Question #1

89-year-old Mildred Rogers was at home when her 87-year-old neighbor and friend Martin Sellers came over for his morning visit. Martin has been experiencing bouts of senility now and then. On this day, Mildred and Martin got into an argument when Martin accused Mildred of sharing secrets with his wife. Martin’s wife has been dead for ten years and Mildred tried to convince Martin of this. Martin insisted that she is alive and that Mildred was a “damned liar.” Martin got madder and madder until, thoroughly distraught, he took hold of Mildred’s wheelchair, to which she was confined, pushed her to the front door, and then gave her a big push out the door. He yelled after her, “I hope you die, too, then!” and slammed the front door.

The driveway sloped down toward the street, which is a quiet side street. As Mildred gathered speed and headed straight for the street, she knew she would be able to steer the wheelchair into the grass and therefore only suffer a few bruises or broken bones. Instead, she thought to herself, “Well, I have had a good run. I have to go sometime, so now is as good a time as any.” She did not do anything to steer away from the street.

As her wheelchair entered the street, she was hit by a car. The driver of the car was 30-year-old Walter Knowles, who had just reached down to grab a CD off of the floor of his car when he looked up to see Mildred in the street. It was too late to stop. After Walter hit Mildred and saw how severely injured she was, he panicked and left her there as he drove off.
Mildred did not die immediately. If help had gotten to her within 10 minutes of Walter hitting her, she could have been saved. Instead, no one came along as she lay there and 15 minutes after she was hit, she died of her injuries.

The state has the following statutes:
1. When a homicide is committed by any kind of deliberate and premeditated killing, a person is guilty of murder in the first degree.

2. When a homicide is committed recklessly under circumstances manifesting extreme indifference to the value of human life, a person is guilty of murder in the second degree.

3. When a homicide is committed in a sudden passion or heat of blood caused by provocation sufficient to deprive an average person of his self-control and cool reflection, a person is guilty of voluntary manslaughter.

4. When a homicide is committed with recklessly, a person is guilty of reckless homicide.

5. When a homicide is committed negligently, a person is guilty of negligent homicide.

The police arrest Martin and Walter and charge them in the death of Mildred.
You are the prosecutor in the case. What charge or charges could you possibly bring against Martin and Walter (i.e., discuss all plausible charges)? What are likely to be the defense attorney’s arguments against these charges?

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Question #1

Michael Smith was canoeing down the Rifle River in Michigan with his wife and two children. About forty yards ahead of him, there was a group of people traveling down the river together. The group consisted of five canoes. Timothy Boomer was in one of the five canoes. Smith saw Boomer fall out of his canoe and into the river, at which point Boomer loudly uttered a stream of profanities, while slapping the river and throwing his hands into the air.
Kenneth Socia, a road patrol deputy for the Sheriff’s Department, who was on duty at the Rifle River that day, heard a loud commotion and vulgar language coming from approximately one-quarter mile up the river. Socia looked up and saw Boomer chasing a group of canoes, splashing water at them with his paddle, and repeatedly swearing at them.

The river around Smith and Boomer was crowded with families and children. Smith says that Boomer would have been able to see Smith’s two children, who were both under five years old. Socia issued Boomer a citation for violating the following Michigan statute:
Any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.
This statute was enacted in 1897. In the one hundred year-plus history of the statute, there are no published cases addressing the statute.
At his arraignment on the misdemeanor charge, Boomer moves to dismiss the charge. What arguments can he make in support of his motion? What arguments might the prosecution make in response?

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For QUESTION ONE and THREE ONLY, refer to the following list of state statutes for all substantive crimes. For criminal law defenses, however, refer to your own knowledge under both the common law and the Model Penal Code.

(A) A homicide which is intentionally perpetrated by any kind of premeditated and deliberated killing; or
(B) a killing which occurs in the perpetration of, or attempt to perpetrate, a felony.

Any murder which is committed recklessly under circumstances manifesting extreme indifference to the value of human life.


