Yet Another Exam

By Mike Dorf

           Continuing my tradition of posting my exams, below is the Federal Courts exam I gave this past semester.  Students had 8 hours and were permitted to use whatever materials they wished (other than the interactive contents of another mind).  They were required to answer each of the four questions, which were weighted equally.  I also included the following general instructions: Assume that Hughes is a State of the United States.  The (fictional) Federal District Court for the State of Hughes is within the (fictional) Twelfth Circuit.  In answering all questions, assume that you are a law clerk to Judge Barbara Hand, who sits on the Federal District Court for the District of Hughes.

Once again, I set this out as an exercise.  If you find this interesting, feel free to comment, but I won't grade comments.  Grading the real exams was enough of a treat!

            The following facts pertain to questions I, II, and III.

            In August 2011, Congress enacted last-minute legislation raising the debt ceiling and providing for automatic budget cuts beginning in January 2013.  See Budget Control Act of 2011, Pub. L. No. 112-25.  Those automatic cuts could have been averted if Congress approved legislation proposed by the bipartisan “super-committee” but the super-committee failed to agree on recommendations.

(Everything in the prior paragraph is true.  Now we come to the made-up facts.)

            Due to unexpectedly sluggish tax revenues and a rise in interest rates, the current debt ceiling will be reached earlier than originally expected, on November 27, 2012.  Immediately after his narrow re-election in early November, President Obama announces that he is ready to negotiate a deal with Republicans (who retain control of the House and gain seats in the Senate) but that if no deal is reached by November 27, 2012, the President says that he will unilaterally authorize borrowing beyond the current limits of the debt ceiling.  President Obama states that his issuing of “Presidential bonds” is necessary to avoid a violation of Section 4 of the Fourteenth Amendment. [1]

Congress fails to enact a bill raising the debt ceiling by the deadline and so beginning on November 27, the Treasury Department issues new bonds despite the fact that they bring the face value of outstanding debt beyond the limit set by the debt ceiling.  Because investors are uncertain of the validity of the Presidential bonds, interest rates on them are somewhat higher than on bonds sold the previous week.  Meanwhile, Republicans and some Democrats in Congress denounce the Presidential bonds as violating the separation of powers because Congress, not the President, has the power to borrow money.  Political pundits also criticize the Presidential bonds.  Perhaps most ominously, a person described as “a high-ranking Chinese government official speaking on condition of anonymity” is quoted in the Wall Street Journal stating that “if the legality of these bonds is not quickly resolved, we will need to adjust our portfolio.”

With the crisis deepening, Congress and the President reach an agreement that is enacted in legislation passed on December 4, 2012.  It is the Bond Legality Assurance Act (“BLAA”) of 2012.  The BLAA raises the debt ceiling by $2 trillion and further provides in pertinent part:

Section 101.  This Act is passed pursuant to Congress’s powers to borrow money, to provide for the general welfare, to regulate interstate commerce, to enforce Section 4 of the Fourteenth Amendment, to make laws that are necessary and proper to carrying out its other powers, and/or any other powers that may be pertinent.
*  *  *

Section 201.  Notwithstanding any other provision of law, all bonds issued by the United States government from November 27, 2012 through the enactment of this Act are fully legal and backed by the full faith and credit of the United States government.

Section 202.  No court of the United States shall have jurisdiction to enjoin, invalidate, or otherwise call into question the legality of federal government bonds issued from November 27, 2012 through the enactment of this Act.

Section 203.  This Act hereby expressly abrogates the sovereign immunity of any State that is or may be sued for its failure to treat bonds issued by the United States government from November 27, 2012 through the enactment of this Act as fully legal and backed by the full faith and credit of the United States.

