Professor Harpaz
Constitutional Law


Studying for the Constitutional Law Exam

Note: This discussion of studying for the Constitutional Law exam is intended to be read in conjunction with the discussion of the General Approach to Taking a Constitutional Law Exam

Studying for an exam in Constitutional Law is, of course, similar to studying for many other law school exams.  In general, it is necessary to make sure you know and understand the various aspects of constitutional law covered in the course.  However, learning the law in the abstract is only half the task.  You also need to learn how to apply the relevant legal standards to particular fact patterns.  

The first aspect of studying involves reviewing the material we covered throughout the course. Study aids can supplement this review, but they shouldn’t replace it. You will be tested on what you learned from the combination of assigned readings, class discussions of that material, and material posted on the course website. Some study aids may present the covered material differently and therefore steer you in the wrong direction.

For each subject tested on the exam (Commerce Power, Spending Power, State Sovereignty Limits on the Commerce Power, Preemption, dormant Commerce Clause, Privileges and Immunities Clause of Article IV, Section 2, Due Process and Equal Protection) you need to learn the various standards of review that the Supreme Court has crafted to analyze each of those varieties of constitutional challenges.  You also need to know how the Court determines which standard of review applies, if more than one might be applicable, and how it applies the relevant standard to particular facts.

For example, if an exam question presents a challenge to a state law and provides you with information about a federal law that regulates in the same area, you need to know that a preemption challenge is possible.  In making such an argument on behalf of a regulated entity that is seeking to convince a court that the state law is preempted and cannot apply to it, as a preliminary matter, you must demonstrate that the federal law is valid.  This will typically involve a brief analysis of the fact that the federal law is a proper exercise of the commerce power, but it may also be unclear that the federal law is a valid exercise of federal power.  In the latter case, a more extensive discussion of the validity of the federal law will be required.

After arguing the federal law is valid, it will then be necessary to consider the applicability of the various kinds of preemption arguments that are available.  Is there a specific clause in the federal statute that deals with the relationship between state and federal law?  If so, that clause may expressly preempt state laws in whole or in part or it may expressly allow the state to regulate in the area, to some extent.  On behalf of the regulated entity, you need to apply the language in the provision to the state law at issue to argue that it expressly prevents the state from regulating in the way it has or, at least, that it does not expressly authorize the regulation.

After considering express preemption arguments, you then need to consider the various implied preemption arguments that are available.  We studied two forms of implied preemption: conflict preemption and occupation of the field.  There are two forms of conflict preemption: (1) is it impossible to comply with the state and the federal law at the state time and (2) does the state law undermine the accomplishment of the purpose of the federal law?  If either of these is true, the state law is preempted.

Finally, you should consider field preemption: does the federal law fully occupy the field being regulated so as to leave no room for state regulations on the same subject?  If it is difficult to determine whether Congress intended to preempt the field, the Court uses several presumptions.  If the area regulated is traditionally regulated exclusively by the federal government, the Court will presume Congress intended to preempt the field unless it is clear it did not.  By contrast, if the area regulated is traditionally regulated by the states, the Court will presume Congress did not intend to preempt the field, unless it is clear it did.  One of the difficulties in applying this analysis is the need to determine what field of regulation Congress is occupying.  Sometimes, depending on how one described the field at issue, a different presumption will apply.  In addition, if the field that Congress has fully occupied is a different field than the one the state regulated, there will be no field preemption.  

Since each exam question will typically ask you to make arguments on behalf of the challenger as well as the government, after presenting the arguments on behalf of the regulated entity challenging the state law, you will then need to present the opposing arguments on behalf of the state arguing that the state law is not preempted.

A full analysis of the preemption issue will require that you know the steps in preemption analysis (starting with the validity of the federal law) and the various forms of preemption analysis (express and implied preemption with the latter including conflict and field preemption).  It also requires that you know how to apply those forms of preemption analysis to the facts of the exam question.  The majority of the points allocated on the exam are allocated for the application of the law to the facts.  If all you do is state the law abstractly and draw a conclusion without analyzing the facts to show the basis for that conclusion, you will not receive a good grade.  On the other hand, you cannot discuss the facts without first describing the relevant law because the facts detached from relevant legal principles do not assist in analyzing the legal issue.  Therefore, you need to do both.

Studying for the fact application part of the exam requires a different form of studying.  You must first focus on how the Court in the cases we read applied the facts to the law.  This gives you a general sense of the process of fact application.  For example, in applying conflict preemption analysis in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n (p. 230), the Court decided that California, in not allowing nuclear power plants to be built, was not undermining the purpose of the Atomic Energy Act because that law, while encouraging the building of such plants, did not require that such plants be built even if building them wouldn’t be economical.  In addition, in applying field preemption analysis in that case, the Court decided that Congress had fully occupied the field of the safety of nuclear power plants, but had not regulated the field of the economic viability of such plants.  

