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This is the first thing you should know about Con Law: It has the largest gap between teaching and testing of any subject you’ll encounter while in law school. Follow this straightforward approach to do your best at exam time: 1. Prepare to modify your IRAC approach. Just when you are beginning to get comfortable with the IRAC structure for essay exam answers, along comes the next exception to the rule! Your Constitutional Law exam will require you to use a doctrinal approach that is different from your Torts, Criminal Law or Contracts exams. You won’t abandon the IRAC organization, but you are going to have to modify it in specific ways. 2. Focus on doctrine. A Con Law answer is usually a series of short discussions of relevant constitutional doctrines. If you follow the logical progression below and resist the temptation to jump directly to the substantive questions, you will maximize your point yield on the exam. In Con Law the threshold matters (“setup” issues) are just as important as the discussion of substantive rights — you cannot skip over them. 3. Emphasize jurisdiction and authority to act. Con Law questions love to pose a conflict between the powers of the different branches of government or between federal and state powers. Do not minimize your analysis — these are important issues. 4. Include the facts. Students often become so involved in constitutional doctrine that they go back to their undergraduate exam writing skills and forget to apply the doctrine to the facts of the hypothetical. This step relies on a conventional IRAC approach. 5. Be selective. Not all the issues below apply to every Con Law question, but you should run through the template and select the relevant doctrines. Don’t discuss a doctrine if it does not apply. I. GOVERNMENT ACTION BY THE DEFENDANT First identify direct or indirect state action or involvement by the defendant. For example, students often fail to consider that government funding can create state action even if the party is a private actor. Immunities might be discussed at this point, or you can reserve them until you discuss justiciability. 1. Is the defendant the federal government? If so, does the conduct in the fact pattern involve powers reserved to the federal government? Explain! 2. Is the defendant a state government or subdivision? Certain powers are reserved to the states, most notably the authority to regulate the health, safety and welfare of its citizens under the Tenth Amendment. Describe them. 3. Is the defendant a private individual or entity? Discuss any basis for imputing state action (compliance with regulations, delegation to private party of traditional government function, federal funding, etc.). 4. Does the defendant have the authority to engage in the conduct at issue? This is heavily tested. In an Article I question (congressional powers) is the power express, implied (“necessary and proper”), inherent, and/or delegable? In an Article II question (executive powers), does the administrative regulation or decision fall within the authority of the executive branch or federal agency to regulate domestic or foreign affairs? II. JUSTICIABILITY/JUDICIAL REVIEW You will almost always be expected to discuss justiciability on a Con Law exam. Students frequently lose points by skipping this important step. Federal courts have limited jurisdiction and they must consider all possible reasons for excluding a case. This is why so many Con Law questions have interrogatories that include procedure, such as: “The U.S. district court granted the motion for dismissal. Was this proper?” Don’t panic! You haven’t wandered into the Civ Pro exam by mistake. Just work your way through the following questions. 1. Does the plaintiff have standing to sue? Consider direct injury to plaintiff or possible standing by virtue of a statute, taxpayer and citizen status, association membership, or other third-party status. 2. Is there a true case and controversy? Is the case ripe or would this amount to an advisory opinion? Is the case moot and, if so, is there a justification for an exception to the mootness doctrine? 3. Is this a federal question? Does it involve a matter governed by the U.S. Constitution? Be sure it is a doctrine you have studied! Consider also whether the fact pattern suggests a political question instead. 4. Are there grounds for abstention by the federal court? Would a decision in state court be more appropriate before proceeding in federal court? III. INTERGOVERNMENTAL CONFLICT (Usually between state power and federal power or separation of powers between the branches of federal government — Article IV, loosely.) 1. Immunity. Is there immunity for the state or federal government? 2. State authority that overlaps with federal authority. Does this issue come within the state’s authority to regulate health, safety, welfare or taxation within its jurisdiction, setting up a conflict with federal powers? Or does it fall within the powers pre-empted by the federal government? IV. SUBSTANTIVE RIGHTS. After you have exhausted the relevant threshold considerations (and not all will be relevant to every question), then you can proceed to look at the more commonly tested individual rights, particularly First Amendment, due process (5th and 14th Amendments), privacy, takings, and equal protection issues. You must always present both sides! Students get so caught up in the description of the doctrine that they forget to present arguments and counterarguments, counterinterpretations and/or defenses. Remember, abridgements of constitutional rights are permissible if there are adequate reasons to justify the interference. Such reasons can include but are not limited to: national security; health and safety; police power; time, place and manner regulation; competing constitutional rights, etc. Good luck! Lois Schwartz teaches skills courses at Lincoln Law School in San Jose, Calif., and is a full-time legal research and writing instructor at University of California Berkeley’s Boalt Hall School of Law.

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