Tuesday, May 18, 2010

Federal Courts Exam

By Mike Dorf

Back in January, I posted the con law exam I gave to my 1Ls in the fall (here and here).  If you enjoyed those, have I got a treat for you!  Below is the exam I gave to my upperclass students in Federal Courts last week.  I won't be posting a model answer, nor will I be grading any proposals in the comments.  So have fun with this.

Question 1 (50 percent)

            You are an aide to Senate Majority Leader Harry Reid.  He has asked you to review the following bill, which he would like to introduce in Congress.

Only Natural Persons Have A Right Of Free Speech Act (“ONPHAROFSA”)

1.         No state, federal or other court in the United States shall have jurisdiction in any case to grant relief of any sort on the ground that any provision of state or federal law infringes the freedom of speech of a corporation or of a person or entity that is funded in whole or in part by general funds of any corporate treasury.

2.         No state, federal or other court in the United States shall have jurisdiction to entertain a challenge to any portion of this Act.

3.         In the event that a court invalidates Sections 1 and 2 of this Act, the following “Fallback A” shall become operative in their place:

Fallback A, Part 1: No court of the United States shall have jurisdiction to grant relief of any sort on the ground that any provision of state or federal law infringes the freedom of speech of a corporation or an entity that is funded in whole or in part by general funds of any corporate treasury.

Fallback A, Part 2: No court of the United States shall have jurisdiction to entertain a challenge to any portion of this Act.

4.         In the event that a court invalidates Sections 1, 2 and 3 of this Act, the following “Fallback B” shall become operative:

Fallback B, Part 1: The two most recently established seats on the Supreme Court are hereby abolished.  Their current occupants remain Article III judges and are assigned to the D.C. Circuit.

Fallback B, Part 2: The case of Citizens United v. Federal Election Comm’n, 130 S. Ct. 876 (2010) is restored to the appellate docket of the Supreme Court for re-argument.

5.         In the event that a court invalidates Sections 1, 2, 3 and 4 of this Act, the following “Fallback C” shall become operative:

Fallback C: Two new seats on the Supreme Court are hereby established.

            Please note in connection with Section 4, that the most recently created seats on the Supreme Court were established in 1863 and 1869.  They are currently occupied by Justices Scalia and Thomas, respectively.    Please write a memorandum to Senator Reid identifying and discussing potential constitutional infirmities in ONPHAROFSA.

Question 2 (25 percent)

            The text of ONPHAROFSA was leaked to Sue Lowden, a possible Republican challenger for Reid’s Senate seat, who is using it to portray Senator Reid as “hostile to business and a socialist.”   In a press release, Ms. Lowden declared that “this bill is obviously unconstitutional and if Senator Reid had any guts he would agree to test its constitutionality right now, rather than sandbagging hardworking Nevadans by making us wait until it goes into effect.”  Appearing as a guest on Sarah Palin Radio, Lowden then issued the following challenge to Senator Reid: “Gambling is legal in the great State of Nevada, so I say to Harry Reid, let’s make a bet on whether ONPHAROFSA is constitutional.  If it is, I’ll pay you $100.  If not, you pay me $100.  When you pay up, I’ll donate my winnings to charity.”  In a follow-up letter, the Lowden campaign proposed that immediately following the making of the bet, Lowden would sue Reid in federal district court in Nevada for a declaratory judgment that ONPHAROFSA is unconstitutional.

            Senator Reid believes that he has no choice but to make the bet.  However, he is hopeful that such a bet would not result in an actual adjudication.  He asks you for a memorandum evaluating the constitutional, statutory, prudential, and other obstacles, if any, to a federal district judge reaching the merits.  Assume for purposes of this question that Nevada law permits gambling on legal issues.

Question 3 (25 percent)

            Senator Reid has temporarily left Washington to campaign in Nevada.  During his absence, you have been assigned to work with Vermont Senator Bernie Sanders.  Senator Sanders would like to introduce a bill in the Senate, the International Law Restoration Act (“ILRA”).  Its provisions are as follows:

1.         10 U.S.C. § 948b(e) is hereby repealed.*

2.         Notwithstanding any other provision of law, the 1949 Geneva Conventions are hereby declared and/or rendered self-executing.

3.         In interpreting the 1949 Geneva Conventions, the courts of the United States shall treat decisions by the International Court of Justice as binding precedent.

            Senator Sanders asks you to write a memo addressing any constitutional or other legal obstacles to the effectuation of ILRA, should it gain passage.


Charles Fulton said...

Not a lawyer nor a law student, but I see a loophole in Sections 4 & 5.

The plain reading of Article III ("good behavior") and legal precedent (ch. 210, 14 Stat. 209) suggest that a Supreme Court seat may be eliminated only once it becomes vacant. "Office" in this case must mean a Supreme Court seat, not a seat on any of the lesser courts which Congress may create. Section 4, Fallback B, Part 1 is unconstitutional.

The Supreme Court held in Plaut v. Spendthrift Farm, Inc. (514 U.S. 211) that Congress may not re-open judgments rendered final before the passage of the law. Whether ordering re-argument would constitute such is less clear. The 11th Circuit's denial of rehearing en banc in Schiavo v. Schiavo (see also Birch, J. concurring) suggests that it would. The Supreme Court did not elaborate on its denial of cert. As Fallback B, Part 2 does not vacate Citizens United the Supreme Court may choose to hear argument (for the laughs), and then issue a per curiam affirming the existing judgment. In this case the Supreme Court would not have struck down all of Fallback B as unconstitutional, so Fallback C would not come into play.

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