Yet Another Exam
By Mike Dorf
Continuing my tradition of posting my exams, below is the Federal Courts exam I gave this past semester. Students had 8 hours and were permitted to use whatever materials they wished (other than the interactive contents of another mind). They were required to answer each of the four questions, which were weighted equally. I also included the following general instructions: Assume that Hughes is a State of the United States. The (fictional) Federal District Court for the State of Hughes is within the (fictional) Twelfth Circuit. In answering all questions, assume that you are a law clerk to Judge Barbara Hand, who sits on the Federal District Court for the District of Hughes.
One night in February, 2011, police responded to a 911 call notifying the dispatcher that shots had been fired on Schwab Street in Hughes City, Hughes. Upon arriving at the scene, police discovered George Trigger kneeling over the 120-pound 5-foot, 4-inch dead body of 15-year-old Victor Victim. Trigger admitted to the police that he shot Victim but maintained that he did so in self-defense. Trigger said that he was patrolling outside of his house as part of a neighborhood watch program, when he saw a “suspicious looking man loitering with no apparent purpose.” Trigger approached the man and asked what he was doing, but the man refused to respond. When Trigger told the man to move along, the man “simultaneously reached into his pocket for a gun and lunged at Trigger.” Trigger says that at that point he fired three bullets from his semi-automatic pistol at the man at close range, killing him. The “man” turned out to be Victim. The police retrieved a mobile phone from Victim’s jacket pocket but found no gun or weapon other than Trigger’s own pistol. Trigger nonetheless insisted that Victim had a gun that “must be around here somewhere.” However, a police search did not reveal any weapon.
Continuing my tradition of posting my exams, below is the Federal Courts exam I gave this past semester. Students had 8 hours and were permitted to use whatever materials they wished (other than the interactive contents of another mind). They were required to answer each of the four questions, which were weighted equally. I also included the following general instructions: Assume that Hughes is a State of the United States. The (fictional) Federal District Court for the State of Hughes is within the (fictional) Twelfth Circuit. In answering all questions, assume that you are a law clerk to Judge Barbara Hand, who sits on the Federal District Court for the District of Hughes.
Once again, I set this out as an exercise. If you find this interesting, feel free to comment, but I won't grade comments. Grading the real exams was enough of a treat!
----------------------------------------------------------------------------------
The
following facts pertain to questions I, II, and III.
In
August 2011, Congress enacted last-minute legislation raising the debt ceiling
and providing for automatic budget cuts beginning in January 2013. See
Budget Control Act of 2011, Pub. L. No. 112-25.
Those automatic cuts could have been averted if Congress approved
legislation proposed by the bipartisan “super-committee” but the
super-committee failed to agree on recommendations.
(Everything in the prior paragraph
is true. Now we come to the made-up
facts.)
Due
to unexpectedly sluggish tax revenues and a rise in interest rates, the current
debt ceiling will be reached earlier than originally expected, on November 27,
2012. Immediately after his narrow re-election
in early November, President Obama announces that he is ready to negotiate a
deal with Republicans (who retain control of the House and gain seats in the
Senate) but that if no deal is reached by November 27, 2012, the President says
that he will unilaterally authorize borrowing beyond the current limits of the
debt ceiling. President Obama states
that his issuing of “Presidential bonds” is necessary to avoid a violation of
Section 4 of the Fourteenth Amendment. [1]
Congress fails
to enact a bill raising the debt ceiling by the deadline and so beginning on
November 27, the Treasury Department issues new bonds despite the fact that
they bring the face value of outstanding debt beyond the limit set by the debt
ceiling. Because investors are uncertain
of the validity of the Presidential bonds, interest rates on them are somewhat
higher than on bonds sold the previous week.
Meanwhile, Republicans and some Democrats in Congress denounce the
Presidential bonds as violating the separation of powers because Congress, not
the President, has the power to borrow money.
Political pundits also criticize the Presidential bonds. Perhaps most ominously, a person described as
“a high-ranking Chinese government official speaking on condition of anonymity”
is quoted in the Wall Street Journal stating that “if the legality of these
bonds is not quickly resolved, we will need to adjust our portfolio.”
With the crisis
deepening, Congress and the President reach an agreement that is enacted in
legislation passed on December 4, 2012.
It is the Bond Legality Assurance Act (“BLAA”) of 2012. The BLAA raises the debt ceiling by $2
trillion and further provides in pertinent part:
Section 101. This Act is passed pursuant to Congress’s
powers to borrow money, to provide for the general welfare, to regulate
interstate commerce, to enforce Section 4 of the Fourteenth Amendment, to make
laws that are necessary and proper to carrying out its other powers, and/or any
other powers that may be pertinent.
