Saturday, November 21, 2009

Congratulations New California Attorneys!

You've done it! Last night, you found out that your hard work paid off. For the rest of your life you will remember the moment that you found out. You will always remember the phrase, "The name above appears on the pass list for the July 2009 California Bar Examination." It is the sweetest feeling in the world. The high will take you at least as far as the swearing in ceremony, for those of you who will be participating in one of the pre-scheduled ceremonies.

For those of you that will be swearing in at Loyola Law School, Loyola will be taking care of sending the papers and payments in for your state court admissions. As for your Central District of California federal admission, although a federal judge (for us it was Judge Gary Klausner) will administer the oath, your admission will not be complete until you remit a payment (for us it was $180), either by mail, or at the Federal District Court itself.

I do ask one thing of you, when your new status has finally sunk in: there are some who did not make the list. When you find out who they are, hopefully you will also realize that their status had nothing to do with how smart they are. I know fewer people this year who didn't get the desired result, but I knew plenty from the July 2008 exam. Keep them in your thoughts, and be supportive as they work to join those of us who are now attorneys.

To those of you who did not make it, if you're still reading: you'll be fine! My advice, if you went to law school in California, is not to take the February exam. The only February 2009 test takers I know that passed were those who were taking it for the first time, or had gone to school outside California and thus just needed the first time to get a feel for California style. Remember, on the February exam, there is every possibility that, even if your raw score would have been enough to pass the July exam, it may not be enough for the February, as the State Bar hopes to balance out the (typically) high July pass rate in February. So far, all of those that had been third-time examinees this past July that I've heard from have passed.

And, if it doesn't work after the fourth time, you can always run for mayor of Los Angeles!

Once again, congratulations to the new California attorneys; we are so proud of you!

Friday, November 20, 2009

Outline: Constitutional Law I - Government - VI - Separation of Powers

Constitutional Law I - Government (Spring 2006, Burcham)


  1. Presidential Powers
    1. Executive may not assume legislative functions [Youngstown Sheet & Tube Co. v. Sawyer – Where Congress rejected proposed legislation, President may not act as if it was passed]
      1. Acting under express or implied Congressional authorization, President’s authority is at maximum, includes all independent powers, plus all that Congress may delegate.
      2. Acting in absence of Congressional denial or grant of authority, President has independent powers, but may have concurrent or uncertainly distributed authority with Congress. [Dames & Moore v. Regan]
      3. Acting at odds with expressed or implied will of Congress, President’s authority is at lowest ebb, has constitutional powers less those constitutional powers of Congress over the matter. [Youngstown Sheet & Tube Co. v. Sawyer]
    2. Failure of Congress to anticipate and legislate for every possible action does not imply disapproval. [Dames & Moore v. Regan – Executive Order releasing frozen Iranian funds in exchange for release of American hostages within President’s power]
  2. War Powers
    1. President may not declare war, but may call out militia and use military forces in case of invasion or rebellion. [The Prize Cases – President had authority to institute blockade of southern ports which neutrals were bound to respect]
    2. War Powers Act – Act which requires Congressional approval for military engagements beyond 60 days, has been deemed unconstitutional by all Presidents, and is still at issue. [Mora v. McNamara]
    3. Writ of Habeas Corpus may not be suspended by President, even in war time. [Ex parte Quirin, Hamdi v. Rumsfeld]
  3. Line Item Veto – Congress may not delegate legislative powers to Executive. [Clinton v. City of New York]
  4. Presidential Prerogatives
    1. Legislative Veto – Inclusion of one-House Congressional veto in statute delegating authority to executive and independent agencies violates Presentment Clause. [I.N.S. v. Chadha]
    2. Appointments – Statute establishing Office of Independent Counsel, by allowing Attorney General to remove Independent Counsel “for good cause”, does not completely strip Executive power, and does not violate separation of powers.
  5. Presidential Immunities
    1. Criminal proceedings – Where special prosecutor has complied with rules of criminal procedure, President may be compelled to produce subpoenaed evidence for examination in camera; there is no violation of President’s general privilege of confidentiality. [U.S. v. Nixon]
    2. Civil proceedings – Presidential immunities cover only official conduct, not personal conduct, particularly before assumption of office; civil trial may not be postponed, as President does not need to appear in person at court. [Clinton v. Jones]

Outline: Constitutional Law I - Government - IV - National Power

Constitutional Law I - Government (Spring 2006, Burcham)


