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Just for fun: Obama's con law exam
ZDNet Government ^ | May 18, 2009 | Richard Koman

Posted on 05/19/2009 7:10:23 AM PDT by ml/nj

University of Chicago. Con Law III. Autumn 1996. The exam is here.

Explanations are here.

TOPICS: Constitution/Conservatism; Government; News/Current Events
KEYWORDS: exam; law; obama
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The links Korman gives are to pdfs. There is some discussion at the link. I have no way of knowing if the documents at the links really come from Obama's law class, but it sure seems to me as if they could be as represented. And there is a separate question which is even if they are from Obama's law class, did Obama write these himself? Again, I assume that he did. Leaving content aside, they seem to be quite well written

Because I believe these to be real, and important, I have converted them to text and reproduce them here. Note that the underlining, particularly of case names, has not been retained here.


Final Examination
December 12, 1996 Autumn Quarter, 1996
Barack Obama


1. This is an open book exam. You may use any materials or notes used in our class. You may not refer to cases, articles, etc. that were not used in class.

2. You will have six hours to complete the exam. The exam is designed, however, to be completed in approximately three hours. Feel free to use the extra three hours as you wish (anxiously flipping through the casebook for that one last citation, or heading over to the gym for a good workout - your choice).

3. The exam consists of two Parts. In grading the exam, I will treat each part as roughly equal in weight. Part Two contains two separately numbered questions: I will accord roughly the same weight to each question.

4. I would greatly prefer that your answer be typed (word-processed). Assuming you type, you must double-space, use a If-point font, and provide for at least one inch margins all the way around the page. Your answer must be no more than 15 pages; I will stop reading after 15 pages.

5. If you really truly cannot type, or lack access to a word processor, then you may use a bluebook. Please write on only one side of the bluebook, and remember to skip lines.

6. Read each question carefully and think before you write. Please do not feel obliged to make use of the 15 page maximum in formulating your answers. The exam can be answered magnificently in half that number.

Good luck, and have a good holiday.

Part One (one and a half hours)

Helen, a forty-year old registered nurse, comes into your office seeking your best legal advice regarding possible constitutional claims against the State of Wazoo. Wazoo is a state in the United States. Helen informs you that she is a lesbian, and that she has been involved in a monogamous relationship with - and has shared a household with -- her partner, Rachel, for the past seven years. The two of them moved to the State of Wazoo just six months ago, in part so they could be closer to Rachel’s ailing mother.

Since their arrival in Wazoo, Helen has worked at Wazoo State Hospital, a state owned and operated facility. Although the subject of her sexual orientation did not come up when she was interviewing for the job, Helen has made no attempt to hide her relationship with Rachel from her co-workers at the Hospital, and most them, including her supervisor, are aware that she is a lesbian. Helen maintains that she has suffered no harassment or discrimination on the job, and has received excellent performance reviews.

For some time now, Helen and Rachel have wanted to start a family. Rachel cannot bear children for various medical reasons. Before moving to Wazoo, Helen attempted to become pregnant by way of artificial insemination, using sperm donated by Rachel’s brother, Jim. These attempts were unsuccessful, and Helen’s doctor subsequently advised her that due to blockage in her fallopian tubes, Helen’s best - and perhaps only -- hope of becoming pregnant would be through the process of in vitro fertilization (the procedure would involve removing Helen’s eggs from the uterus, fertilizing them with Jim’s sperm in a laboratory, and then transferring them back into Helen’s uterus). Moreover, Helen’s doctor informed her that because she is nearing the end of her childbearing years, the likelihood of in vitro fertilization resulting in a successful pregnancy would drastically diminish within the next two to three years.

Helen and Rachel are therefore anxious to move forward with in vitro fertilization; they see it as their last chance at having a child of their own. Because Rachel’s work provides no health benefits, and given the expense of in vitro fertilization, Helen and Rachel will not be able to afford the procedure unless it is covered under the health care plan Helen receives as a state employee.

Unfortunately, when Helen went in to talk to her benefits officer at the Hospital, she learned that the Wazoo state legislature passed a law last year, titled the “Preservation of Family Values Act” (PFVA), that, inter alia, prohibits any doctor or health care professional, whether in private practice or employed by the state, from providing infertility services to any unmarried person within the State of Wazoo. The statute further prohibits the use of any hospital, clinic or health care facility, whether public or private, from providing such services to any unmarried person within the State of Wazoo. PFVA goes on to read that “in the event a federal or state court finds these general prohibitions against the provision of infertility services to unmarried persons to be unconstitutional, then the prohibitions shall apply only to the provision of infertility services to homosexual couples.” Finally, PFVA mandates that coverage of infertility services under the health care plan for state employees shall apply only to married, heterosexual couples.

The benefit officer at Wazoo State Hospital went on to tell Helen that in a highly publicized case last year, a single woman and her male partner obtained infertility services from a private clinic, in direct violation of PFVA. The Attorney General of Wazoo declined to prosecute the woman’s doctor in that case, and stated publicly (although not in court) that his office understood the primary purpose of the law to be the prevention of childbearing by homosexual couples. As a consequence of this failure to prosecute on the part of the Attorney General’s office, private doctors and clinics throughout the state have continued to provide infertility services to those persons who can pay their fees, without inquiring into the patient’s sexual orientation. Public institutions like Wazoo State Hospital, on the other hand, have felt obliged to abide by PFVA, and the benefit officer knows of no instance where unmarried state employees have been able to obtain coverage for infertility services under their state health plan. Helen’s attempt to obtain coverage for the in vitro fertilization procedure through her health plan has therefore been denied.

Assume that everything the benefit officer has told Helen turns out to be true, and that there are no state action or standing problems involved in Helen’s case. Assume further that 1) PFVA does not define homosexuality; 2) PFVA defines marriage in the traditional fashion (i.e. a state-sanctioned, legally binding contract into which persons of the same sex cannot enter); and 3) PFVA’s stated purpose is both brief and vague - namely, “to preserve the integrity of marriage as an institution,” and “to curb the steady increase in out-of-wedlock births” (the legislative record contains summary findings that out-of-wedlock births frequently result in economic hardship for both mother and child, and that such hardship eventually places a unsustainable strain the state’s social service budgets).

