Professor Harpaz
Constitutional Law

Studying for and Taking the Constitutional Law Examination

Note: This discussion contains two parts. The first is devoted to the subject of studying for the Constitutional Law exam. The second is devoted to the subject of taking the Constitutional Law Exam. The two parts overlap somewhat, but they present the material in a somewhat different way. You may want to read the material on studying for the exam followed by the material on taking the exam and then reread the first part on studying for the exam. This will give you a good idea about the relationship that exists between studying and taking the exam.

I. Studying for the 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. If you have any doubt about the correct approach, the Constitutional Law Course Review and the individual subject reviews (e.g., Commerce Clause, Preemption, Dormant Commerce Clause, Due Process) should be considered the definitive source for the exam.

For each subject tested on the exam (Commerce Power, Necessary and Proper Clause, Taxing 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 these varieties of constitutional challenge. It is very important that you learn these standards accurately and completely. If you apply the wrong standard, you will not get any points for identifying the correct legal standard and you will not get any points for applying the correct standard to the facts. If you fail to describe the standard completely (e.g., you identify one part of a two part test), you will only get partial credit for identifying the correct legal standard and partial credit for applying the correct standard to the facts. Therefore, errors in identifying the applicable law have a cascading impact on exam performance. You lose points both on identifying the correct legal standard and applying that standard. The only reliable way to accurately and completely learn all the applicable standards is by memorization. Many students prepare flash cards for this purpose.

In addition to knowing the standards, you also need to know how the Court determines which standard of review applies, if more than one might be applicable. For examples in areas of constitutional law where two or more possible standards might apply, you need to know how the Court will determine which of the available standards it will apply. This kind of choice of standards is available under the Commerce Clause (in Category 3 cases where Congress is regulating a local activity, the key question which will determine what test applies is whether the regulated activity is an economic or a noneconomic activity), the dormant Commerce Clause (under the dormant Commerce Clause, the Court has applied the stricter standard from Maine v. Taylor in cases where the law discriminates against interstate commerce on its face or in its effect and the more deferential balancing test where the law treats local commerce and interstate commerce the same way), the Due Process Clause (to determine what standard to apply the Court distinguishes between fundamental and nonfundamental rights and, in some cases, between laws that impose an undue burden on the exercise of a fundamental right and laws that don't impose such a burden on the exercise of a fundamental right) and the Equal Protection Clause (the choice of what standard of review to apply depends on the nature of the classification utilized in the regulatory scheme with classifications being defined as suspect, quasi-suspect and nonsuspect).

In addition, to knowing what standards a court could apply and how it will decide which one to apply where there is a choice, you also need to be able to apply the standard to the facts of the question. More points on an exam are awarded for applying the facts than for any other single aspect of an exam answer. It is important not to neglect this critical aspect of exam performance. However, fact application will only get you points on an exam if you are applying the facts to the correct legal standard so analyzing the facts without any legal framework or with the wrong legal framework is not enough.

Finally, litigants presenting constitutional claims before a court, must always be prepared to argue in the alternative. For example, while the challenger arguing that a law violates the Due Process Clause wants to convince the court that the right infringed upon is a fundamental right and the infringement on the right should be reviewed using the strict scrutiny test, the challenger has no way of knowing whether that argument will succeed. Therefore, the challenger must argue in the alternative that the law is unconstitutional even under the minimum scrutiny test (if such an argument is at all possible). Similarly, while the government will try to convince the court that the right interfered with is a nonfundamental right and minimum scrutiny should apply, the government has no way of knowing whether the court will accept that argument. Therefore, the government has to argue in the alternative that the law is constitutional even under the strict scrutiny test.

In summary, for each area of constitutional law tested on the exam, you need to learn the various standards of review that the Supreme Court applies to that area, how the Court determines which standard of review applies, if more than one might be applicable, and how the Court applies the relevant standards to particular facts. Information about all of these subjects is included in the Constitutional Law Course Review which provides an overview of all the issues we studied and the law that relates to those issues. It also provides some suggestions for how to address certain issues on the exam.