For QUESTION ONE and THREE ONLY, refer to the following list of state statutes for all substantive crimes. For criminal law defenses, however, refer to your own knowledge under both the common law and the Model Penal Code.
(A) A homicide perpetrated by any kind of willful, deliberate and premeditated killing; or

(B) a killing proximately caused in the perpetration of, or attempt to perpetrate, a felony.



For QUESTIONS ONE, TWO and THREE, you need only refer to the following list of state statutes for all substantive crimes. For criminal law defenses, however, refer to your own knowledge under both the common law and the Model Penal Code.
(A) A homicide perpetrated by any kind of willful, deliberate and premeditated killing; or

(B) a killing proximately caused in the perpetration of, or attempt to perpetrate, a felony.

Contracts Questions & Answers

1) Patricia’s employer fired her after only three months in the job, in breach of a twelve-month employment contract. Patricia is entitled to recover as damages

A. her salary for twelve months.
B. her salary for nine months.
C. her salary for nine months, less what she could have earned in another job had she made reasonable efforts to find another suitable job.
D. nothing, because employment contracts must provide for liquidated damages.

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Once the 1996 election was over, Bill and Hillary Clinton could abandon the thin veneer of devotion to the public good that they had assumed during the campaign. With their power secure, they felt free to return to the shameless advancement of their own interests and that of their close friends. Bill, of course, had enjoyed running for President much more than he enjoyed being President. Accordingly, he effectively delegated the task of running the country to Hillary, who was more qualified for the job anyway. This enabled Bill to pursue a variety of purely private projects.3


Old McDonald had a farm. And on this farm McDonald grew crops and raised the usual variety of merry critters. But McDonald was sick of work that made his back sore and decided to become a land speculator like everyone else. Fortunately for McDonald, his land was located just outside the city limits of New Babylon, the largest city in the State of Disarray. Because of New Babylon’s rapid growth in recent years, the McDonald farm was a prime prospect for real estate development. A simple ad McDonald placed in a local paper generated literally dozens of inquiries from parties interested in buying the farm. After negotiating by telephone with a number of developers of apartments, condominiums, single family homes, and shopping centers, McDonald came to the realization that, if you put twenty real estate developers in a room, they would be unlikely to have twenty dollars cash between them. So McDonald decided to enter more serious negotiations with the city of New Babylon, which had plentyof cash as a result of its 10% sales tax on nearly everything. McDonald guessed that his land was worth at least $400,000, so he decided he might as well ask the city (whose officials were known for their gullibility) for $500,000. On June 1, he hand-delivered a letter to the city of New Babylon in which he offered to sell his farm for $500,000 cash. The letter contained a proper legal description of the farm, and it specified a closing date of July 1 for payment of the price and delivery of a deed. It also contained the following paragraph: “This here is a real good deal, so I ain’t lowering my price and I ain’t holding the offer open long. In fact, you must accept by June 10 or this offer expires.”


Imagine, if you will, that it is now 1999 and you do not know how the 2000 Presidential Election will turn out. George W. Bush (“George W”), is still just the son of the former President and now a candidate for the Presidency in his own right. George W has been seeking the Republican nomination for President for months, and he has distinguished himself primarily as a campaign fundraiser. His only drawback, of course, is that he is utterly without knowledge of, or experience in, national or international politics. The latter fact was made painfully obvious in a recent press conference, in which George W was unable, in response to reporters’ questions, to name the leader of any foreign nation, any of the Justices of the Supreme Court of the United States, or any of the planets in our solar system. George W’s advisers suggested to him that his education might be somewhat deficient and further suggested he take a crash course in national and international affairs.


Imagine, if you will, that by February of 1998, Janet Reno had grown weary of her job as Attorney General of the United States. Faced with yet another subpoena from a Congressional committee investigating the Whitewater scandal and further demands for a special prosecutor to investigate the phone solicitations conducted by the Clinton campaign, Janet decided she had had enough of Bill and Hillary Clinton’s problems. She resigned from her post, and decided to pursue a career as an entrepreneur in the private sector. To that end, she leased a two-story commercial building in Encino, California. On the ground floor, she planned to open a celebrity theme restaurant called “Planet Janet.” Her hope was to follow the lead of the pioneering theme restaurants (e.g., Planet Hollywood, the Hard Rock Cafe, etc.) and serve low-grade junk food at dramatically inflated prices.