Please analyze the possible claims Helen may have under both the Equal Protection Clause of the Fourteenth Amendment, and under the “substantive” component of the Due Process Clause of the Fourteenth Amendment. Given that this is a preliminary memo for your file, you do not need to arrive at any definitive conclusions regarding Helen’s claims; rather, your analysis should include any arguments that seem plausible, and should then identify any potential weaknesses in these arguments. In framing your analysis, you may find it useful to discuss the constitutionality of each component of PFVA separately. You should also consider the constitutionality of these various clauses in the statute not only as applied to Helen, but also as potentially applied to unmarried persons generally.

Part 2 (one and a half hours)

Two years ago, Mayor Dudley Duright was elected as the first African-American mayor of Wazoo City. Wazoo City is the largest city in the State of Wazoo, with a population that is roughly 50 percent African-American and 50 percent white. The population is remarkably segregated, with almost 80 percent of all African-Americans residing in the city’s South Side, and almost 90 percent of whites residing in the city’s North Side. In winning the election, Mayor Duright garnered almost 95 percent of the African-American vote, and less than 15 percent of the white vote.

Since the election, the Mayor has been under great pressure from some of his supporters to open up economic and employment opportunities to Wazoo City’s African- American population. These supporters identify two areas of particular concern: city contracting, and the racial composition of the city’s Fire Department. You have been appointed as the city’s corporation counsel, and he calls you in to discuss these issues.

1) Contracting. The Mayor first refers you to studies showing that only 5 percent of the contractors certified by the city to obtain public works projects are African- American, and that only 1 percent of all city contracts actually awarded go to African- American owned firms. These same studies also show that African-American contractors are much more likely to hire African-American workers: less than 5 percent of the workers employed by white contractors are African-American, compared to 50 percent of the workers employed by African-American contractors.

The Mayor’s supporters find the paucity of city work going to African-American contractors particularly galling given that poverty and unemployment in the city’s African-American neighborhoods is almost three times higher than it is in the city’s white neighborhoods. Moreover, under a federal program called Project HOPE, the city has just received $1 billion, to be allocated over a period of ten years, for the rehabilitation of Wazoo City’s low-income housing projects. Seventy-five percent of these housing projects are located within the city’s South Side; however, if current patterns continue, the lion’s share of Project HOPE contracts will go to white contractors.

The majority of scholars who have studied the issue conclude that the lack of representation among African-Americans in the construction industry is the result of long-standing discriminatory practices at a number of different levels: a history of segregation and unequal resource allocation at the elementary and secondary school level; past zoning practices that have encouraged residential segregation; the continued inability of African-Americans to gain entry into trade unions that serve as the training ground for many successful contractors; the unwillingness of banks to finance African-American concerns (most of which are small and undercapitalized); the unwillingness of established white contractors to take on African-American firms as subcontractors; and finally, the well-established, albeit covert, practice in previous administrations of giving contracts only to their political friends, the vast majority of whom were white. Despite the wealth of historical and anecdotal evidence, however, there is no concrete evidence that the city has engaged in systematic discrimination in the awarding city contracts at any time during the past fifteen years.

The Mayor is aware that the courts have struck down a number of affirmative action programs involving contracting in recent years, and is sensitive to accusations that he cares only about Wazoo City’s African-American population. The Mayor is also concerned that affirmative action programs too often benefit only a select group of African-Americans, and do not address the severe problems of unemployment and disinvestment in Wazoo City’s poorest neighborhoods. The Mayor has therefore asked his staff to prepare a plan that he believes will address his supporters’ concerns and survive challenge in the courts. The plan involves only those contracts related to the $1 billion, ten-year Project HOPE program. The plan would give a significant preference (a “plus” factor) in the awarding of Project HOPE contracts to any firm whose principle place of business is in a “low-income community” or whose owner is a resident of a “low-income community.” The plan would provide this same preference to any firm that meets particular goals in hiring workers who are residents of a “low-income community.” Under the plan, the term “low income” would be defined on the basis of such objective measures as median income and unemployment; the boundaries used to define particular “communities” would be identical to those that the city has used in the past for various planning purposes. Because the majority of Wazoo City’s low income communities are located in the South Side, the net result of the plan would be to give a substantial preference to contractors that are either owned by African-Americans or who hire African-American workers. Nevertheless, the Mayor’s staff has indicated that even if the plan is implemented, the majority of Project HOPE work will still go to established white contractors.

The Mayor expects his plan to be challenged in the courts by the Wazoo City Contractors Association. He asks you to prepare a memo evaluating the legality of his plan under the current law established by the United States Supreme Court. You should argue both sides of the issue for him, but end by giving him your considered opinion on how to the courts might come out, and how he might best frame his proposal so as to survive constitutional scrutiny.

2) Fire Department Hiring. The second major area of concern for the Mayor involves the method by which new firefighters are hired by the Fire Department. At the moment, only 15 percent of the city’s fire-fighters are African-American, despite the fact that the pool of applicants largely mirrors the general population of Wazoo City (50 percent African-American). It is well-established that up until 1980, the Fire Department engaged in discriminatory hiring practices; indeed, getting a job as a firefighter was based largely on your political connections to party ward bosses. As the result of several lawsuits brought by African-American plaintiffs, and a federal consent decree subsequently entered into by the city in 1980, the Fire Department now hires new firefighters exclusively based on each applicant’s ranking on a written exam that is administered once a year. The examination is prepared and graded by a well-reputed testing firm that screens for any potential cultural bias in the examination, and all applicants are provided the necessary materials to prepare for the examination.

Despite claims by some of his supporters that the fire-fighter examination is rigged, the Mayor believes that the difference in test performance between African- Americans and whites is primarily the result of the inferior schooling that African- American applicants have received in the past. At the same time, the Mayor is skeptical that the existing written exam accurately measures aptitude for the job of being a firefighter. He therefore plans to announce that starting next year, Fire Department hiring will no longer be based on the applicants score on an extensive written examination. Instead, the Department will administer to each applicant a short basic aptitude test; all applicants who pass this simple test and meet other basic qualifications (physical examinations, etc.) will be deemed qualified for hire, and will then be selected to fill available job openings on the basis of a lottery. The Mayor’s staff predict that as a result of this change, the makeup of the Fire Department, over time, will come to more closely resemble the racial makeup of the city.

