3 Hours - Open Book

1. For anonymity, use your assigned test number which was mailed to you.

2. Put your test number on this page and on all bluebooks.

3. If you do not know your test number, you may obtain it at the Communication Center or in the Records Office (Cindy Egeness) during the first 30 minutes of the exam period.

4. If you do not use your test number, you will be deemed to have waived your privilege of anonymous grading.

5. TURN IN YOUR BLUEBOOKS AND THIS EXAM AT THE END OF THE PERIOD.

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STUDENT CONDUCT CODE

IT IS A VIOLATION OF THE CODE:

1. To use any sources which are forbidden by the instructor to complete an exam.

2. To submit as one's own work the work of another.

3. To engage in any conduct which tends to give an unfair advantage to any student in any academic matter.

Knowledge of any violation should be promptly reported.

VIOLATION OF THE STUDENT CONDUCT CODE MAY RESULT IN EXPULSION

OR SUSPENSION FROM THE COLLEGE OR DISMISSAL FROM THE CLASS.

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GRADUATING SENIORS: IF YOU ARE A GRADUATING SENIOR, NOTE THIS FACT ON ALL BLUEBOOKS AND THIS EXAM PAPER. DO SO CONSPICUOUSLY.

TYPING AREA: If you are going to type your examination, the typing area is located in Room 107. You must return the exam to this room at the conclusion of the exam period.

SPECIAL INSTRUCTIONS

This is an open-book exam with three one-hour questions. You may use any books or written, printed, or photo-copied materials you have brought to the exam room.

Each answer will be graded separately and so must stand alone. Thus, in writing an answer to one question, do not refer to anything in the answer to another question. You may refer to statements made earlier within the same answer.

Please take the time to read each question carefully and outline your analysis before you begin to write the answer. If you make notes or outlines to organize your answer, please put them on your exam paper or in a separate bluebook marked "SCRATCH." Only material written in essay form will be considered in grading.

Discuss all issues reasonably presented, even if resolution of any particular one would by itself dispose of the problem. Specify all reasons supporting your conclusions, including alternative grounds, and discuss possible contrary arguments.

If you believe that, with respect to any particular issue, there are insufficient facts to warrant any conclusion, indicate what additional facts would be relevant and why.

If you believe that any statement of fact is ambiguous, resolve the ambiguity for yourself, indicating the nature of the ambiguity and how you resolved it.

Please write legibly.

Good luck!

QUESTION I (ONE HOUR)

In 1993 Congress held hearings on the health risks to non-smoking workers caused by exposure to "second-hand smoke" in their places of employment. Representatives of the Environmental Protection Agency and the Occupational Safety and Health Administration testified that the risks from second-hand smoke are serious and that immediate legislative action is necessary. Among other things, these witnesses urged Congress to extend any smoking ban it chose to enact to bars and restaurants because "waitresses bear one of the heaviest burdens of cancer and respiratory disease among workers in the country."

After the close of the hearings, Congress enacted, and the President signed, the Federal Cigarette Safety Act (FCSA). FCSA contains three sections.

Section 1 provides in part as follows: "Smoking is prohibited in all indoor places of employment, including, but not limited to, factories, office buildings, schools, lounges, cafeterias, restaurants, bars, and hotels. Any employer who fails to correct any violation coming to its attention shall be subject to a fine of $10,000 per incident. Any place of employment owned or operated by any agency of State or local government shall be exempt from the provisions of this Section."

Section 2 provides in part as follows: "The Secretary of Transportation shall withhold 50% of the federal highway funds otherwise allocable to a State from any State that fails to enact within one year from the effective date of this Act legislation prohibiting smoking in all indoor places of employment owned or operated by any agency of that State. The Secretary shall continue any such withholding from a State for a period of ten years."

Section 3 creates a Federal agency called the Federal Cigarette Safety Administration and authorizes that agency to investigate and prosecute violations of Section 1. In addition, Section 3 provides that the agency "shall be directed by an eight-member Board, four members of which shall be appointed, and subject to removal, by Congress, and four members of which shall be appointed, and subject to removal, by the President of the United States."

In 1992 the total amount of federal financial aid to the states for highway construction and maintenance was over $15 billion.