Her ambitions for the second floor were even less noble. She planned to open a gambling den to be known as “Reno’s Casino of Encino.” (Gambling had just been legalized in California, and, thanks to some of her more unsavory professional acquaintances, Janet had acquired sufficient expertise to operate a gaming establishment.)


The current Attorney General of the United States, John Ashcroft, is rapidly developing a reputation as one of the grumpiest and most humorless men ever to hold the office. Though it would not have seemed possible during the term of his predecessor, Ashcroft makes Janet Reno look like Jay Leno. Until recently, no one knew the source of Ashcroft’s generally foul disposition and demeanor. You are about to learn it.

Constitutional Law Questions & Answers

Questions 1-7 deal with the following situation: Congress, alarmed by several incidents in which individuals attempting to purchase items over the Internet were the victims of identity theft when their credit card information was hacked into, enacts the “Internet Commerce Promotion and Protection Act” (ICPPA). The statute reads as follows: Section: 1 : Findings: The Congress hereby finds that commerce on the Internet presents a new opportunity for economic growth, but that this growth can be realized only if potential customers can reasonably believe that Internet transactions are technologically safe and secure. The Congress also finds that Americans have the right to Internet transactions that are as secure as face-to-face transactions. Section: 2 : Definitions:
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Question #1

In the town of Retirement World, California, pet owners start reporting mysterious cuts on their dogs. Investigation leads to a quasi-Christian religious cult, the Church of the Blood of Christ (CBC). Further investigation leads the police to discover that the CBC has as a ritual, relatively minor in the religion’s dogma, something called the “leaching of the animals of Christ,” in which small pets are given a minor cut by exactly seven believers, and their blood ritually spilled to the ground. This discovery shocks the small retirement community, which consists of privately-owned land governed by a corporation, in which each resident owns shares proportionate to the size of his or her house lot. The town, in addition to home lots, has two main streets with storefronts, a post office and a county sheriff substation. The roads are privately owned, but link up to the state of California’s road system at either end of the town. A sign at the end of each of the main roads reads “Private P roperty: Residents, Invited Guests and Those on Official Business Only.” At the next meeting of the town’s Board of Directors, the Board enacts the following town ordinance:

“No cutting of live animals shall be allowed except in cases of pest destruction, animals under the care of a doctor, humane euthanasia, and hunting.”

1. In response to the ordinance, the CBC sues.

While the lawsuit is pending, the CBC refrains from performing the ritual described above, but instead, performs a mock-up of that ritual, in which stuffed animals are used along with red Kool-Aid to simulate blood. To increase the town’s awareness of their presence, the cult requests a parade permit to perform the mock-up ritual every Sunday afternoon for the next month. In response, the town’s Board enacts the following ordinance.

“No parades of more than five individuals will take place within the next six months, and such parades as are allowed must include only the marchers and no props of any types.”

2. The CBC amends its lawsuit to challenge this second ordinance.
What claims can the CBC make? How likely is it that they will prevail?

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Question #1

In late 2001 the trustees of the Louisiana State University consider whether to discontinue or revamp the school’s affirmative action policy. Excerpts of a memo to the trustees, detailing the history of the school’s admission policies with regard to race, is attached as Exhibit A to this exam. The trustees eventually decide on a new policy, attached as Exhibit B. The minutes of the Board of Trustees meeting at which the change was adopted is attached as Exhibit C.

1. In the spring of 2002, Alan Ackerman, a white student rejected for admission to the university for the Fall 2002 entering class sues, alleging that the new admissions policy violates the equal protection clause.

The new policy causes a great deal of consternation on campus. In the fall of 2002 Black Students United at LSU (BSU-LSU) begins a series of rallies, every Monday at 10AM, commemorating the day and time the trustees adopted the new policy. The first few of these rallies are non-violent, if noisy. However, starting in October the rallies take on an angry tone, after a group of counter-demonstrators begin attending the periphery of the rallies. The counter-demonstrators are also non-violent, but their presence adds tension to the rallies.