The Mayor has a major political problem brewing, however: the Firefighter’s Union has learned of the Mayor’s plan, and is adamantly opposed to any change in existing hiring practices. The Union argues that the Mayor’s plan represents nothing more than a disguised affirmative action program, and a return to old-fashioned patronage. The Union therefore plans to mount a major petition drive to place a binding referendum on the ballot in the next statewide election. The referendum would essentially require that all applicants for government employment in the State of Wazoo, including municipal employees, be hired on the basis of their ranked performance on state approved written examinations (the referendum would exempt the filling of certain “political appointees” from the requirement). The Mayor points out that for the better part of this century, the city has had exclusive power to determine the manner in which it selects its employees. It is clear, however, that under the Wazoo State Constitution, a majority of voters may transfer this power to the state through the referendum process. The Mayor also believes that the referendum is likely to pass, particularly because it is phrased without reference to race or gender, but will be packaged solely as a “good government” measure.

The Mayor asks you to write up a brief analysis regarding the possibility of challenging the referendum, should it come to pass, as unconstitutional racial discrimination violative of the Equal Protection Clause. As before, you should make the strongest argument that you can for bringing such a challenge, and then indicate the weaknesses in your argument. In considering this question, however, feel free to present to the Mayor any broader policy issues or theories of racial justice that are raised by his plan and/or the referendum.

To: Students in Con. Law III
From: Barack Obama
Re: The Exam

Overall, I was impressed with the quality of the exams’- almost all of you identified the main issues, leaving me to score the exams mostly on the precision of your answers. The memo below gives you a basic idea of the analysis I was looking for in grading the exams, as well as some of the thoughts that you may have raised and for which I assigned appropriate credit. This memo isn’t intended to be exhaustive (although it is more comprehensive than I would have expected from any exam, given the time limits you were all working under); there may be issues that some of you identified that represent sparkling insight and for which you were awarded credit, but which are not included in this memo.

Each exam should have four grades on the cover. The circled grade is the “official” grade. The other three grades are by part: that is, Part I, and the two parts of Part II. These latter grades are basically provided for your information, but they do not necessarily average out to your final grade, since the final grade took the curve into consideration.

Question I - The Preserving Family Values Act

There are a number of possible claims available to Helen under both the Equal Protection Clause and the “substantive” prong of the Due Process Clause. In organizing a response to the question, it’s useful to examine each component of PFVA in turn.

The prohibition against providing infertility services to unmarried persons. The first two clauses of PFVA bar both private and public doctors and hospitals/clinics from providing infertility services to unmarried persons. As most of you recognized, the question at the outset is what degree of scrutiny a court should apply in evaluating the classification between married and unmarried persons.

With respect to a possible Equal Protection claim, the courts have never recognized unmarried persons as a “suspect class” (nor, possibly, should they, according to many of you, at least not if we accept the Carolene Products/Professor Ely/processual view of the Equal Protection clause as “protecting discrete and insular minorities”). As a consequence, strict scrutiny of the unmarried/married classification under the Equal Protection clause will arise only if we can establish that the PFVA’s prohibition against providing in vitro fertilization implicates one of the rights that the Supreme Court has deemed “fundamental.”

At first blush, the PFVA seems clearly to implicate such a right: the right to procreate first announced in Skinner v. Oklahoma. It is true that Skinner involved an active attempt by the government to sterilize persons it deemed unfit to procreate; as -such, it involved the sorts of violations of a person’s bodily integrity that have traditionally been suspect not only under long-standing interpretations of various clauses in the Bill of Rights (4 th, 5th, 8th, etc.), but under common law as well. In contrast, the PFVA involves no such encroachments on bodily integrity.

Nevertheless, if the language of Skinner is taken at face value, then the fundamental right at stake in that case goes well beyond issues of bodily integrity, but instead involves the broader principle that the government cannot be in the business of deciding who should bear children and who should not - at least without offering up some pretty compelling reasons for doing so. If we accept this broad reading of Skinner, then it would appear doubtful that the distinction between the more “active” efforts to sterilize persons selectively and more “passive” but no less selective prohibition on the use of readily available technology to induce fertility should be legally relevant, at least for purposes of answering the threshold question of whether strict scrutiny does or does not apply.

Assuming that a court finds Skinner to be directly on point, and therefore applies strict scrutiny to the PFVA, then the next step in our analysis is determining whether the PFVA is narrowly tailored to serve a compelling state interest. My guess is that the PFVA does not meet such a standard. While it is true that the Court has found the state to have anlegitimate interest in preserving the state-sanctioned marriage union (see, e.g., Michael H.), the Court has never indicated such a generally stated, inchoate interest to be sufficiently compelling so as to justify an outright ban on the exercise of a constitutionally protected right.

Moreover, as most of you pointed out, the connection between restricting infertility services to married couples and “preserving the integrity of marriage” is so tenuous that it cannot be considered a narrowly tailored means of serving that interest. Similarly, although preventing out-of-wedlock births might be considered compelling given the correlation between such births and various social problems, the state has at its disposal a wide range of means to discourage such births (e.g. programs to encourage contraception, abstinence, etc.) that do not involve far-reaching restrictions on the ability of unmarried persons to access infertility services.

Of course, Skinner doesn’t end our inquiry. In cases subsequent to Skinner, the Supreme Court has grounded its analysis with respect to reproductive rights issues not on the Equal Protection Clause, but rather, in the “substantive” prong of the Due Process Clause. Moreover, in an attempt to cabin the potential breadth of unenumerated rights under the Due Process Clause, the Court has left the status and scope of the “procreation right” increasingly unsettled.

Thus, on the one hand, the line of cases from Griswold through Roe seems entirely consistent with our broad reading of the “right to procreate” discussed above. Starting with a relatively narrow opinion in Griswold that relies heavily on the concept of marital privacy, the Court went on in Eisenstadt to announce “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In Roe, the Court found this right sufficiently fundamental that any burden the government places on the right must be subject to strict scrutiny. Based on these cases, one might safely assume that if the right to make reproductive decisions free from unwarranted government intrusion is sufficiently expansive to encompass an unmarried woman’s freedom to purchase contraceptive or terminate her pregnancies, then it must also encompass Helen’s right to access available medical technology in an effort to get pregnant.

On the other hand, both the language and results in substantive due process cases since Roe indicate a potential narrowing of this right in at least two ways. First, in a number of cases involving the regulation of abortion (e.g. Casey), the Court appears, at least implicitly, to have moved away from the familiar (and perhaps unduly rigid) “fundamental rights/strict scrutiny” approach to analyzing these claims, and has instead resorted to what seems to be a more fluid and particularized balancing of individual liberty interests versus the interests the state seeks to vindicate and the means it employs.

