Standard Exam Instructions and
Student Conduct Code ADDITIONAL INSTRUCTIONS:
Hank Crawford is an attorney who graduated from law school in July 1994 and passed the bar
exam. He has a struggling tax law practice but heard about the Black Lung Act and is thinking
about looking for potential claimants. He knows little about the Act, but he has heard about the
regulations governing fees. He believes the Department's regulations will prevent him from being
adequately compensated for his services if he chooses to represent claimants. He also contacted a
few potential claimants who indicated they might be interested in filing a claim but did not know if
they were eligible. Hank explained the fee restrictions to them and how it may affect their ability
to find a lawyer who will represent them under the conditions imposed by the department. Hank hires an attorney who files a complaint in federal district court naming Hank and the
potential claimants as plaintiffs. The complaint challenges the constitutionality of the Black Lung
Act as a violation of Hank's and the potential claimants' right to due process of law. The
government lawyer representing the Department of Labor moves to dismiss the suit on the basis
that the court is without jurisdiction to hear the claim. ASSUME YOU ARE A LAW CLERK WORKING FOR THE DISTRICT COURT JUDGE
HEARING THIS CASE. THE JUDGE BELIEVES THE CASE SHOULD BE DISMISSED.
SHE TELLS YOU TO DRAFT AN OPINION EXPLAINING WHY THE COURT IS
WITHOUT JURISDICTION AND TO BE SURE TO ADDRESS THE ARGUMENTS THAT THE PLAINTIFFS WILL ASSERT IN FAVOR OF THE POSITION THAT THE COURT HAS
JURISDICTION.
Louisville, Kentucky, is a city of 500,000 residents located in northern Kentucky. As part of its
municipal duties the city is responsible for providing garbage collection service for its residents.
Over the past twenty years the city hired various private garbage collection companies to haul
garbage. These companies were located either in Louisville, or one mile away across the Ohio
river in the state of Indiana. Unfortunately, none of the companies proved to be reliable in
providing service. So, three years ago the city decided to collect the garbage. It purchased trucks
and hired a work force to accomplish this task. Each residence is charged a set fee for hauling the
garbage. Initially the city gave each resident the option of using the city service or a private
company, but it subsequently passed an ordinance which allowed residents to use a private
company but only if the company charged no less for its services than the city charges to collect
the garbage. Thus, a resident could only use the services of a company that charged at least as
much as Louisville does to collect the garbage of the residents. ASSUME YOU ARE A LOCAL EXPERT ON CONSTITUTIONAL LAW. THE INDIANA
GARBAGE COMPANIES COME TO YOU FOR SAGE ADVICE ON WHETHER
LOUISVILLE'S GARBAGE COLLECTION IN LOUISVILLE AND OTHER CITIES
OFFEND THE CONSTITUTION. PLEASE ADVISE THEM ON WHETHER LOUISVILLE
HAS VIOLATED THE CONSTITUTION.
1. This is a two hour open book exam consisting of three essay questions. You may spend
any amount of time on the questions, however, each questions was designed to be
answered in no more forty minutes. Place the test question in the bluebook when you turn
in the exam and number your bluebook so that you indicate the total number of bluebooks
you have used e.g. 1 of 2, 2 of 2.
2. The questions are equally weighted (33%).
3. Please read the fact pattern carefully and answer the question asked at the end of each fact
pattern. Irrelevant material will not improve your grade and in fact may lower your score
if it makes your answer inconsistent and/or incoherent.
QUESTION I. (40 min.)
The Black Lung Benefits Act of 1972 was passed by the Congress and provides federal funds to
coal miners who have been totally disabled by pneumoconiosis, a respiratory disease commonly
found among coal miners. The Department of Labor awards benefits to disabled miners after an
administrative hearing which determines a miner's eligibility along with the level of benefits. The
Department established a rule allowing a claimant (miner), if s/he desires, be represented by
counsel. The Act also provides that if a claimant wins and is represented by counsel s\he is entitled
to reasonable attorney's fees payable from federal funds. However, any fee charged by an attorney
must be approved by the Department of Labor. The Department has taken the position that all
contractual fee agreements between an attorney and client are invalid and the Department has the
exclusive authority to set the level of compensation for an attorney representing a claimant.
QUESTION II. (40 min.)
Two years ago the Federal Bureau of Investigation (FBI) received a tip from an informant
concerning the existence of a group called MALI (Musicians Against Legal Injustice). According
to the informant the group is an association composed of 100 musicians who are protesting the
twin evils of legal injustice and new age music. The group planned to blow up concert halls
around the country where new age music groups played to large audiences of rich and corrupt
lawyers with poor musical taste. The FBI in response to the tip began following some of the
members of MALI and collecting information concerning the activities of the group. The
information collected on individual members included credit histories, secretly tape recorded
telephone conversations and videotape recording. Ultimately, the FBI terminated the investigation
when it discovered the informant was unreliable and that MALI was simply a peaceful protest
group.
Cannonball Adderley is a musician and is a member of MALI. He learned of the FBI investigation
and that information was gathered on him and nine other members of the group. He tells the nine
other members of the group about the investigation but many of them express the view that they
do not feel threatened by the FBI and they don't feel any need to Act. Cannonball then goes to the
president of MALI with this information and the president is outraged. Both Cannonball and the
president agree to file a suit in federal district court. Cannonball will be one plaintiff and MALI
will be the other plaintiff acting on behalf of the other members of MALI who were the subject of
the FBI probe. They allege that the activity of the FBI violated their First Amendment right to
freedom of speech and that Cannonball and the members of MALI suffered irreparable harm
because the FBI possessed information about Cannonball and other members which could be
disseminated and result in employers, especially government employers, not hiring them to play at
public government-sponsored events. In order to prevent the dissemination of the information the
relief requested was that the files be destroyed.
After the case was filed, the FBI entered into an agreement with the National Archives in which
all of its files and information on MALI and its members was transferred to the National Archives.
Under the agreement with the National Archives the files would be permanently sealed such that
no one, not even the FBI, would have access to the information.
ASSUME YOU ARE THE ATTORNEY REPRESENTING THE FBI. AFTER LEARNING OF
THE AGREEMENT WITH THE NATIONAL ARCHIVES AND REVIEWING THE
ASSERTIONS OF MALI ON BEHALF OF ITS MEMBERS YOU DECIDE THE COURT
LACKS JURISDICTION. PLEASE PRESENT THE ARGUMENTS SUPPORTING YOUR
POSITION THAT THE COURT LACKS JURISDICTION ON SOME OR ALL OF THE
CLAIMS IN THIS CASE.
QUESTION III. (40 min.)
However, since Louisville began to collect its own garbage the garbage companies in Louisville
and Indiana have been complaining. They believe that by collecting its own garbage and passing
the ordinance Louisville has effectively excluded other garbage companies from the garbage
hauling market in Louisville. Louisville has offered a number of incentives to its residents such as
not requiring its residents to sort its garbage into recyclable and nonrecyclable garbage. The
private companies contend that they cannot offer this service. If the company sorts the garbage
this takes extra time and manpower which drives up costs. They have therefore been unable to
offer garbage collection rates that are at least as low as Louisville's. Louisville sorts the garbage
and operates with little or no profit. However, any losses are simply covered by reallocating funds
from other city services. The garbage companies decide to take action when they discover that
Louisville is now collecting garbage in neighboring cities at the same rate it charges Louisville
customers. However, these cities are not subject to the Louisville ordinance concerning use of the
city garbage collection service. These cities use Louisville because of Louisville's low price.
These cities are, as a result, canceling their contracts with private Indiana and Louisville garbage
collection companies.