In addition to reviewing relevant cases in terms of how they apply the law to the facts, you should also study past exam questions in each area we studied.  This is a crucial part of the study process.  The course website has 8 prior exams and 8 prior exam answer sheets showing the issues and sub-issues and the points allocated to each.  There is also one model answer for the 2004 exam.  It also includes other review material such as the questions and answers included in the spring break review material.  Reviewing past questions will allow you to test your skills on an exam question, both in describing the relevant law as well as in applying the facts to the law.

In developing a study plan, I would first study the relevant principles of constitutional law. The example above gives you those principles for the issue of preemption and shows how the specific cases can be used to help you to understand how the facts apply to the law.  You should do the same thing for all the areas we studied.  Once you have some mastery of the substantive materials, I would use past exam material.  I might start by reading the 2004 exam, reading the model answer and then looking at the answer sheet to see how the parts of the exam answer relate to the point allocations on the answer sheet.  I would then identify several exam questions relevant to each area we studied.  After reading each question, I would outline my answer and then compare my outline to the answer sheet for the question.  I would first identify the issues I spotted correctly, but I would also focus on issues I should have discussed, but failed to and make sure I understand why I failed to discuss those issues.  I would also look at the point totals to get a sense of the major and minor issues on the exam and make sure I understand why some issues are awarded more points than others.

After reviewing sample questions for each question type, I would “take” an entire exam.  Some students prefer to take a sample exam by actually writing out answers to each question.  While this is a very desirable study method, not all students are willing to use this method.  An alternative would be to create a detailed outline for each question.  This technique does not, however, give you a feel for the time constraints within which you will need to take the exam so it may not be a completely realistic practice for the exam.  After taking a sample exam, I would attempt to grade the exam using the answer sheet.  While you may not be able to tell exactly how many points you should get for each issue, at least you will be able to tell how many of the issues and sub-issues you discussed.  In addition, you should be able to identify substantive mistakes you made in describing the relevant legal standards.

This sample example is a good diagnostic for you.  If you are satisfied with how you did (if the exam has a point total of 150 points, 90 points and above will probably be an “A” answer, 75 to 89 points will be in the “B” range, 55 to 74 points will likely be in the “C” range and a point total below 40 will likely be a failing exam), you need not study further.  However, if you did not do as well as you would like, you should attempt to identify areas of weakness and work on those areas.

Areas of weakness in exam performance can fall into a number of categories: inaccuracy in the description of substantive legal principles (e.g., the wrong standard of review), incompleteness in legal analysis (e.g, discussing conflict preemption, but failing to discuss field preemption), failure to spot relevant issues (e.g., seeing the existence of a preemption issue, but failing to see that the state law can also be challenged as a violation of the dormant Commerce Clause), discussing nonissues (which uses up valuable time although it does not result in point deductions), poor time allocation (e.g, spending a significant amount of time on a minor due process issue where the right involved can only be characterized as an economic right without any reasonable possibility it could be considered to be a fundamental right), failure to apply facts to law, reaching conclusions without providing an analysis to support the conclusion, and discussing facts without providing a legal framework to show the relevance of the facts.  Identifying the specific types of weakness that hurt your exam performance will allow you to concentrate on those to improve your performance.  Many weaknesses in exam performance are the same from course to course rather than changing from subject to subject.  Therefore, improving a particular weakness in the context of Constitutional Law, may well improve you performance in all your exams.

Several aspects of the Constitutional Law exam merit special discussion.  The first is that the exam is a closed book exam.  That means you must know the relevant law rather than depending on notes you bring into the exam to assist your memory.  While it is not necessary to memorize an exact version of each of the various standards of review, it is necessary to be able to write out the standards of review in a substantively accurate way on the exam.  To help in this process, some students create flash cards and others use various mnemonic devices.  For example, in due process analysis, to remember the rational basis (minimum scrutiny) test, a mnemonic device in the form of an acronym is MARRTALE (means are rationally related to a legitimate end) and under equal protection analysis, the minimum scrutiny test is CURRTALE (classification used rationally related to a legitimate end).  While I never studied by creating acronyms, I have spoken to numbers of students who use this technique and it is common in bar exam preparation.  No single method to learn the various standards of review is preferable, it depends on your learning style.

Second, Constitutional Law is a subject where the analysis utilized must proceed as a logical series of steps.  You must start by identifying the constitutional claim you are discussing.  Without identifying the claim, it is impossible to determine if your discussion is accurate or inaccurate.  You then need to identify the standard(s)s of review that apply to such claims.  If different tests are used based on an initial characterization (in due process analysis, is it a fundamental or a nonfundamental right, and in equal protection analysis, is it a suspect, a semi-suspect or nonsuspect classification), it is necessary to present arguments related to the characterization issue.  Only after the characterization issue has been resolved can the applicable standard of review be identified.  Once the standard of review is identified, the standard should be applied using the relevant facts.  Alternative arguments can proceed in a similar fashion.