How much of a difference such a “balancing” approach might make in a court’s evaluation of this case isn’t clear, however. After all, even under a balancing of interests analysis, a court would probably feel compelled to recognize that Helen has some sort of interest in determining her procreative status, irrespective of whether that interest is labeled “fundamental.” On the opposite end of the scale, the State, in passing PFVA, has offered no interest that is remotely comparable to the state’s interest in protecting the life of the fetus.Moreover, if we take the analogy between abortion regulation and in vitro regulation one step further, and assume that even under a balancing approach a court must still strike down restrictions that “unduly burden” the exercise of a right/interest, then it is hard to conceive how an outright ban on the exercise of Helen’s right/interest in having children could survive judicial scrutiny.

The second, more troubling, issue involves the Court’s tendency, in cases since Roe, to embrace notions of “tradition” as a means of curtailing the potential expansiveness of rights recognized under the Due Process Clause. As most of you recognized, this trend is most prominently displayed in Bowers v. Hardwick, but can also be seen in the Michael H. case, a case in which Justice Scalia argued that constitutionally protected substantive rights under the Due Process Clause must be defined at their most specific, traditionally recognized level. As applied to this case, Justice Scalia’s approach might result in a relatively narrow description of the right to procreate, i.e. the right to bear children within the context of a monogamous, heterosexual marriage; in that case, the PFVA would be subject only to rational basis review.

Helen has several possible answers for Justice Scalia. First, Helen can point out that the majority of the Court has never explicitly embraced Justice Scalia’s cramped approach to defining the scope of rights protected under the substantive Due Process Clause. Indeed, such an approach, while consistent with Bowers, would be almost impossible to reconcile with the contraception and abortion cases. Second, the absence of any clear tradition with respect to in vitro services for single women cuts both ways: while there may be no clear tradition establishing the right to obtain such services, there is also no clear tradition of preventing single women from obtaining such services - something that could not be said with respect to the tradition of criminalizing homosexual sodomy. Third, Helen might argue for a narrow reading of Bowers, noting the Court’s emphasis in that case on the absence of a connection between homosexual sodomy and “family, marriage or procreation”; in contrast, the connection between Helen’s ability to access in vitro services and her ability to bear children in both obvious and direct.

Finally, as a fallback position, Helen might argue that the “fit” between the PFVA restrictions as applied to unmarried persons, and the purported state interests in preserving the institution of marriage and preventing out-of-wedlock births is so poor that the PFVA does not even survive rational basis review under the Equal Protection Clause. After all, the number of persons utilizing in vitro fertilization is so small that the PFVA can have a meaningful impact on the marital and reproductive decisions of only a negligible number of persons; with the vast majority of unmarried persons still free to have children out of wedlock, the statute must be considered grossly underinclusive. Conversely, if the state’s true interest is to avoid the public welfare costs associated with supporting single mothers and their children, then the means it has chosen might also be considered overinclusive, at least insofar as it sweeps in heretofore self-supporting persons like Helen.

Of course, the more rigorous the level of rational basis review a court engages in (recall that Eisenstadt was supposedly decided under rational basis review), the more the court would appear to be engaging in heightened scrutiny - an indication, as some of you suggest, that courts do not use the tools of Equal Protection or substantive Due Process doctrine (i.e., three, tiers of judicial scrutiny, or the distinction between ordinary “interests” and “fundamental rights”) to guide their analysis, but rather, use these labels to justify, after the fact, what are inescapably decisions based on policy calculation, ethical and political considerations, and the idiosyncratic values of particular justices.

Prohibition against providing in vitro services to homosexuals. The question here involves analyzing the degree to which PFVA more closely resembles the classifications at issue in Romer or Bowers; or, to state the problem a bit differently, evaluating the degree to which Romer modifies Bowers.

As almost all of you recognized, despite some persuasive arguments by the 9 th Circuit in Watkins, the Supreme Court has never recognized homosexuals as a suspect class for equal protection purposes. Indeed, although the Court in Bowers did not explicitly pass on the equal protection claims raised in that case, its willingness to uphold a statute criminalizing homosexual sodomy, while reserving the issue of whether heterosexual sodomy could be similarly criminalized, seems tantamount to stating that laws which discriminate against homosexuals are constitutional. The same conclusion can be drawn from the Bowers opinion’s substantive due process analysis: not only does the Court define the right of privacy so narrowly (based on the sort of “traditionalist” reading discussed above) that the private, consensual sexual conduct at issue in the case falls outside its ambit, but the Court goes on to say that a majority’s interest in expressing its moral distaste for homosexual conduct is, by itself, a sufficiently legitimate purpose for passing such discriminatory legislation.

We’ve discussed above whether Bowers forecloses the possibility of a finding that the PFVA encroaches on one of Helen’s fundamental rights. If a court finds the right to procreate encompasses the right to obtain in vitro services, then it shouldn’t make a difference whether Helen is gay or straight - strict scrutiny should apply, and, according to our earlier analysis, at least, PFVA will be struck down.

A more interesting question arises if we assume that a court rejects Helen’s claim that a fundamental right is at stake, and instead chose to subject PFVA to rational basis review. The recent Romer opinion may not overturn (in fact, it doesn’t even mention) Bowers, but it nevertheless indicates that even under rational, basis review, the Equal Protection Clause does not permit classifications based merely on a majority’s “distaste” of a particular group - at least not insofar as the classification is not merely directed at the group’s ability to engage in particular conduct that the majority finds disturbing, but rather, is “class legislation” that potentially disadvantages the group in a range of activities unrelated to any particular conduct.

If this is an accurate reading of Romer, then it shouldn’t be hard for Helen to argue that the PFVA is in fact such noxious class legislation. After all, in the absence of any showing by the State of Wazoo that the PFVA, as applied solely to homosexuals, either strengthens marriage or prevents out-of-wedlock births in any statistically meaningful way, Helen could argue that the only conceivable purpose of the law is to harass and stigmatize homosexuals.