* * *
Section 201. Notwithstanding any other provision of law,
all bonds issued by the United States government from November 27, 2012 through
the enactment of this Act are fully legal and backed by the full faith and
credit of the United States government.
Section 202. No court of the United States shall have
jurisdiction to enjoin, invalidate, or otherwise call into question the
legality of federal government bonds issued from November 27, 2012 through the
enactment of this Act.
Section 203. This Act hereby expressly abrogates the
sovereign immunity of any State that is or may be sued for its failure to treat
bonds issued by the United States government from November 27, 2012 through the
enactment of this Act as fully legal and backed by the full faith and credit of
the United States.
Hart &
Wechsler Investments is a private investment
management company, organized as a partnership under Hughes Law and
headquartered in Hughes City, Hughes. Hart &Wechsler promises its clients
“modest but secure growth.” Its standard contract provides: “At all
times, no less than fifty percent of each portfolio shall consist of U.S. government
bonds backed by the full faith and credit of the United States.” During the period from November 27 through
December 4, 2012, approximately $30,000 of U.S. bonds in the portfolio of
Ingrid Investor matured. Hart &
Wechsler invested $20,000 of that money in corporate bonds but in order to
prevent the total portfolio from falling below fifty percent in U.S. bonds,
Hart & Wechsler also purchased $10,000 worth of Presidential bonds for
Investor’s account. In addition, Hart
& Wechsler purchased approximately $100,000 worth of Presidential bonds for
other clients with portfolios in similar circumstances.
When Ingrid Investor (who resides in Hughes City, Hughes)
received her monthly Hart & Wechsler statement in mid-December, 2012, she
contacted a lawyer, and a week later she filed a lawsuit against Hart &
Wechsler, alleging breach of contract on the ground that the Presidential bonds
were not “U.S. bonds backed by the full faith and credit of the United States”
because they were issued by the President in violation of the Constitution’s
assignment to Congress of the power to borrow money.
Hart & Wechsler filed an answer that made the following
points: (1) There is no jurisdiction in light of Section 202 of the BLAA; (2)
Quite apart from BLAA, there is no jurisdiction under 28 U.S.C. § 1331; (3) If
there is jurisdiction, the case should be dismissed for failure to state a
claim because the bonds were valid under Section 201 of the BLAA; (4) Investor
suffered no damages as a result of the purchase of the Presidential bonds
because they have since been guaranteed by Section 201 of the BLAA; and (5) Hart
& Wechsler has the affirmative defense of impossibility under the contract
law of Hughes.
The case is assigned to Judge Hand. She has asked for a memorandum addressing the
following questions:
Question I: Does
Section 202 of the BLAA validly strip the district court of jurisdiction?
Question II: In
the absence of Section 202 of the BLAA, or assuming that Section 202 of the
BLAA has no legal effect because it is unconstitutional, is there jurisdiction
over Investor’s lawsuit under 28 U.S.C. § 1331?
Judge
Hand has assigned other issues (such as the question whether Investor has
standing and the question whether the state law defense of impossibility is
applicable) to her other law clerk, so please confine your answers to the
questions posed.
The
following facts pertain only to Question III.
Meanwhile, another lawsuit arising out of the Presidential
bonds has also been assigned to Judge Hand.
This second case is a suit against Hughes State Treasury Secretary Tom
Treasurer in his official capacity.
Filed by a class of Hughes civil service workers, some of whom reside
out of state, it alleges that from November 27 through December 4, the State
Employee Pension Fund refused to purchase U.S. bonds as its existing bonds came
due, instead investing $20 million in risky foreign government bonds that have
since lost half of their value. The
lawsuit raises state law claims of breach of fiduciary duty and breach of
contract, alleging that the Fund was obligated to purchase U.S. bonds, and
asserting federal court jurisdiction pursuant to 28 U.S.C. § 1332(d). It seeks an order to Treasurer to pay roughly
$10 million from the State Treasury to the Fund, to make up for the losses
incurred from the State’s refusal to purchase U.S. bonds during the contested
period.
Treasurer files a pre-answer motion to dismiss on the
ground that the lawsuit is barred by the state’s sovereign immunity or, in the
alternative, the State was not contractually obligated to purchase Presidential
bonds because they were constitutionally
invalid when they were issued.
Judge Hand asks you to address the following question in
your memorandum:
Question III: Is
the lawsuit barred by state sovereign immunity?
Assume that Hughes has not waived whatever sovereign immunity it enjoys
against the lawsuit.
The
following facts pertain only to Question IV.