As an example of how to how to study to take the exam, I’m going to start with an example of what you need to know to answer an exam question since figuring out what you need to know will help you to figure out what you need to study. I’m going to use a preemption issue as an example since it is one of the more complicated issues we studied. 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 a Congressional power such as 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 may presume Congress intended to preempt the field unless it is clear it did not (as in the immigration area). By contrast, if the area regulated is traditionally regulated by the states (as is the case with state tort law), 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 is regulating, 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.

Based on this description of a model exam answer, it is clear that 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 Wyeth v. Levine, the Court decided that it was possible to comply with state and federal law at the same time (therefore rejecting Wyeth's conflict preemption impossibility argument) because federal law, even though generally requiring pre-approval of drug labels, allowed certain kinds of label changes to be made without pre-approval and the change required by state tort law fell within the category of changes that did not require federal approval. In addition, the Court rejected Wyeth's argument that state tort law suits undermined the purpose of the federal law. In rejecting this argument, the Court analyzed the history of federal drug regulation by the FDA and concluded that there was no indication that Congress intended that federal law should serve as both a floor and a ceiling for patient protection, but should only be a floor, providing a minimum level of protection. As a result, state law, which provided greater protection through allowing tort liability for inadequately labeled drugs, was not undermining federal law. Virtually every case we read in each we area studied both describes the applicable law and applies that law to the facts before the Court so they are all useful as examples of how to apply the facts to the law. 

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 13 prior exams and 13 prior exam grading sheets showing the issues and sub-issues and the points allocated to each. There are also two model answers for an exam (the 2004 exam and the 2010 exam). The course website also includes other sample questions and answers under the heading Sample Exam Review Questions and Answers. 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 addition to testing your own skills, the model answers (both to the 2004 and 2010 exams as well as to some of the exam review questions) show you how to describe the relevant legal principles and apply 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. The Constitutional Law Course Review should be useful for this purpose. Some students produce flash cards for each of the areas of law we studied that include the relevant standards of review for each area. While you don’t need to memorize each word exactly (e.g., the minimum scrutiny test used to analyze laws that arguably violate due process could be stated as (1) there must be a rational relationship between the means and a legitimate end or (2) the law must be rationally related to a legitimate objective or (3) the law must use a means that have a rational relationship to a legitimate state interest or several other similar formulations), all of these variations communicate the same standard. You have to learn enough about the standard to accurately communicate the kind of relationship that needs to exist between the means and the ends.

Once you have some mastery of the substantive materials, I would use past exam material. I might start by reading the 2004 and/or the 2010 exam, reading the model answer and then looking at the grading sheet to see how the parts of the exam answer relate to the point allocations on the grading 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 grading 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 grading 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:

(1) inaccuracy in the description of substantive legal principles (e.g., the wrong standard of review);
(2) incompleteness in legal analysis (e.g, discussing conflict preemption, but failing to discuss field preemption);
(3) failure to apply facts to law;
(4) reaching conclusions without providing an analysis to support the conclusion;
(5) discussing facts without providing a legal framework to show the relevance of the facts;
(6) failure to identify what constitutional issue you are discussing so that it is impossible to tell if your analysis is correct or incorrect since it could be correct as a discussion of one constitutional issue, but incorrect as a discussion of another;
(7) 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);
(8) not understanding the relationship among different aspects of the law in a particular area so that your discussion does not proceed in a logical order (e.g., in analyzing a due process issue, discussing the standard of review before discussing whether the right is fundamental or nonfundamental);
(9) discussing nonissues (which uses up valuable time although it does not result in point deductions); and
(10) 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).

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. This means completely closed book. You cannot bring any material with you, not even a pocket version of the U.S. Constitution. 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 quasi-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. Some students design flow charts to list the steps in the analysis for each constitutional issue and study from those charts. As with the standards of review, no single method to learn the steps in the analysis of a particular constitutional issue is preferable, it depends on your learning style. For example, some students design a flow chart to summarize the order in which various issues should be discussed.