Hart & Wechsler Investments is a private investment management company, organized as a partnership under Hughes Law and headquartered in Hughes City, Hughes. Hart &Wechsler promises its clients “modest but secure growth.”  Its standard contract provides: “At all times, no less than fifty percent of each portfolio shall consist of U.S. government bonds backed by the full faith and credit of the United States.”  During the period from November 27 through December 4, 2012, approximately $30,000 of U.S. bonds in the portfolio of Ingrid Investor matured.  Hart & Wechsler invested $20,000 of that money in corporate bonds but in order to prevent the total portfolio from falling below fifty percent in U.S. bonds, Hart & Wechsler also purchased $10,000 worth of Presidential bonds for Investor’s account.  In addition, Hart & Wechsler purchased approximately $100,000 worth of Presidential bonds for other clients with portfolios in similar circumstances.

When Ingrid Investor (who resides in Hughes City, Hughes) received her monthly Hart & Wechsler statement in mid-December, 2012, she contacted a lawyer, and a week later she filed a lawsuit against Hart & Wechsler, alleging breach of contract on the ground that the Presidential bonds were not “U.S. bonds backed by the full faith and credit of the United States” because they were issued by the President in violation of the Constitution’s assignment to Congress of the power to borrow money.

Hart & Wechsler filed an answer that made the following points: (1) There is no jurisdiction in light of Section 202 of the BLAA; (2) Quite apart from BLAA, there is no jurisdiction under 28 U.S.C. § 1331; (3) If there is jurisdiction, the case should be dismissed for failure to state a claim because the bonds were valid under Section 201 of the BLAA; (4) Investor suffered no damages as a result of the purchase of the Presidential bonds because they have since been guaranteed by Section 201 of the BLAA; and (5) Hart & Wechsler has the affirmative defense of impossibility under the contract law of Hughes.
The case is assigned to Judge Hand.  She has asked for a memorandum addressing the following questions:

Question I: Does Section 202 of the BLAA validly strip the district court of jurisdiction?

Question II: In the absence of Section 202 of the BLAA, or assuming that Section 202 of the BLAA has no legal effect because it is unconstitutional, is there jurisdiction over Investor’s lawsuit under 28 U.S.C. § 1331?

Judge Hand has assigned other issues (such as the question whether Investor has standing and the question whether the state law defense of impossibility is applicable) to her other law clerk, so please confine your answers to the questions posed.

The following facts pertain only to Question III.

Meanwhile, another lawsuit arising out of the Presidential bonds has also been assigned to Judge Hand.  This second case is a suit against Hughes State Treasury Secretary Tom Treasurer in his official capacity.  Filed by a class of Hughes civil service workers, some of whom reside out of state, it alleges that from November 27 through December 4, the State Employee Pension Fund refused to purchase U.S. bonds as its existing bonds came due, instead investing $20 million in risky foreign government bonds that have since lost half of their value.  The lawsuit raises state law claims of breach of fiduciary duty and breach of contract, alleging that the Fund was obligated to purchase U.S. bonds, and asserting federal court jurisdiction pursuant to 28 U.S.C. § 1332(d).  It seeks an order to Treasurer to pay roughly $10 million from the State Treasury to the Fund, to make up for the losses incurred from the State’s refusal to purchase U.S. bonds during the contested period.

Treasurer files a pre-answer motion to dismiss on the ground that the lawsuit is barred by the state’s sovereign immunity or, in the alternative, the State was not contractually obligated to purchase Presidential bonds because they were constitutionally
invalid when they were issued.

Judge Hand asks you to address the following question in your memorandum:

Question III: Is the lawsuit barred by state sovereign immunity?  Assume that Hughes has not waived whatever sovereign immunity it enjoys against the lawsuit.

The following facts pertain only to Question IV.