  1. Analysis
    1. What is the scope of the power of the federal government to regulate the private realm?
    2. What are the limits on the powers of the states?
    3. Does the Constitution impose any special limitations?
    4. What immunities do states enjoy from lawsuits brought against them to enforce national norms?
  2. Basic National Power
    1. Necessary and Proper - “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional …” [McCulloch v. Maryland – State tax on federal bank is tax on operations of whole nation, and thus unconstitutional under Supremacy Clause.]
    2. Supremacy
      1. Constitutional - U.S. Term Limits, Inc. v. Thornton – States lack power to add to Constitutional qualifications for Congress; States may not interpose themselves between the National Government and the people.
      2. Congressional
        1. Exclusive - Gibbons v. Ogden - Where Congressional act defines authority to private vessels to navigate interstate waters, State law prohibiting federally licensed vessels from navigating state waters is repugnant to Constitution.
        2. Concurrent - Cooley v. Board of Wardens of the Port of Philadelphia – Mere grant to Congress of power to regulate commerce did not deprive states of power to regulate pilots, particularly where Congress explicitly leaves this up to States.
  3. Commerce Power
    1. Standards of Review
      1. Strict scrutiny - No deference to Congress; tends to be applied to civil rights cases
        1. compelling interest
        2. closely tailored
      2. Intermediate scrutiny - Tends to be applied to gender discrimination
        1. substantial interest
        2. actually advances purpose
      3. Rational basis - close enough for government work
        1. legitimate interest
        2. rationally related
    2. Early Era - See II.B.2.b
    3. Depression Era
      1. Necessary and Proper Clause extends power of Congress to regulate interstate commerce to intrastate activities that affect interstate commerce. [U.S. v. Darby – Congress can regulate minimum wages]
      2. Commerce Clause allows Congress to regulate local, non-commercial activity if it exerts a substantial economic effect on interstate commerce. [Wickard v. Filburn – Congress may regulate home-grown wheat]
    4. Civil Rights Era
      1. Heart of Atlanta Motel, Inc. v. U.S. – Civil Rights Act of 1964 is constitutionally valid in covering motels, because motel clients are travelers in interstate commerce.
      2. Katzenbach v. McClung – Restaurant which obtains food through interstate commerce is subject to Civil Rights Act of 1964, Title II.
    5. Modern Analysis – There are 3 broad categories of activities that Congress may regulate under its commerce power [U.S. v. Morrison – Congress may not regulate gender-related violent crimes under Commerce Clause]:
      1. Use of channels of interstate commerce
      2. Instrumentalities of interstate commerce, or persons or things in interstate commerce
      3. Activities having a substantial relation to interstate commerce [Wickard v. Filburn]
  4. Taxing Power – Just because a tax is regulatory in effect does not make it not a tax, as all taxes are regulatory in some way: As long as a tax generates some revenue, Court will not question the motive. [Sonzinsky v. U.S. – Congress may impose an annual firearms dealers tax]
  5. Spending Power [South Dakota v. Dole – Congress may withhold a portion (5%) of federal highway funds which a state is otherwise entitled to if it allows purchase or public possession of alcohol by those under 21]
    1. Pursuit of “general welfare” (Congress entitled to considerable deference – Hamiltonian view) [contra U.S. v. Butler]
    2. Conditions imposed “unambiguously
    3. Conditions related to “federal interest in particular national projects or programs”
    4. Other Constitutional provisions may bar (e.g., coercion of states through reliance on disbursements violates 10th Amendment)
  6. War and Treaty Powers
    1. War Powers
      1. War and treaty powers are inherent in sovereignty, and are not to be found in the constitution. [U.S. v. Curtiss-Wright Export Corp.]
      2. War powers do not necessarily end with cessation of hostilities. [Woods v. Cloyd W. Miller Co. – Rent control]
    2. Treaty Powers
      1. Congress may enact legislation pursuant to a non-self-executing treaty as long as it does not contravene any prohibitory words in Constitution: Matters not within commerce power can come under treaty power. [Missouri v. Holland – Migratory Birds Act]
      2. Executive agreements have same status as treaties. [U.S. v. Belmont – Pursuant to executive agreement recognizing U.S.S.R., U.S. may bring claims against American company holding deposits of Russian companies seized by Soviets]
      3. Regulations and procedures necessary to carrying out agreements with foreign nations nevertheless may not abridge rights of citizens. [Reid v. Covert – UCMJ provision to court martial military widow for murder of serviceman unconstitutional]
  7. Property Power [Kleppe v. New Mexico – “Complete power” Congress has over public lands necessarily includes power to regulate and protect wildlife living there]
  8. Regulation of Aliens – Congressional power to regulate admissions is consistent with sovereign powers. [Kleindienst v. Mandel]