At the October 22 rally, Bob Bride, a professor in the Political Science department, gives a fiery speech, talking about the history of civil rights protests, and having as its theme the idea that minorities in the United States have gained what rights they have only as a result of forcing the white majority to confront the nation’s history of discrimination. Towards the end of his speech, with the crowd getting emotional, he says the following:

“Blacks have never won any rights without shoving the Constitution in whites’ faces. Compromise has been tried. It doesn’t work. Politeness has been tried. It doesn’t work. Patience has been tried. Our patience has been tried. Our patience is OVER!”

At that point the crowd begins chanting, “No more patience. Shove it!” One of the members of the crowd, a student at the law school, takes his constitutional law casebook out of his backpack and throws it at one of the counter-protesters, yelling “Here’s the Constitution! Shove it!” The counter-protester suffers a broken nose. The incident touches off a melee in which individuals on both sides are injured, several seriously.

2. Bride is arrested for inciting a riot. He claims the First Amendment as a defense.

After the riot the University president comes under extreme pressure to calm the situation. He issues the following directive:

Directive 2002-56: In order to minimize race-based misunderstandings and to promote tolerance and a spirit of inclusiveness, all student organizations shall adopt and enforce racial non-discrimination policies with regard to membership and attendance.

3. BSU-LSU, whose by-laws state that membership is restricted to African-Americans, sues to have Directive 2002-56 declared unconstitutional. Excerpts from the by-laws are reprinted at Exhibit D.

Analyze these constitutional claims. Which, if any, are likely to succeed? Why or why not?

August 28, 2001
From: Office of Research, Board of Trustees
To: The Trustees

Re: A History of LSU’s Admissions Policies With Regard to Race
. . . It is a sad but undeniable fact that LSU’s admissions policies have historically been influenced by race. From the school’s founding in 1848 until 1964, African-Americans were officially barred from attending LSU. In 1964 the prohibition was dropped, but the first African-Americans did not matriculate until 1966. Vestiges of official discrimination continued until 1972, when the last official arm of the university, the marching band, dropped its refusal to admit African-Americans.

. . . In 1973 the University began official outreach efforts to the African-American population, which culminated in the adoption of the current affirmative action policy, in 1977.

Press Release, dated September 5, 2001

Today the Louisiana State University announces a new undergraduate admissions policy. Previously the school had used a 1-100 scoring system for undergraduate admissions based on SAT scores and high school grades, with Louisiana residence, African-American heritage and one or more relatives as LSU alumni each providing an automatic 10 point increase in an applicant’s score. The new admissions policy, effective for applications for admission for the Fall 2002 entering class, is as follows:

“LSU seeks to admit an accomplished and talented entering class, representing the diversity of experiences both of Louisiana residents and Americans generally. Applicants will be scored on a 1-100 scale. Of the possible 100 points, 75 are based on SAT scores and high school grades – that is, a perfect SAT score and 4.0 GPA will lead an applicant to be scored at 75. The remaining 25 possible points will be scored based on the non-quantifiable criteria that, in the view of the admissions officer, will both ensure that the entering class contains students with special experiences and talents, and seek to compensate students who have had to surmount unusually large hurdles in the course of their education. Special experiences and talents include foreign travel or living experience, special artistic or athletic potential, military or significant public service, and unusual life experiences. Hurdles include, among other things, economic, cultural or social hardship and physical or emotional handicap.”


Excerpts of the Minutes of the Board of Trustees Meeting, September 1, 2001

Chairman Anderson: The next item on the agenda is the new admissions policy.

Trustee Baker: This policy is gibberish. What’s going on here?

Trustee Carter: You know good and well what it is. Race-based affirmative action is on its way out. The Supreme Court is clearly hostile to it. We’ve got to do something.