            One night in February, 2011, police responded to a 911 call notifying the dispatcher that shots had been fired on Schwab Street in Hughes City, Hughes.  Upon arriving at the scene, police discovered George Trigger kneeling over the 120-pound 5-foot, 4-inch dead body of 15-year-old Victor Victim.  Trigger admitted to the police that he shot Victim but maintained that he did so in self-defense.  Trigger said that he was patrolling outside of his house as part of a neighborhood watch program, when he saw a “suspicious looking man loitering with no apparent purpose.”  Trigger approached the man and asked what he was doing, but the man refused to respond.  When Trigger told the man to move along, the man “simultaneously reached into his pocket for a gun and lunged at Trigger.”  Trigger says that at that point he fired three bullets from his semi-automatic pistol at the man at close range, killing him.  The “man” turned out to be Victim.  The police retrieved a mobile phone from Victim’s jacket pocket but found no gun or weapon other than Trigger’s own pistol.  Trigger nonetheless insisted that Victim had a gun that “must be around here somewhere.”  However, a police search did not reveal any weapon.

Trigger voluntarily accompanied the police to the station, where he was given his Miranda warnings and then gave a statement along the lines described above.  He was later charged with the murder of Victim.  At trial, the police introduced Trigger’s statement as well as physical evidence.  Trigger took the stand to tell his story and on closing his attorney, Saul Goodman, argued self-defense.  The jury was instructed that in order to find Trigger guilty of first-degree murder under Hughes law, it had to find beyond a reasonable doubt both that Trigger intentionally or knowingly killed Victim and that Trigger did not act in self-defense.  Subject to exceptions not relevant here, Hughes law permits the use of deadly force against another person when a person reasonably believes that such other person is using or about to use deadly force against him or her.

The jury convicted Trigger of first-degree murder and following a separate sentencing phase of the trial, recommended a death sentence based on the aggravating circumstances that Victim was “especially vulnerable” and that the murder was racially motivated.  Trigger was sentenced to death.

Trigger filed a timely appeal to the Hughes Circuit Court, raising the following two grounds for reversal: (1) there was not sufficient evidence to prove absence of self-defense beyond a reasonable doubt; and (2) there was insufficient evidence of racial bias to justify the jury’s finding of that aggravating factor.  The Hughes Circuit Court rejected both claims in a brief opinion reviewing the evidence.  Trigger did not seek discretionary review with the Hughes Supreme Court or the U.S. Supreme Court.

Two months after the Hughes Circuit Court ruling, Trigger--now represented by a new lawyer, Atticus Goldfinch, filed a state habeas petition in the Hughes District Court, alleging that his trial counsel, Saul Goodman, was constitutionally ineffective for failing to conduct or order an independent crime scene investigation.   Such an investigation, the petition contended, would have discovered that the surveillance camera on a neighboring apartment building recorded the entire incident, and the recording would vindicate Trigger’s version of the events.  Under Hughes law, the first time that a defendant may raise ineffective assistance of trial counsel is on state collateral review.  The judge denied Trigger’s petition without reaching the merits of the ineffective assistance claim, because the collateral review petition was filed one day after the deadline and, under Hughes law, the filing deadline is jurisdictional and so cannot be extended.  (Goldfinch apparently miscalculated the filing deadline based on the erroneous assumption that Columbus Day was an official state holiday.)  The Hughes Circuit Court denied Trigger’s appeal in a one-sentence order stating: “The trial court correctly determined that the petition was not timely filed.”  Trigger sought discretionary review by the Hughes Supreme Court, which was denied.  He did not seek certiorari in the U.S. Supreme Court.

Represented by a third lawyer, Sandra Hackett Stevens, Trigger filed a timely habeas corpus petition in Federal District Court for the District of Hughes.  The petition alleges that Trigger received ineffective assistance of counsel at trial and during his state collateral review proceeding.  It further alleges that Trigger is, in fact, “actually innocent,” as would be shown by the video recording from the neighboring apartment building.  The case is assigned to Judge Hand.  She asks you for a memorandum addressing the following:

Question IV:  To what relief, if any, is Trigger entitled?

End of Exam

[1] You can find a description of something resembling what is imagined here in Neil H. Buchanan & Michael C. Dorf, How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) from the Debt Ceiling Standoff, Colum. L. Rev. (forthcoming 2012), draft available at   You are strongly advised to do no more than glance at the article during the exam time, as the article does not address issues relevant to this exam.