Fall 2000 Constitutional Law Exam

   

YALE LAW SCHOOL

Fall Term 2000 Examination

Constitutional Law

January, 2001

(Self-Scheduled– Twenty Four Hours)

Professor Balkin

 

Instructions

1. This examination consists of two essay questions. Each has equal weight in determining your grade. Your answers to the two questions combined should total no more than 6,000 words.

2. Please read each question carefully and pay attention to what you are being asked to do.

3. If anything about a question is ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly. No reasonable resolution of an ambiguity will be penalized. If you need to assume additional facts in order to answer a question, state what those facts are and how they affect your answer.

4. You may either type your exam (which I prefer) or use blue books. If the latter, please use a separate blue book for each question. Mark the number of the question on the front of the blue book. If you need more than one blue book for a question, that is fine, but indicate on each blue book which question it answers and in what order it is to be read. Write on only one side of the page. Skip every other line. The easier your answer is to read, the more appeal it will have when it is viewed at 2:00 in the morning.

5. Think before you write. Organize your answer. You get extra points for clarity and succinctness. You get penalized for an answer which is disorganized and confusing.

6. This exam is open book.

7. Good luck.

Question One
(One Half)

In response to continuing complaints by African Americans and Latinos about the practice of “racial profiling,” Congress passed the Fairness in Law Enforcement Act of 2001.

The Act contains three parts that concern racial profiling.

Section 201(a) of the act requires state and local law enforcement officials to compile annual reports on the practices of police officers, peace officers, highway patrol officers and related law enforcement officials. Each time such an officer stops a motor vehicle the officer is required to compile the following information and submit it to the law enforcement agency that employs the officer:

(1) the age, gender, race, and ethnicity of the individual or individuals stopped;
(2) the traffic violation or violations alleged to have been committed that led to the stop;
(3) whether a search was conducted as a result of the stop;
(4) if a search was conducted, whether persons or property were searched, the duration of the search and whether the individuals involved consented to the search;
(5) whether any contraband was discovered in the course of the search and the type of any contraband discovered;
(6) whether any warning or citation was issued as a result of the stop;
(7) if a warning or citation was issued, the violation charged or warning provided;
(8) whether an arrest was made as a result of either the stop or the search;
(9) if an arrest was made, the crime charged; and
(10) the location of the stop.

Section 201(b) requires state and local law enforcement agencies to compile this data into annual reports and submit them both to the attorney general of their state and to the Justice Department. These reports must include the following information:

(1) the total number of vehicles stopped by law enforcement officials during the previous calendar year;
(2) the number and percentage of drivers of such motor vehicles listed by race and ethnicity;
(3) a comparison of the percentage of stopped motor vehicles driven by each relevant racial or ethnic group and the percentage of the state’s population that each racial or ethnic group comprises.

Section 201(c) requires law enforcement agencies at both the state and local levels to adopt policies on traffic stops with the following features:

(1) They must prohibit the practice of routinely stopping members of minority groups for violations of vehicle laws as a pretext for investigating other violations of criminal law. “Minority groups” are defined as individuals of African, Hispanic, Native American or Asian descent.
(2) They must provide for periodic reviews by the law enforcement agency in order to determine 
whether any law enforcement officials in their employ have a pattern of stopping members of minority groups for violations of vehicle laws in numbers disproportionate to the population of minority groups residing or traveling within the jurisdiction of the law enforcement agency; and, if the review reveals a pattern, they must require an investigation to determine whether any law enforcement officials routinely stop members of minority groups for violations of vehicle laws as a pretext for investigating other violations of criminal law.
(3) They must provide for appropriate counseling, discipline, and training of any such law enforcement officer found to have engaged in pretextual traffic stops.

Discuss the constitutionality of the above statute. How would your answer change if sections 201(a),(b), and (c) were mandatory only as a condition of receipt of (a) federal funds earmarked for highway maintenance and improvement? (b) federal funds that were specifically appropriated to assist the states in enforcing the Act?

Question Two
(One Half)

Please read the Supreme Court’s opinions in Bush v. Gore, 2000 U.S. LEXIS 8277 (December 9, 2000)(issuing a stay), and 2000 U.S. LEXIS 8430 (December 12, 2000)(per curiam)(halting the recount in Florida and remanding to the Florida Supreme Court).

Given your understanding of the appropriate role of the Supreme Court in the American constitutional system, how would you assess the Supreme Court’s performance in the case of Bush v. Gore compared to its performance in the following cases? (Please choose three or four examples from the following list in order to make your comparisons.)

(1) Marbury v. Madison
(2) Prigg v. Pennsylvania
(3) Dred Scott v. Sandford
(4) Plessy v. Ferguson
(5) Lochner v. New York
(6) Brown v. Board of Education
(7) Roe v. Wade
(8) Planned Parenthood of Southeastern Pennsylvania v. Casey.
(9) Bowers v. Hardwick
(10) Romer v. Evans

In answering this question you make take as a theme any of the issues we have discussed in this course, including but not limited to the purpose and nature of judicial review in the American constitutional order, the proper methods of constitutional interpretation, and the proper relationship between law and politics.

END OF EXAMINATION