II. Taking the Constitutional Law Examination

After reading an exam question, the first important distinction one should make in analyzing an exam question is whether the law being challenged is a federal law or a state law. If the law at issue is a federal statute then it may be possible to argue that Congress has exceeded its regulatory power under the Commerce Clause, but this same argument could not be made if the law at issue is a state statute (or local law).  By contrast, if a state statute (or local law) is being challenged, it might violate the dormant Commerce Clause by interfering with interstate commerce, but this same argument would not be available if the law at issue is a federal law because federal laws cannot violate the dormant aspect of the Commerce Clause. Similarly, only state laws (or local laws) can be challenged under the Privileges and Immunities Clause of Article IV, Section 2 and only state laws can be preempted by federal action. By contrast, only federal laws can violate the principle of state autonomy embodied in the Tenth Amendment.  Moreover, due process and equal protection challenges to federal laws arise under the Fifth Amendment and due process and equal protection challenges to state laws arise under the Fourteenth Amendment.  Therefore, by focusing on what kind of law is being challenged, you can immediately limit the number of constitutional challenges that are available.

The next issue to confront is exactly what constitutional objections can be made to the law at issue. In some questions, you will be told the issues to discuss. If so, only analyze those issues because you will only be awarded points for discussing the issues you are told to discuss even if there are other potential issues that can be raised.

If you are not told the issues and the law at issue is a federal law, consider what source of power Congress appears to be utilizing to enact the law and whether it could be argued that the law exceeds the scope of Congress’s regulatory authority due to limits on the commerce, spending, and taxing powers or restrictions rooted in state sovereignty. Next consider whether the law exceeds one of the affirmative limits on federal power designed to protect individual rights. The only individual rights limits on federal power we studied were Fifth Amendment Due Process and Equal Protection limits on the power of Congress so these are the only limits you need to consider if a federal law is being challenged.

If a state or local law is being challenged, first consider whether you are told of the existence of a related federal law. If you are, this is a clear signal that the question involves an issue of preemption. If there is a preemption issue and the regulation at issue impacts economic interests, you should look to see whether there might also be a dormant Commerce Clause or Privileges and Immunities Clause of Article IV, Section 2 argument available. Finally, you should consider whether any due process or equal protection issues can be raised. It is unlikely that all 5 of these issues will be raised in a single question, but 3 or 4 of them may be. If there is no preemption issue involved, the combination of Privileges and Immunities and dormant Commerce Clause issues can also arise in the absence of a preemption issue. If you spot a due process issue, you should also consider whether the question may involve an equal protection issue as well and visa versa since many laws can be challenged on both grounds. Moreover, every law that arguably violates equal protection can also be challenged as a violation of due process (although the reverse is not true).

After identifying the various constitutional issues that are involved, you must start by identifying the standard of review a court would use to analyze each constitutional issue. Sometimes this will be apparent once you identify the issue since a single standard is always used for some types of constitutional challenges. For example, all challenges arising under the Privileges and Immunities Clause of Article IV, Section 2 utilize the same test: (1) Does the state have a substantial reason for treating nonresidents differently; and (2)  Does the degree of discrimination against nonresidents bear a substantial relation to the state's objective?  This test is always applied after considering three preliminary hurdles: (1) does the state law discriminate against nonresidents of the state; (2) is the law being challenged by a flesh and blood nonresident; and (3) does the discrimination affect the exercise of a right essential to interstate harmony? 

By contrast, in other areas of constitutional law, several different tests could apply depending on how one characterizes the law being challenged. A state law challenged under the dormant Commerce Clause that discriminates against interstate commerce is not analyzed using the same test that applies to a nondiscriminatory state law that burdens interstate commerce. Similarly, there are several due process standards and which one applies depends on whether the right at issue is fundamental or nonfundamental. These characterization issues are critical to the remainder of the analysis because the standard applied is often outcome determinative. Each side will, of course, try and characterize the law at issue differently. The government will always want to characterize the law in such a way as to apply the most deferential standard of review available (such as minimum scrutiny in due process and equal protection cases) and the party challenging the constitutionality of the law will always want to characterize the law in such a way as to apply the most rigorous, least deferential standard of review available (such as strict scrutiny in due process and equal protection cases). Both sides must also be prepared to argue in the alternative, in case the court rejects the characterization they suggest.

When identifying a relevant standard, describe that standard in its entirety rather than only using a shorthand description. For example, don't just refer to minimum scrutiny or rational basis. Explain the specific elements of that test: there must be a rational relationship between the means and a legitimate state interest. By describing the test completely, you will get the points available for identifying and describing a relevent standard of review. In addition, the standard will help you to efficiently and completely apply the facts to the standard since the standard itself serves as an outline of how to apply the facts. With minimum scrutiny, for example, the standard tells you should make arguments about whether the end is legitimate as well as arguments about the relationship between the means and the ends.