Helen’s argument isn’t a slam dunk, however, given the remarkable opacity of Justice Kennedy’s opinion in Romer. In particular, it is possible to argue that what triggered the “rational basis review with teeth” engaged in by the Court in Romer was not the mere fact that the Colorado amendment targeted homosexuals, but rather, was the unconfined breadth of the Colorado amendment’s potential application. In line with this more limited reading of Romer, the State of Wazoo might argue that unlike the Colorado amendment, the PFVA does not sanction discrimination against gays solely because of their status, nor does it discriminate (or potentially discriminate) against them across the board (e.g. in their possibility of obtaining employment, housing, receipt of government services, etc.). Rather, the State of Wazoo might argue, the PFVA is narrowly directed at a particular form of conduct: namely, the rearing of children by homosexual couples, a form of conduct that the majority of Wazoozians find morally objectionable, in precisely the same way that the majority of Georgians in Bowers found homosexual sodomy to be objectionable.

Which spin on Romer the Court might adopt is anybody’s guess. What is safe to say is that the views of particular justices on the desirability of rearing in children in homosexual households would play a big part in the decision.,

Restricting state health care plan coverage of infertility services to married, heterosexual couples. The final clause of the PFVA restricts the coverage of in vitro services under the state health plan to married, heterosexual couples. Most of you correctly identified the relevant cases here: in Maher and Harris, the Supreme Court ruled that the federal government was not obliged to fund abortions under its Medicaid program, even though the Medicaid program did cover pregnancy services. Both decisions rested on several related premises: 1) while the government may not unduly burden the exercise of a fundamental right like abortion, it is under no affirmative obligation to fund (“subsidize”) the exercise of that fundamental right (allowing for certain narrow exceptions involving criminal trials, etc.); 2) classifications based on wealth do not trigger strict scrutiny, even when they implicate a person’s ability to exercise fundamental right; and 3) the fundamental right to make reproductive decisions free from unwarranted government intrusion does not mean that the government cannot subsidize, and thereby preference, some choices (e.g. pregnancy) over others (e.g. abortion).

At first blush, at least, the analogy between the abortion funding cases and this case seems fairly straightforward. First, it is clear that even if a court defines the right to procreate broadly enough to encompass Helen’s desire for in vitro services, and proceeds to strike down the PFVA under either the Due Process Clause or fundamental-rights prong of the Equal Protection Clause, the State of Wazoo remains under no constitutional obligation to subsidize any in vitro services if it doesn’t want to. It seems equally clear that if the State of Wazoo chooses to subsidize some constitutionally protected activities related to procreation (say, providing both coverage for pregnancies and abortions, but not providing in vitro coverage), there is nothing in the Fourteenth Amendment to prevent them from making that choice.

What a number of you missed, however, is the question really at issue here: namely, whether the State of Wazoo can choose to subsidize some of its residents (married persons) in the exercise of a constitutionally protected activity (in vitro fertilization), while choosing not to subsidize other residents (unmarried persons, or homosexuals) in the exercise of that very same activity. In other words, the analogous situation in the abortion context is not where the state chooses to subsidize pregnancy, but fails to subsidize abortion; rather, it is where the state chooses to subsidize abortion for black women, say, but not for white women.

Of course, the analysis here isn’t quite that simple, since - as we’ve discussed above - neither unmarried persons nor homosexuals are considered a suspect class. It is therefore conceivable that a court might strike down the PFVA solely due to the fact that the statute infringes on a fundamental right, while at the same time upholding the funding classification under the most deferential form of rational basis review. Nevertheless, what is important to keep in mind is that the same “rational basis with teeth” arguments that are available in evaluating the constitutionality of the first three clauses of the PFVA are equally available here, and are not foreclosed by Maher or Harris.

Gender claims. A number of you mentioned the possibility of raising a gender claim on Helen’s behalf, based either on the notion that only lesbians would have any need to resort to in vitro fertilization (presumably a male couple would need not so much in vitro services as they would a surrogate mother) or based on a broader theory that the PFVA reinforces gender stereotypes by coercing people into a nuclear family norm.

The problem with the first approach is that the statute itself is facially neutral with respect to gender, and under cases like Feeney and Geduldig, Helen might have a hard time convincing a court that the Wazoo legislature passed the law with the intention of discriminating against women as a class. Similarly, while it is true that some of the language in the abortion cases (e.g. Casey) and the gender cases suggests some sensitivity to the relationship between marriage norms and the gender hierarchy, it has never gone so far as to suggest that marriage itself, as an institution, oppresses women; to strike down the PFVA on that basis would call into question almost any statute - e.g. family laws, property laws, estate law, tax laws - that privilege marriage over other forms of intimate relations, something that the Supreme Court is not likely to do anytime soon.

Question IIA - Mayor Dwight’s Contracting Plan

Most of you correctly identified the threshold issue here: does the Mayor’s contracting plan constitutes a race-based affirmative action program? If the program is race-neutral, then it should be subject to only rational basis review under the Equal Protection Clause; under rational basis review, the program would almost certainly pass constitutional muster, since it appears to be rationally related to the legitimate government purpose of alleviating poverty, encouraging employment, and promoting business relocation in low-income communities. If, on the other hand, the program is held to be a race-based affirmative action program, then Mayor Duright will have an uphill battle having it upheld in the face of an equal protection challenge.

In answering this threshold question, some of you jumped the gun a bit and simply declared the low-income classification contained in the Mayor Duright’s plan to be a thinly-veiled proxy for race. Although the hypothetical certainly offers some evidence for this conclusion, this is not the type of situation that existed in Yick Wo or Gomillion where the law is neutral on its face but “unexplainable on grounds other than race.” (Arlington Heights). Nor are we dealing with the type of program at issue in Adarand, which purported to provide preferences to contractors who suffered from socio-economic disadvantage, but then made the irrebutable presumption that any contractor who was a member of a minority group fell into this economically disadvantaged category; the Mayor’s plan carries with it no such presumption. Thus, any potential challenge to the plan would have to be evaluated under the familiar standard first set forth in Washington v. Davis for cases involving racially disparate impact - i.e. in order to invoke strict scrutiny under the Equal Protection Clause, the plaintiffs would have to show that the Mayor’s plan, while racially neutral, intentionally discriminates against whites.

In making their argument, the white contractors might point to various factors that the Supreme Court, in Arlington Heights, says may support a claim of invidious discrimination: for example, the sequence of events leading up to the plan (a black mayor is elected in a racially polarized election) and the substantive departure in the manner in which HOPE contracts are being awarded relative to other contracts are allocated. The problem that the white contractors face, however, is that despite the lip service that the Court has given to such “circumstantial evidence” in making an invidious intent determination, the case law indicates that it rarely, if ever, finds such circumstantial evidence, standing alone, to be sufficient (see, e.g., the result in Arlington Heights itself, where the Court ruled against black plaintiffs challenging exclusionary zoning).

