar exam because adverse possession has nothing to do with the Fifth Amendment.

Takings Clause: if the government takes your property for its (the government’s) own use, then the government must pay you a price for property (it’s private property, and not public). If it is a deminimus (sic) taking the government will have to pay a deminimus (sic), which is spelled out in the United States constitution as, “just compensation.”

Self Incrimination: You are not required to take the stand and tell on yourself (or tell the court that you) did something wrong.

Due Process: government can not take your life, liberty or property without due process of law. The sentence explains it – the government must give you the process that is due to you before confining you, and preventing your movement from one place to another, or taking your property (property also includes any money).

7. The Sixth Amendment contains the confrontation clause (a defendant has the right to confront witnesses that will bear testimony against him or her). There is also a second Right to Counsel (person has a right to counsel after arrest and he or she is in a position to be interrogated by the police). The right to a speedy trial judged by your peers. Return to your commercial bar outline and make certain that you have a one or two word phrase that describes the rights under the Sixth Amendment. Many rights come up on law school exams, but could be duplicated on a bar exam. I cannot say unequivocally which jurisdictions test on which rights under the various amendments, but know the phrases and what kind of facts that could lead to a question.