Outline: Constitutional Law I - Government - V - State Power

Constitutional Law I - Government (Spring 2006, Burcham)


  1. State Immunity (Limitation on federal power over states) – Requirements to challenge federal legislation:
    1. Commandeering - Challenged statute regulates “states as states”. [New York v. U.S. – Provision forcing state to take title to and possession of low level radioactive waste if it is tardy in implementing national scheme is unconstitutional for commandeering state government; federal government may not compel States to enact or administer federal regulatory program]
    2. Regulation addresses matters of state sovereignty. [Printz v. U.S. - Brady Act violates Constitution in commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers]
    3. State compliance would directly impair states’ “traditional governmental functions”. [Garcia v. San Antonio Metropolitan Transit Authority – Minimum wage statute does not apply where railroad operator is a political subdivision of a state]
  2. Dormant Commerce Clause (Limitation on state powers)
    1. Is there a legitimate purpose?
      1. A purely economic means to a distant but legitimate purpose is economic protectionism and is per se unconstitutional. [Baldwin v. G.A.F. Seelig, Inc.]
      2. Buck v. Kuykendall – State may not require common carriers using state highways to obtain certificates based on existence of adequate facilities; contra
      3. Bradley v. Public Utilities Commission – State may deny certificate for operating on specific routes due to severe congestion causing accidents.
      4. Hannibal & St. Joseph R. Co. v. Husen – State may pass quarantine laws to protect itself, but only to the degree absolutely necessary.
      5. Hughes v. Oklahoma – Conservation is legitimate, but must not discriminate.
    2. Is there a rational relationship between legislation and purpose? [Southern Pacific Co. v. Arizona – Number of cars in trains not rationally related to safety]
    3. Balance benefits to and burdens on national, interstate commerce. Note: Non-deferential to legislature. [Southern Pacific Co. v. Arizona – Limits on numbers of cars in trains adversely affected interstate commercial demands for efficiency and economy; Bibb v. Navajo Freight Lines, Inc. – State mudguard specifications pose too much inconvenience on interstate commerce; Pike v. Bruce Church, Inc. – Court suspicious of state statutes requiring business operations to be performed in home state that could be more efficiently performed elsewhere]
      1. If purpose is safety, no balancing test unless justifications are illusory. [Kassel v. Consolidated Freightways Corporation (less deference due where local regulation bears disproportionately on out-of-state residents and businesses); contra South Carolina State Highway Department v. Barnwell Brothers (in absence of Congressional regulation of truck width and weight, judiciary will not second-guess state legislature’s numbers)]
      2. Least burdensome alternative. [Kassel v. Consolidated Freightways Corporation – Where alternatives (doubles and semis) are roughly equal in effect, choose least burdensome one]
    4. Is it the least discriminative alternative available? [Dean Milk Co. v. City of Madison, Wis. – Where reasonable, nondiscriminatory, and adequate measure exists, state may not impose discriminatory burden]
      1. West Lynn Creamery v. Healy – Non-discriminatory tax with rebates only to locals is unconstitutional.
      2. C & A Carbone v. Town of Clarkstown – Ordinance which limits waste processing to in-town operator is no less discriminatory for restricting other in-state processors as well as out-of-state processors.
      3. Philadelphia v. New Jersey – Law blocking importation of out-of-state waste in effort to saddle those outside state with entire burden of slowing flow of refuse to home state’s remaining sites is impermissible.
      4. Sporhase v. Nebraska – Prohibition of shipping water out of state without license, where goal is conservation of water, and in-state residents also burdened, is permissible.
      5. Market Participation – If state participates in market, it may discriminate as a private interest, except in civil rights areas.
        1. Reeves, Inc. v. Stake – State may restrict sales of state-owned cement plant to in-state companies.
        2. White v. Massachusetts Council of Construction Employers, Inc. – City may require general contractors to hire 50% employees and subcontractors, because “market” can be narrowly defined by expert testimony as “those who work for city”.
        3. South-Central Timber Development v. Wunnicke – State involved in timber market may not regulate timber processors, which market is not narrowly defined. Note: State may regulate timber processors if it owns processing plate.
  3. Privileges and Immunities Clause (Limitation on state powers) – Article IV § 2; individuals only; applies to municipalities [Camden – In-state residents at least have chance to repeal state laws allowing for discriminatory municipal ordinances]
    1. Fundamental Right [Corfield v. Coryell]
      1. Rights covered
        1. right “of a citizen of one State to pass through, or to reside in any other State, for the purposes of trade, agriculture, professional pursuits, or otherwise”
        2. right “to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State.”
      2. Interest is fundamental to formation of Union [Supreme Court of Virginia v. Friedman – Practice of law is fundamental to formation of Union]
    2. Substantial Reason for Discrimination – Non-resident is “peculiar source of evil”
    3. Narrowly Tailored Means
  4. Supremacy Clause – Preemption (Limitation on state powers) [Rice v. Santa Fe Elevator Corp.] Note: This is strong medicine, so there is a “presumption of non-preemption”.
    1. Express – Federal law explicitly declares preemption.
    2. Implied
      1. Field - Federal regulation so pervasive as to make reasonable inference no room left for States
      2. Conflict [Gade v. National Solid Wastes Management Association – Dual impact state regulation which frustrates full effect of federal law cannot avoid preemption just because it serves several objectives rather than one]
        1. Impossibility – Federal and state schemes yield inconsistent results
        2. Purpose - Federal and state schemes aim for same purpose