Trustee Davis: Well, what does “something” mean? Just reinserting a race preference under the smokescreen of “cultural or social hardship?”
Anderson: Not necessarily. That preference includes all kinds of things. Cajuns would probably get a preference, if they grew up in a Cajun community. So would poor people. God knows there are lots of poor whites in this state.
Davis: Well, yeah, but everyone knows that proportionally speaking, blacks are much poorer than whites in this state. A preference for “economic hardship” cases would catch a much higher proportion of all black applicants than of all white applicants, even if, on a raw numbers basis, there would be more poor white applicants than poor black ones.

Carter: We all know that. But we have to do something. We have a legacy of discrimination in this state. Even LSU itself. You all got the memo from the research office. And everyone knows how crummy the elementary and secondary schools are in black neighborhoods in this state.
Anderson: Yeah, and look, we’ve been thinking about revamping our admissions policy for years now, to be more nuanced about who we should give preferences to. You can’t look at the hardship criterion in isolation; there are lots of ways to get a preference here. And remember, the new policy never ever says that “race gets you extra points.” It might not. If you were a middle class black kid with no special experiences, you wouldn’t get the preference.

Baker: I am so not convinced. We stopped discriminating almost 40 years ago. We have nothing to do with the situation in the elementary and secondary schools. And one more thing: Why isn’t this admissions policy going to the University President first, for his formal input? Isn’t that the way we usually do things?

Carter: It is, you’re right. But we don’t have time. We need to decide this now, so we can change the application packets and train the admissions staff. There’s nothing nefarious about what we’re doing.
Anderson: Maybe it’s time we voted.

Whereupon, a vote was taken and the new policy enacted by a 3-1 vote.


Excerpts from the By-laws of BSU-LSU . . .
III. Membership: BSU-LSU seeks to ensure that African-American students at LSU can socialize and discuss issues of importance to the African-American community in an atmosphere that is comfortable and free of race-based pressure. BSU-LSU believes that a distinct African-American perspective on issues exists, and that development of that perspective requires discussions within the community. To that end, even though BSU�LSU intends to work with other progressive organizations on and off campus, and even though some social gatherings will be open to all members of the University community, membership in and attendance at BSU-LSU meetings is restricted to African-Americans. Any African-American student at LSU is eligible to be a member or attend any meeting.

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Question #1

Your client is Baker’s Books, a large general interest bookstore operating in Austin County in the State of Alabama. Among its broad variety of books, the store carries adult-oriented material. Specifically, it carries the following:
a. Books that describe, without pictures, children engaging in sexual activities.

b. Books that describe, in words and photographs, the history of sex in various world civilizations; these books include historical photos and photos of contemporary models demonstrating various methods of achieving orgasm adopted or prized by various cultures in history.

c. Books put out by a publisher called “Man’s World.” Man’s World publishes books that espouse the view that “women are put on this earth to give sexual pleasure to men.” These books consist of stories and pictures of men using women in various settings rife with sexual innuendo, with the woman being shown in degrading and humiliating positions or roles. The pictures sometimes show men and women in the nude, but the primary focus is on men’s stories about their female conquests, with pictures depicting fully clothed men “conquering” partially clothed women.

d. Books put out by a publisher called “Sexart.” Sexart publishes books consist of stories and pictures designed to titillate and arouse sexual interest; the name “Sexart” comes from their trademark practice of depicting ultimate sex acts taking place in front of a reproduction of a famous painting.

1. The local district attorney brings suit to enjoin the bookstore from carrying these books.

Meanwhile, a protest crowd gathers around the store. Colleen Collins, a local anti-pornography activist who organized the protest, gives a fiery speech in which she calls pornography “an abomination,” and states that “before we can be purified we must purge all abominations from our midst.” During the speech Collins’ assistants pass out a newsletter called The Divine Way which has an article alleging (incorrectly) that Bob Baker, the bookstore owner, is a pedophile and Satan worshipper. The newsletter got this information from a source on the Internet, which referred to someone named Bob Booker who was arrested for distributing pornography (not child pornography) the previous week in Oregon.

The crowd gets more and more excited as Collins continues to speak. At the climax of her speech, a member of the crowd throws a brick through the glass door of the store, exclaiming “Cast the demons out!” That action precipitates a melee in which members of the crowd forcibly enter the store and damage its contents.