Moreover, according to cases like Feeney, the mere knowledge on the part of the Mayor and his staff that the proposed plan disproportionately benefits blacks and disadvantage whites does not, by itself, prove invidious intent. Rather, the white plaintiffs will have to show that the Administration implemented the plan because of, and not merely in spite of, its disparate impact on whites.

What does it mean for the government to pass a law because of, rather than merely in spite of, it racially disparate impact? If it means (as cases like Arlington Heights and McCleskey seem to suggest) that the government must be motivated by an active animus towards the group to be disadvantaged by its action, then Mayor Duright can plausibly -- and perhaps sincerely -- answer that neither he nor his administration harbor such animus towards whites; they are simply interested in promoting opportunities for residents of poor communities, a disproportionate number of whom happen to be black

Alternatively, the white contractors might argue that the “because of’ test simply requires a showing that the government, though its actions, seeks to benefit a particular racial group, as a group, instead of allocating rewards and burdens on the basis of some objective, non-racial standard like “merit.” Assuming; however, that the Mayor’s proposal will in fact utilize “objective measures” such as median income or firm location in determining who receives the benefit of a “plus factor” in the ‘allocation of contracts, then there appears to be nothing which prevents white contractors from benefiting from the program -- other than, perhaps, their own unwillingness to relocate into “low-income” communities or hire “low-income” workers. The mere fact that there is a strong correlation between race and the objective measure being used (in this case, “low- income” status) can’t be sufficient to show intent (see, e.g., Justice O’Connor’s concurrence in Hernandez); if it were, then black plaintiff could presumably sue a city or state whenever - under the guise of urban planning or industrial development - those governmental bodies subsidized firms to locate in downtown or suburban areas that happen to contain no black residents.

Thus, it would appear that under current Equal Protection doctrine, white plaintiffs would have a very difficult time proving that the Mayor’s plan is based on an invidious intent to discriminate against whites - a telling example, perhaps, of why an “intent” test is not a particularly fruitful means of analyzing disparate impact claims in a society where the socio-economic disparities between the races are so stark, pervasive, and deeply-rooted.

Our analysis would be incomplete, of course, if we didn’t at least consider the possibility that a court might find the Mayor’s program to be a race-based affirmative action program. If that case, Supreme Court precedent under Croson and Adarand would require the court to subject the program to strict scrutiny; the fact that the program might be described as a “benign” racial classification would be irrelevant (Recall that Adarand resolves the issue, left open in Croson, as to whether courts must use a more deferential standard in evaluating federal, as opposed to state/municipal, programs. The answer is no. As a consequence, the fact that the HOPE program is federally funded is irrelevant to our analysis).

Despite Justice O’Connor’s insistence in Adarand that strict scrutiny is not necessarily fatal, both Adarand and Croson indicate that race-based affirmative action programs are permissible only when narrowly tailored to remedy specific, documented instances of current or prior discrimination. Most of you did a good job evaluating the various factors in the hypo that might help or hurt the Mayor’s cause. On the plus side, the proposed program a) is of limited duration; b) provides for a “plus factor” rather than strict quotas or set-asides, and thus still allows for both individualized determinations and competition across racial lines; and c) creates a diffuse, rather than a localized, burden on white contractors (at least theoretically - it is possible, of course, that the program drives some smaller white contractors out of business). Some of you also mentioned the race- neutral language in which the program is framed as being relevant to the analysis under strict-scrutiny -- but if we are evaluating the program under strict scrutiny, then presumably the court has already decided that the program is not really race-neutral.

On the minus side, the evidence of past or current discrimination - or at least tacit acceptance of discriminatory practices in the contracting industry -- by the City is, at this point, at least, to tenuous to meet the rigorous standards of proof called for in Croson. The statistical disparity between certified black contractors (5%) and contracts awarded to black contractors (1%) is ‘a useful starting point: as most of you pointed out, one of Croson’s central holdings is that only disparities between the number of contracts awards to minorities and the number of qualified black contractors can serve to justify an affirmative action program in contracting (disparities between the percentages of contracts awarded and the percentage of minorities in the general population are not relevant, according to Justice O’Connor, no matter how gross the disparities may be).

Nevertheless, Croson and Adarand clearly indicate that bare statistics are only a starting point unless they can’t be explained as resulting from factors other than race. In her opinions, Justice O’Connor is somewhat vague on what additional evidence does provide a firm basis for a race-based affirmative action program (other than some sort of “smoking gun” indicating intentional discrimination on the part of recent administrations in awarding city contracts). What we do know is that evidence of “societal discrimination” of the sortcurrently available to the Mayor won’t fly with the Court; according to Justice O’Connor, such evidence does not provide any principled means by which to define the precise scope of injury sought to be remedied. Thus; too the extent that the Mayor is interested in designing a program that can withstand strict scrutiny, he better get cracking in search of more hard evidence of past discrimination in the contracting industry or in the dispensing of city contracts.

Question IIB - Mayor Dwight’s Firefighter Plan

This question offers a slight variation on the issues raised by the Mayor’s contracting plan.

The surface parallels between our hypothetical and the fact pattern in Washington v. Seattle School Board should have been relatively easy to spot (Some of you also cited Romer, which isn’t quite right - it was the lower court, and not the Supreme Court, that emphasized the “government restructuring” aspects of the Colorado initiative. Still, I gave you credit if your analysis tracked the discussion below, albeit citing the wrong case). Like the voter initiative in Seattle, the referendum being proposed by the union appears to single out an issue of special interest to blacks - in our case, fire department hiring practices -- and attempts to shift decision decision-making power over that issue from the local to the state level. According to Seattle, the fact that a state has the authority to make such a shift isn’t be relevant; a restructuring of the political process to make passage of “race legislation” more difficult than other forms of legislation places “special burdens on racial minorities within the governmental process,” in violation of Equal Protection Clause.

But is the Mayor’s plan in fact legislation/decision-making of a “racial nature” as that term is used in Seattle? And, even if the Mayor’s plan can be considered “racial” in nature, does that automatically render a facially race-neutral referendum that disallows the plan a “racial classification” subject to strict scrutiny?