Outline: Constitutional Law I - Government - III - Justiciability

Constitutional Law I - Government (Spring 2006, Burcham)


  1. Standing (this is the most litigated element; court often invokes standing to duck controversial issues)
    1. Elements [Warth v. Seldin]
      1. Injury in fact (Article III Cases and Controversies)
        1. Does plaintiff have strong enough case? [Warth v. Seldin – Plaintiff who fits profile of those who may have been hurt by allegedly discriminatory zoning ordinances, but who has not been harmed or denied relief, cannot sue town for those ordinances]
        2. Is the claim one the court can fix?
        3. Associations (Equal Protection Clause does not apply) [Village of Arlington Heights v. Metropolitan Housing Development Corp.]:
          1. individual members would have standing
          2. relief would benefit individual members, but not necessary for individual members to be in court (e.g., anti-trust class action)
      2. Causation/redressability
        1. Causation - Is the statute or action the cause of the injury?
        2. Redressability - If the plaintiff wins, will his injuries be redressed?
      3. Asserting own rights (see Third-Party Standing for exceptions)
      4. No generalized grievances
        1. If an injury is general, legislature may be better venue
        2. Some grievances may be so general as to cease being injury in fact [Lujan v. Defenders of Wildlife]
    2. Third Party Standing [Craig v. Boren - 3.2% beer]
      1. Litigant is injured (vendor economically injured)


      2. Special relationship between litigant and third party whose rights are asserted; or
      3. Things keep mooting third party’s standing (pace of litigation always moots case because litigants turn 21)
    3. Taxpayer Standing – Standing to challenge Congressional action established only when [Flast v. Cohen]:
      1. Challenge to Congress’ spending power; and
      2. Allegation that spending violates Establishment Clause [Valley Forge]

        Establishment of these elements satisfies injury, causation, grievance requirements.

      3. Cases
        1. Lujan v. Defenders of Wildlife – Allegation that Executive fails to execute laws too generalized to be injury in fact.
        2. Raines v. Byrd – Line Item Veto does not in fact personally injure legislator that voted against it.
        3. FEC v. Akins – Informational injury to right to vote is not a generalized grievance, but injury in fact.
  2. Mootness
    1. DeFunis v. Odegaard – Plaintiff challenging law school’s admission standards who has been allowed to enroll during litigation does not have a live case, and, plaintiff being about to graduate, case is moot.
    2. Exception – Capable of Repetition Yet Evading Review
      1. Simple cases
        1. litigated issue will always be mooted by passage of time during litigation; and
        2. plaintiff subject to challenged action in future
      2. Complex cases
        1. litigated issue will always be mooted by passage of time during litigation; and
        2. plaintiff may not face action in future, but others similarly situated will (e.g., Roe v. Wade)
  3. Ripeness [City of Los Angeles v. Lyons – Prior illegal police activity does not establish real and immediate threat of same harm being repeated]
    1. Statute or state action prohibits plaintiff from engaging in Constitutionally protected activity.
    2. But for statute, plaintiff would engage in that activity.
    3. Substantial probability plaintiff will be injured by statue if he engages in the activity, so there’s a “chilling effect” on Constitutional rights.
  4. Political Question
    1. Is there a textual commitment of this issue to one of the other two branches of government?
      1. Powell v. McCormack – Where Constitution is clear about qualifications for election of Member of Congress, and activity challenged is preclusion despite qualification, Court may enjoin Congress from excluding qualified Member from taking oath.
      2. Nixon v. U.S. – Impeachment trial process not textually committed, but left to Senate, so case is nonjusticiable.
      3. Goldwater v. Carter – Constitutional silence on Presidential power to abrogate treaties means it is a political question.
    2. Is the Court competent to decide the issue?
    3. Are there prudential considerations against intervention?