Please discuss and resolve the issues of Constitutional Law--Powers reasonably raised by the FCSA. Do not discuss any issue of Constitutional Liberties.

QUESTION II (ONE HOUR)

Scotus Corporation is the largest private business in the State of Mitchell in terms of earnings and work force. In 1991 Scotus earned profits of $300 million on total sales of two billion dollars and employed 100,000 persons (out of a total Mitchell civilian labor force of two million persons). Scotus manufactures and sells automobile tires. It operates five manufacturing plants in various Mitchell locations. It sells its tires in Mitchell and throughout the United States. In 1991 Scotus sold 50% of all tires sold in Mitchell.

Ockham Tire is an unincorporated sole proprietorship owned by a wealthy billionaire named Olga Ockham, who lives and has her tire factory in the neighboring State of Whately. Like Scotus, Ockham manufactures and sells automobile tires throughout the United States. In 1990 Ockham discovered and patented a revolutionary process for making tires. This process involves the use of a newly-synthesized chemical known as "Zytron-28," which Ockham has also patented. The tires produced by this new process last three times longer than conventional tires, including those manufactured by Scotus. In 1991 Ockham Tire began cutting into Scotus' market share in Mitchell. For example, in 1993 Scotus' market share of tires sold in Mitchell was reduced to 20%, while Ockham's market share was 45%.

In January, 1994, Aquinas, the Chief Executive Officer of Scotus spoke with the majority leaders of the two branches of the Mitchell Legislature. Aquinas informed the two legislators about the recent competition from Ockham and said that unless something was done quickly to help Scotus regain its market position, Scotus faced, at worst, a serious risk of bankruptcy, and, at best, the certainty of a drastic reduction in earnings and work force. The two majority leaders told Aquinas that the economic health of the Scotus Corporation was "very important to the economy of Mitchell" and that they were "confident of being able to work out some legislative solution which will gain the support of the Legislature." However, they cautioned Aquinas that any legislative solution would "have to be able to withstand a court challenge."

Shortly after that meeting, the federal Environmental Protection Agency published the results of a two-year study on "environmental hazards caused by new manufacturing methods." The study stated that 35 manufacturing methods introduced in the United States within the last ten years "present substantial environmental and health risks, including increased risks of cancer." One of the 35 methods mentioned in the report was the "process of manufacturing tires by the use of Zytron-28."

This report quickly came to the attention of those members of the Mitchell Legislature who were working on a legislative solution for Scotus' economic difficulties. After reading the report, they drafted a bill, which was enacted into law on March 1, 1994, as the Zytron-28 Environmental Protection Act (ZEPA). ZEPA prohibits the manufacture, sale, or distribution within Mitchell of any product containing Zytron-28. ZEPA authorizes the Attorney General of the State of Mitchell to prosecute violators of the Act. ZEPA states in its statutory preamble that the purpose of the Act is to "reduce the risks to the environment and to the health of Mitchell residents caused by the use of the dangerous substance known as Zytron-28."

Please discuss whether ZEPA is valid under the federal Constitution as applied to Olga Ockham.

QUESTION III (ONE HOUR)

In the situation described in Question II, before Olga Ockham could file a lawsuit challenging ZEPA, the following events occurred. On March 2, 1994, Erigena, a politically-conservative intellectual and founding member of a political organization known as "Americans United for the Preservation of Economic Freedom" (AUPEF), read about the enactment of ZEPA. Erigena was enraged at "this latest demonstration of the creeping socialistic strangulation of our precious freedoms." Erigena and nine other members of AUPEF decided to bring a lawsuit challenging ZEPA. On December 1, 1994, these ten individuals filed a federal district court lawsuit alleging the unconstitutionality of ZEPA. They alleged in their Complaint that each of them desired to purchase Ockham tires but were unable to do so as a result of the enactment of ZEPA. They sought money damages and injunctive relief prohibiting the enforcement of ZEPA. They named the State of Mitchell and Vivian Vegas, its attorney general, as defendants.

To what extent, if any, would entertaining the lawsuit brought by Erigena and his friends exceed the constitutional powers of or violate the prudential limitations upon the federal district court?