These are tricky questions, mainly because Justice Blackmun’s opinion in Seattle lends itself to at least two very different readings. On the one hand, it is possible to argue that for all its fancy talk about government restructuring and democratic processes, Seattle is really just a straight-forward disparate impact case that was settled using the principles set out in Washington v. Davis. Under this reading, the Seattle School Board’s busing program was an explicitly raced-based effort to vindicate the rights of black schoolchildren to .a non-segregated education. By forbidding busing to achieve this explicitly racial purpose (while still permitting busing for various non-racial reasons),

Initiative 350 disproportionately impacted black schoolchildren; and although the initiative may have been framed in race-neutral terms, the Court determined -- based on the sequence of events, the initiative’s alteration of normal procedural. practices; and so on., (i.e., the Arlington Heights factors discussed above) -- that the initiative was enacted “because of’ and not “in spite of’ its adverse effect on black schoolchildren.

If this reading of Seattle is correct, and the facially race-neutral referendum being proposed by the union is simply subject to the Washington v. Davis test for intentional discrimination, then the Mayor will have real problems mounting a successful court challenge. After all, not only is the referendum written in non-racial terms, but the Mayor’s plan is also facially race-neutral.

The Mayor might argue, of course, that although written in race-neutral terms, his plan really benefits blacks, and that the union’s referendum is therefore an act of intentional discrimination designed to keep the City’s Fire Department predominately white. But given the fact that the referendum appears to uphold the very principles of “merit through testing” that the Court in Washington v. Davis found to be so persuasive, it is hard to imagine that a court in this case would be willing to find that the voters of Wazoo voted to uphold such principles “because of,” rather than “in spite of’ its effect on future black hiring (as a number of you pointed out, examining a referendum under Washington v. Davis also raises serious issues regarding whose intent we are suppose to examine). The fact that the current test being used appears to have been “validated” through the consent decree process further weakens the Mayor’s argument. Indeed, in light of the court’s acceptance of testing as a legitimate means to measure merit and upgrade the workforce (were dealing here only with Equal Protection doctrine, and not Title VII law), it is conceivable that a court would sooner find the Mayor’s effort to change the testing procedure to be an impermissible affirmative action program than it would strike down the referendum as an impermissible racial classification.

There is another, no doubt more controversial way to read Seattle. The argument would go something like this: Seattle recognizes that blacks are burdened not only by intentional racism, but also by facially neutral processes that nevertheless place blacks in a structurally subordinate position. Thus, anti-discrimination legislation of the type at issue in Hunter v. Erickson (in that case, a fair housing ordinance) is not the only type of legislation that is “racial” in nature; blacks may also seek to extract through the political process affirmative programs - like the voluntary busing program in Seattle - that may not be constitutionally required, but that nevertheless help alleviate structural inequality. Precisely because such affirmative programs are not constitutionally required (given the Court’s “negative charter of liberties” reading of the Constitution and theories of judicial restraint), a majority of voters may choose not to enact such programs, and may even choose to repeal those programs that the majority feels have outlived their usefulness. What the majority cannot do is to change the rules of the game so as to make it more difficult for blacks and other minorities to achieve such affirmative programs through the give and take of the democratic process - by resort, for example, to state-wide initiatives and referendums in which minority influence is lessened.

If a court were willing to accept such a reading of Seattle, then the Mayor might have a chance at defeating the referendum. The Mayor could argue that once you get beyond certain baseline constitutional requirements of fairness - i.e. no outright discrimination on the basis of race, gender, religion, sexual orientation, etc. -- there are no pre-political, non-racial, “legitimate” ways to select a tire department or determine “merit.” The Mayor’s plan is “racial” in the sense that it represents an affirmative effort to increase black representation on the police force without resorting to quotas or lowering standards of performance; at the same time, it is no more racial than is the union’s plan to maintain the status quo through a regime of written examinations. The union is free to debate the pros and cons of the Mayor’s plan in the public square; it can put pressure on the City Council to block the Mayor’s proposal, and can organize to vote the Mayor out of office. What it cannot do is shift decision-making over these racially- charged issues to the state level, where (we assume) blacks have less of political clout.

There are problems with this argument, of course, the most obvious being the one that was raised by the state in Seattle - namely, if the “rules” of democracy in a given state include the possibility of state-wide initiatives and referendums, and if the “rules” of democracy also envision the state imposing its sovereign will on local governments within its borders, then in what sense does the initiative in Seattle, or the referendum in our hypothetical, change the rules of the game? If states and their voters can’t decide, through democratic processes sanctioned by that state’s constitution, to take certain decisions that happen to touch on race out of the hands of localities, then is there any limit to the state legislation that might be potentially overturned? To cite just one example, how do we evaluate state legislation that places property tax caps on localities? Such caps prevent localities from raising taxes to fund public schools beyond a certain level without a majority vote, and presumably has a disproportionate impact on black populations that are both younger and more likely to rely on public, as opposed to private, education. Are they unconstitutional under Seattle?

The bottom line is that such an expansive view of Seattle would implicitly overturn the intent-based approach to evaluating racial issues embodied in Washington v. Davis. My personal guess is that the current Supreme Court would almost certainly shy away from such a reading of Seattle. Of course, we won’t have to guess on the Court’s position for long, since it is precisely these sorts of arguments that will come up in the current challenge to California’s Proposition 209, which bars state government from engaging in any form of affirmative action.

1 posted on 05/19/2009 7:10:23 AM PDT by ml/nj
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To: ml/nj

Law school exams are indeed usually open-book. If you can’t spot the issues, no amount of outside material will help you.

I wonder why so few classmates, students or others who knew Obama in the past have come forward to give interviews about their impressions of him?

2 posted on 05/19/2009 7:12:37 AM PDT by cvq3842
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To: ml/nj

No offense, but after graduating from law school I vowed to never read a law school exam again. I did scan it, however, and it looks legit ... just like the many I had to take in law school.

3 posted on 05/19/2009 7:16:40 AM PDT by dinoparty
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To: ml/nj

Mayor Dudley Duright?

All of the exam questions appear to deal with an issue connected with minority activism (race, gender preference), which I suppose one would expect to be the extent of Obama’s interest in “Constitutional” law.

4 posted on 05/19/2009 7:19:28 AM PDT by rightwingintelligentsia (Stop the wanton destruction of innocent squirrels!)
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To: cvq3842

I have wondered this same thing...Where are all his past school mates whether they are from elementary to law school??? Everyone seems to be off-radar or perhaps non-existent. Maybe the one actually got his law degree from a milk carton or a match book. Seems more in line with his finances back in his day.