Outline: Constitutional Law I - Government - II - Jurisdiction

Constitutional Law I - Government (Spring 2006, Burcham)


  1. State Court Decisions [Martin v. Hunter's Lessee - State courts may not refuse to implement Supreme Court interpretations of law of the land including treaties]
    1. 28 USC 1257 Bridge
      1. Final decision from highest court of state in which decision could be had (e.g., if state supreme court denies review of a state appellate court decision, appellate decision is final decision from the highest court that can review)
      2. Federal question [28 USC 1331]
    2. Adequate and Independent Grounds
      1. Adequate
        1. Avoid advisory opinions
          1. Murdoch v. Memphis - Supreme Court will not review state interpretations of state constitution
          2. Supreme Court will not review state decisions granting more rights than federal Constitution
        2. Procedural
          1. Does not deny due process
          2. Advances legitimate state interest
          3. Applied consistently
        3. Substantive
          1. State decision fully supports decision
          2. No interference with Constitution, federal law, or treaty
      2. Independent - State decision not based on understanding of federal law [Michigan v. Long – States should use “plain statement” of grounds for decision; where ambiguous, assume federal grounds, reviewable by Supreme Court]
  2. Federal Court Decisions
    1. Cause of Action [42 USC 1983 - Civil Rights]
      1. any person
      2. acting under color of state law
      3. and deprives one of federally guaranteed rights
      4. (federal officials are sued directly under the Constitution)
    2. Subject Matter Jurisdiction
      1. 28 USC 1331 – Federal Question
      2. 28 USC 1332 - Diversity
      3. 28 USC 1343(a)(3) – Designer statute for 1983
    3. 11th Amendment
      1. Sovereign Immunity [Hans v. Louisiana] – States may not be sued directly unless Congress abrogates immunity under 11th Amendment; complete abrogation allows suit for money damages.
        1. Abrogation
          1. unmistakably clear language
          2. must act under 14th Amendment § 5 [Seminole Tribe of Florida v. Florida – Legislation under Indian Commerce Clause does not abrogate sovereign immunity under 11th Amendment]
        2. Cities, municipalities, counties, may be sued directly
      2. Stripping Doctrine – State officials may not be sued unless they can be stripped of “state garb” [Ex parte Young]
        1. action violates federal law [Pennhurst State School & Hospital v. Halderman – 11th Amendment bars federal injunctive relief against state officials on basis of state law]; and
        2. prospective, injunctive relief only (no payment from state treasury except attorney’s fees), unless plaintiff can overcome official’s personal immunity, in which case, official is personally liable for money damages
          1. qualified good faith - state officials immune unless reasonably knew or should have known action would violate federal law
          2. absolute - court officials and legislators immune
    4. Justiciability (see next section)

Outline: Constitutional Law I - Government - I - Judicial Review

Constitutional Law I - Government (Spring 2006, Burcham)


  1. Legitimacy [Marbury v. Madison - Laid out foundations of analysis]
    1. Does the government have the power?
    2. What are the limitations on this power?
      1. Structural
      2. Textual
  2. Congressional Control
    1. Supreme Court
      1. No limits on regulating jurisdiction
      2. Congress may regulate number of justices
    2. Lower federal courts
      1. Ex parte McCardle - Congress may withdraw Supreme Court appellate jurisdiction over appeals from lower federal courts, but not ex post facto. Note: McCardle got his day in court.
      2. US v. Klein - Congress may not dictate how courts must decide facts, such as whether a recipient of a pardon has in fact given aid and comfort to the enemy. Note: Klein hadn’t gotten his day in court yet.
    3. Analysis
      1. What was the purpose in restricting jurisdiction?
      2. Structural limitations (separation of powers)
        1. Congress may not insulate all of its actions from judicial review
        2. Congress may not overturn the Court on a Constitutional matter
        3. Congress may not dictate to the Court how to decide a case
      3. Textual limitations

Outline: Constitutional Law I - Government

Constitutional Law I - Government (Spring 2006, Burcham)


Wednesday, November 18, 2009

Google Scholar

Now, anyone can search legal opinions, thanks to Google Scholar. Once you click on a case, you can even find some rudimentary "Shepardization" or "Key Cite" under the "How cited" tab. Unfortunately, it is still very basic, so there is no way to tell what kind of treatment the citing work made of it. Nevertheless, if Google can get a team of lawyers to wade through it and index treatments, it would give LexisNexis and West a real run for their money.

By the way, Google, if you're reading this, I'm available for such a project!