Once an applicable standard of review has been identified, it is necessary to apply the facts of the question to the standard. This often, but not always, involves an evaluation of both the legislative means as well as the legislative ends and the extent of the relationship between the two. In writing an exam answer, try and avoid reaching conclusions without providing a supporting rationale for your conclusions. This is particularly true when you apply the facts to a standard of review. For example, in applying the strict scrutiny test don’t just say that the means employed are narrowly tailored, but explain, using the facts provided, why the means are narrowly tailored and why there are no less restrictive alternative means available that would be equally effective in achieving the government’s objective.

Questions on the exam will ask you to analyze the arguments available to each of the parties so you have to first be an advocate for one side and then an advocate for the other side. You will not be asked how a judge would decide the case so you do not need to consider how the case will ultimately be resolved. In organizing your answer to an exam question, you can choose to describe a single issue and then provide both the challenger’s argument on that issue and the government’s responsive argument on that issue before going on to the next issue or you can describe all of the arguments available to the challenger before going on to describe all of the arguments available to the government. The choice between these two organizational techniques is a matter of personal preference. However, I usually argue each side’s argument on a single issue before moving on the next issue as you can see in all of my model answers. I do this for two reasons. First, when I make the challenger’s argument I have in my mind the law that is relevant to that issue and the same legal framework will also be relevant to the government’s argument. It is more efficient, therefore, to make both sides arguments while you are thinking about the relevant law. Second, it is easier to keep track of whether you presented each side’s arguments on a particular issue if you write those arguments one after the other. If you first complete all of the challenger’s arguments before describing any of the governments arguments, there is more of a chance that you will forget one or more of the government’s arguments than if you write the arguments in an immediately responsive format. 

The exam will be graded based on a grading sheet like those posted on the course webpage. The maximum point allocations are based on the amount that one could reasonably say about a particular issue. The more points, the more there is to say. The amount there is to say depends on how many standards might apply and how many arguments there are about which standard to apply, how complex the standard of review that applies is, and how many facts you are given that can be applied to that issue. The more applicable law and facts there are, the higher the point total, the less applicable law and facts, the lower the point total. Therefore, it is a good strategy to start with an issue that has a fairly complex array of applicable law and facts rather than one that is relatively simple. This is because there is a tendency to write more about the first one or two issues you address and less about later ones as the time pressure to finish an answer in the allotted time increases. Given this tendency, it makes sense for the first issue or two you address to be ones where a significant number of points are available. Obviously, if you can’t tell which issues are minor and which are major, begin your answer with an issue you are comfortable with.

The exam will provide detailed information about how much time you should spend on each question and how many maximum points are available for that question. The two will be exactly proportionate to each other. For example, if there are three 60 minute questions on the exam, they may each be worth a maximum of 50 points. If one question is a 60 minute question, one is a 45 minute question and one is a 75 minute question, the point totals might be 40, 30 and 50 respectively. Try and stick to the time limits provided for each question since the last question is worth just as much as the first question in terms of the relationship between the point total and the time allocated. In addition, it is generally true that students get more points earlier in an answer than later on in the answer (assuming you begin with an analysis of an issue and not a summary of the facts provided in the question - see the next paragraph for a discussion of this issue). Therefore, taking time away from question three to more thoroughly answer question two is probably not a smart time allocation decision because you are likely to be trading off getting a few more points on question two at the cost of missing a significant number of points on question three.

In trying to stick to the time limits, one thing to avoid is starting your answer by summarizing the facts in the question. This is a waste of time since recitations of the facts in the abstract will not be awarded points. Instead, start your answer by identifying one of the constitutional arguments that can be made and only discuss the facts when you are making arguments about what standard applies or applying an applicable standard of review to the specific facts given in an exam question. Another way to work efficiently is to briefly outline your answer before you write and check off items on your outline as you finish writing about them. This way you will be able to keep track of what you’ve said and what you haven’t said and avoid duplication.  

If you realize you will run out of time before you complete your answer to the last question on the exam, try and outline the rest of your answer. You may be able to obtain several extra points by doing so even though your answer is not complete.