One night in February, 2011, police responded to a 911 call notifying the dispatcher that shots had been fired on Schwab Street in Hughes City, Hughes. Upon arriving at the scene, police discovered George Trigger kneeling over the 120-pound 5-foot, 4-inch dead body of 15-year-old Victor Victim. Trigger admitted to the police that he shot Victim but maintained that he did so in self-defense. Trigger said that he was patrolling outside of his house as part of a neighborhood watch program, when he saw a “suspicious looking man loitering with no apparent purpose.” Trigger approached the man and asked what he was doing, but the man refused to respond. When Trigger told the man to move along, the man “simultaneously reached into his pocket for a gun and lunged at Trigger.” Trigger says that at that point he fired three bullets from his semi-automatic pistol at the man at close range, killing him. The “man” turned out to be Victim. The police retrieved a mobile phone from Victim’s jacket pocket but found no gun or weapon other than Trigger’s own pistol. Trigger nonetheless insisted that Victim had a gun that “must be around here somewhere.” However, a police search did not reveal any weapon.
Trigger voluntarily accompanied the police to the station,
where he was given his Miranda warnings and then gave a statement along
the lines described above. He was later charged with the murder of
Victim. At trial, the police introduced Trigger’s statement as well as
physical evidence. Trigger took the stand to tell his story and on
closing his attorney, Saul Goodman, argued self-defense. The jury was
instructed that in order to find Trigger guilty of first-degree murder under
Hughes law, it had to find beyond a reasonable doubt both that Trigger
intentionally or knowingly killed Victim and that Trigger did not act in
self-defense. Subject to exceptions not relevant here, Hughes law permits
the use of deadly force against another person when a person reasonably
believes that such other person is using or about to use deadly force against
him or her.
The jury convicted Trigger of first-degree murder and
following a separate sentencing phase of the trial, recommended a death
sentence based on the aggravating circumstances that Victim was “especially
vulnerable” and that the murder was racially motivated. Trigger was
sentenced to death.
Trigger filed a timely appeal to the Hughes Circuit Court,
raising the following two grounds for reversal: (1) there was not sufficient
evidence to prove absence of self-defense beyond a reasonable doubt; and (2)
there was insufficient evidence of racial bias to justify the jury’s finding of
that aggravating factor. The Hughes Circuit Court rejected both claims in
a brief opinion reviewing the evidence. Trigger did not seek
discretionary review with the Hughes Supreme Court or the U.S. Supreme Court.
Two months after the Hughes Circuit Court ruling,
Trigger--now represented by a new lawyer, Atticus Goldfinch, filed a state
habeas petition in the Hughes District Court, alleging that his trial counsel,
Saul Goodman, was constitutionally ineffective for failing to conduct or order an
independent crime scene investigation. Such an investigation, the
petition contended, would have discovered that the surveillance camera on a
neighboring apartment building recorded the entire incident, and the recording
would vindicate Trigger’s version of the events. Under Hughes law, the
first time that a defendant may raise ineffective assistance of trial counsel
is on state collateral review. The judge denied Trigger’s petition without
reaching the merits of the ineffective assistance claim, because the collateral
review petition was filed one day after the deadline and, under Hughes law, the
filing deadline is jurisdictional and so cannot be extended. (Goldfinch
apparently miscalculated the filing deadline based on the erroneous assumption
that Columbus Day was an official state holiday.) The Hughes Circuit
Court denied Trigger’s appeal in a one-sentence order stating: “The trial court
correctly determined that the petition was not timely filed.” Trigger
sought discretionary review by the Hughes Supreme Court, which was denied.
He did not seek certiorari in the U.S. Supreme Court.
Represented by a third lawyer, Sandra Hackett Stevens,
Trigger filed a timely habeas corpus petition in Federal District Court for the
District of Hughes. The petition alleges that Trigger received
ineffective assistance of counsel at trial and during his state collateral
review proceeding. It further alleges that Trigger is, in fact, “actually
innocent,” as would be shown by the video recording from the neighboring
apartment building. The case is assigned to Judge Hand. She asks
you for a memorandum addressing the following:
Question IV: To what
relief, if any, is Trigger entitled?
End of Exam
[1]
You can find a description of something resembling what is imagined here in Neil
H. Buchanan & Michael C. Dorf, How to
Choose the Least Unconstitutional Option: Lessons for the President (and
Others) from the Debt Ceiling Standoff, Colum.
L. Rev. (forthcoming 2012),
draft available at http://ssrn.com/abstract=2025178. You are strongly advised to do no more than
glance at the article during the exam time, as the article does not address
issues relevant to this exam.