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How to Write a Constitutional Law Essay: Attack Sheet and Sample Essay
Constitutional Law is one of the most interesting classes in law school. Below is an attack sheet for tackling these essay questions, as well as a sample essay.
1. Always discuss standing whether it is requested or not.
a. An individual has standing if they have suffered an injury, a connection between the injury suffered and the cause of action and treatment of the harm through the cause of action.
2. Then discuss State Action
a. State Action is required for the 14th amendment to apply only if there is an action by a state or local government, a government official, or a private individual whose conduct meets the requirements for state action. State action can be found where the person or entity performs exclusive public functions or has significant state involvement in its activities.
3. Equal Protection
a. An equal protection analysis requires a two-part test facial discrimination or facially neutral but with discriminatory intent or effect. Then you apply the level of scrutiny required.
b. In evaluating an equal protection clause violation the court will apply one of three standards in examining the government’s classification that discriminates against a certain group of people.
4. Privileges and Immunities
a. Prohibit one state from arbitrarily discriminating against citizens of another state.
5. Interstate Commerce
a. If a law burdens an IC, it is considered to be in violation of the DCC unless it is necessary to achieve an important government goal.
b. Market Participant Exemption- If the state acts as a market participant then it is exempt.
c. An inactive commercial clause that you can regulate or burden IC, as long as there is no discriminatory intent, balance, least burdensome and promotes state interest.
A party will have standing if it can show that there is in fact an injury, that the harm was caused by the party, and that a favorable ruling will bring about a settlement of issues. Here, the party bringing the cause of action is an association representing various retailers who are affected by the ordinance. In order for an ARO to bring a cause of action it will have to show that it has associational standing.
Associate standing requires a showing of (i). Members would independently have standing to sue; i (i). German to organizations purpose; and (iii). Neither claim nor help requires the participation of individuals.
Here, ARO can show that each of the individuals would have independent standing because there economic benefits were harmed as a result of the ordinance. The facts indicate that the ordinance “would cause hardship to store owners by depriving them of needed advertising revenue.” Thus, each store owner would have an independent reputation.
The purpose of the association is related to the interest of the individuals. ARO was “formed to protect the economic interest of its member retailers” and its pursuit of the unconstitutionality of the ordinance would justify a civil purpose to the protection of such interest.
Participation of Individuals
Here, the members would not be required to participate in any way to benefit from the outcome of the proceedings.
Thus, ARO could establish standing through a 3rd party or Association Standing.
In order for a cause of action to be brought against a state it will require state action. Here, since the ordinance is drafted by the state, this element will be satisfied.
Merits of 1St Amendment Claim
A prescription will be void if it is vague. Legislators consider vagueness based on a reasonable person standard, where if a reasonable person could not understand its purpose then it is unclear. Here, the ordinance specifically states that tobacco advertising will be prohibited on “billboards, store windows, any location within 1,000 feet of a school, and “any other place where minors under the age of 18 traditionally congregate.”
The state will certainly argue that this is specific enough that a reasonable person can and will understand its purpose. This argument is likely to hold and thus, an attack for inaccuracy is likely to fail.
A prescription will be void if it is too broad. Here, as said above the prescription is very broad in terms of what can and cannot be done. The order prohibits any type of advertising through almost all advertising media. Thus, it is likely that an attack because the prescription is too broad will succeed.
Content Based Regulation
Speech that imposes regulations based on content will be viewed as a violation of the 1st amendment if the speech is considered protected speech. Protected speech that is regulated based on content will require strict scrutiny analysis. Here, the regulations do not impose regulations on the content of the speech, but rather where it can be published ie limitations of time, manner and place.
Content Neutral Regulation
Speech that does not regulate the content will be subject to time-place and manner restriction analysis.
Time, Place and Manner Restriction
If an ordinance prohibits speech or regulates speech based on time, place and manner restrictions a 2-part test will be administered whereby the party seeking to enforce the ordinance will have to show i. This serves a legitimate government purpose; ii. It is narrowly tailored with other avenues of communication left open.
Lawful government purpose
Here, the state will argue that the purpose of the ordinance is to prevent children from buying or being influenced to smoke. However, although this may be of great interest, it is not sufficient as there are other methods available to prevent this. As AOR argues, “the best way to discourage youth from smoking is by directly limiting access to tobacco and not by banning all tobacco advertising.” Thus although it is a legitimate government objective there are less restrictive measures to address this initiative.
Narrowly adapted & Other ways of communication
Here, the nature and language of the ordinance is very oppressive in terms of its regulations and is not narrowly tailored. Additionally, it does not leave open any other means of communication because it essentially blocks any type of advertising.
Thus, it would fail as time, place and manner limitations.
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