5 posted on 05/19/2009 7:21:29 AM PDT by Rapunzel (Never forget Fallujah..S. Helvenston RIP.....Sarah...Sarah...Sarah loves America)
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To: cvq3842
"I wonder why so few classmates, students or others who knew Obama..."

I suspect they are either Fellow Travelers, or they have been "warned".

6 posted on 05/19/2009 7:30:07 AM PDT by ChicagahAl (Don't blame me. I voted for Sarah.)
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To: rightwingintelligentsia

“Constitutional Law” has very little to do with the Constitution and everything to do with what judges have ruled about the Constitution.

It’s a deconstructionist view of the document.

7 posted on 05/19/2009 7:32:32 AM PDT by MrB (Go Galt now, Bowman later)
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To: dinoparty
just like the many I had to take in law school

Really? Were your tests all about queers and schvatzas?


8 posted on 05/19/2009 7:33:06 AM PDT by ml/nj
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To: cvq3842

The State of WAZOO is about where Obama is taking us.

9 posted on 05/19/2009 7:33:43 AM PDT by PGR88
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To: ml/nj

Oh sure, no subject is taboo for liberal academics.

10 posted on 05/19/2009 7:40:16 AM PDT by dinoparty
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To: ChicagahAl; Rapunzel; cvq3842

Re: “I wonder why so few classmates, students or others who knew Obama...”

Wayne Allyn Root says, “I don’t know a single person at Columbia that knows him, and they all know me. I don’t have a classmate who ever knew Barack Obama at Columbia. Ever! ... Nobody recalls him. I’m not exaggerating, I’m not kidding.

Questioner: Were you the exact same class?

Root: Class of ‘83 political science, pre-law Columbia University. You don’t get more exact than that. Never met him in my life, don’t know anyone who ever met him. At the class reunion, our 20th reunion five years ago, 20th reunion, who was asked to be the speaker of the class? Me. No one ever heard of Barack! Who was he, and five years ago, nobody even knew who he was... the guy who writes the class notes, who’s kind of the, as we say in New York, the macha who knows everybody, has yet to find a person, a human who ever met him. Is that not strange? It’s very strange...

When asked about his undergraduate training at Columbia University, The New Times states that Obama “declined repeated requests to talk about his New York years, release his Columbia transcript or identify even a single fellow student, co-worker, roommate or friend from those years.”

Many of his classmates don’t remember Obama. He’s not in the yearbook. Columbia couldn’t find a picture of him at school.

What can be said with some certainty is that Mr. Obama lived off campus while at Columbia in 1981-83 and made few friends. Fox News contacted some 400 of his classmates and found no one who remembered him. He had transferred from Occidental College in California after his sophomore year because, he told the Boston Globe in 1990, “I was concerned with urban issues and I wanted to be around more black folks in big cities.”

11 posted on 05/19/2009 7:40:55 AM PDT by Beckwith (A "natural born citizen" -- two American citizen parents and born in the USA.)
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To: MrB

To be fair, Judges may take a deconstructionist view of the document, but many Con Law professors simply teach the cases as they were written. They can’t help it that the judges are kooks.

12 posted on 05/19/2009 7:42:12 AM PDT by dinoparty
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To: cvq3842
"I wonder why so few classmates, students or others who knew Obama in the past have come forward to give interviews about their impressions of him?"

Like his grades, the truth hurts the image. The 0ne is not a "brilliant" or scholarly man. Look at him speak off 'prompter. It is painful. Oh well, the presstitutes got away with it this time, tragically for the US...

13 posted on 05/19/2009 7:43:58 AM PDT by eureka! (Elections have consequences, boy howdy. *sigh*)
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To: dinoparty

Why teach from “cases” and not from the words of the authors?

This assumption is that law evolves instead of being based in a firm, unchanging foundation.

14 posted on 05/19/2009 7:45:00 AM PDT by MrB (Go Galt now, Bowman later)
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To: dinoparty

Me too, unless I am being pain to help a student prepare for an exam.

15 posted on 05/19/2009 7:47:43 AM PDT by Clump (the tree of liberty is withering like a stricken fig tree)
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To: eureka!
The 0ne is not a "brilliant" or scholarly man.

Look. I've probably been saying the same thing myself. But then this memo turns up. It doesn't seem to me to be something that could have been written by just anyone. Do you think Obama wrote this, or do you think he did not? Or do you think I'm too easily impressed?


16 posted on 05/19/2009 7:55:20 AM PDT by ml/nj
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To: ml/nj
"Leaving content aside, they seem to be quite well written"

Has anyone read both these and "Dreams from my Father"? Do these "well-written" essays shed any light on the provenance of that book? Recall that the quality and stylistic aspects of the book, compared with Obama's earlier literary efforts, caused many folks to question whether he'd really written it. In fact, certain themes (such as recurring nautical riffs) suggested Bill Ayers ghost-wrote "Dreams".

Any thoughts?
17 posted on 05/19/2009 7:56:28 AM PDT by RightOnTheLeftCoast (1st call: Abbas. 1st interview: Al Arabiya. 1st energy decision: halt drilling in UT. Arabs 1st!)
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To: Clump


It is very important to determine if this is real. It may be a setup: watch the right get all wound up about Obama’s law school examinations, only to find out they are fake.

Anyone good at doing verification?

Secondly, if they are real they show the horror that is law school, and the lawyerly view of the Constitution.

I have a good friend who is a lawyer and it took ten years of conversation and me asking questions like “exactly what part of the Constitution authorizes FedGov to give $20 billion to Africa to treat AIDS” for him to reluctantly admit that lawyers don’t know much about the Constitution.

(He’s a tax lawyer, and knows everything about tax law, however.)

18 posted on 05/19/2009 8:00:03 AM PDT by Jack Black
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To: MrB

Because the job of a lawyer is to represent his client ... if you do not know the current status of the caselaw, you will not be able to make an effective argument for your client, regardless of whether you agree or not with the cases.

19 posted on 05/19/2009 8:02:13 AM PDT by dinoparty
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To: Jack Black

I know it sounds strange, but for the purpose of representing clients as a lawyer, knowing the actual document is secondary to knowing what the judges say about the document. It is, after all, the judges that you need to convince, not the founding fathers in their graves.

20 posted on 05/19/2009 8:04:34 AM PDT by dinoparty
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