2. Collins is arrested for inciting a riot.

3. Baker sues The Divine Way for libel.

Analyze these claims and their likely outcomes.

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Question #1

After several horrific instances of animal cruelty receive major press coverage, Congress passes and the President signs the “Federal Animal Cruelty Act.” The statute reads as follows:
Section 1: Findings
The Congress hereby finds the following:
1. Instances of cruelty towards cats and dogs erode the humane and moral foundations of America.

2. In particular, instances of such cruelty harden all Americans’ attitudes toward pets. In turn, this hardening attitude lessens the interest Americans have in having rewarding long-term relationships with their pets. This shift in turn reduces the demand for care and nourishment of cats and dogs, and ultimately reduces the demand for such animals generally.

3. The sale, care and nourishment of cats and dogs is a multi-billion dollar industry in the United States.

Section 2: Prohibition on Unnecessary Cruelty
No person shall inflict unnecessary cruelty on a
companion animal.

Section 3: Definitions
1. “Unnecessary cruelty” means any intentional infliction of physical harm that is not part of legitimate training or disciplining or humane euthanasia.
2. “Person” means any natural person, business association, or state or any instrumentality or arm of a state.
3. “Companion animal” means a dog or a cat, including dogs and cats that are used for work activities.

Section 4: Training; Penalties
Any person found to have engaged in unnecessary cruelty shall, on the first offense, be ordered to undergo appropriate animal care education, as to be determined by the judge. On the second offense, the judge, should the conditions warrant, shall order the offender to undergo an anger management class and/or to serve at a local humane society, but under no circumstances shall any second offender be made to spend more than 16 hours completing the required class or service. On third and subsequent offenses the offender shall be fined by an amount not to exceed $500 per occurrence. If the offender is not a natural person, the person subject to the animal care education, anger management or humane society service orders shall be the individual who actually ordered or committed the act of unnecessary cruelty; however, the non-natural person offender shall remain liable for any fines.

Section 5: Enforcement
Enforcement of this action shall be performed by county animal control authorities and county law enforcement, both of which shall promptly investigate any legitimate complaints of unnecessary cruelty.

In addition, any person witnessing or having proof of an act made illegal under this statute may bring suit to enforce this statute against any person who has violated the statute.

3. Suits alleging violations of this statute shall be brought in any state court that normally has jurisdiction to hear civil misdemeanors under that state’s law.

Subsequent Activity
After the statute is enacted, Peter Peta goes bike riding at Malibu Canyon State Park in California. He watches as a detachment of State Park Police officers conduct a drug sweep of a homeless encampment, using drug-sniffing dogs. After one of those dogs snarls at a homeless person, a police officer hits the dog with a nightstick.

Later in his ride, Peter notices Sylvester Stallone, a private individual, beating his Golden Retriever with a pair of boxing gloves.
The next day Peter files two lawsuits in Los Angeles County Superior Court. One is against Stallone, and the other is against both the California Park Police and the officer that hit the dog during the drug search.


Question 1: What argument(s) can Stallone make that the statute exceeds Congress’ Article I power? Explain why each argument would or would not succeed.

Question 2: Aside from the argument(s) Stallone can make, what additional argument(s) can the Park Police make that the statute cannot regulate how it treats its dogs? Explain why each argument would or would not succeed.
In answering these questions, you may assume the following:

a. Peter has standing to sue.
b. Police dogs come within the definition of “companion animals.”
c. The California State Park Police is an arm of the State of California.
d. California has not explicitly waived any sovereign immunity it has.
e. Under California law, civil misdemeanors are heard in Superior Court.

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Question #1

In response to increasing medical knowledge about the genetic source of obesity, Congress enacts and the President signs the “Obesity Rights Act” (ORA). The statute reads as follows:

Section: 1: Findings
The Congress hereby finds that the obese are subject to unreasonable and unfair discrimination in employment, given prejudice against and misunderstanding of, the condition of obesity. The Congress also recognizes that a desire to earn a profit may require a business to consider the physical attributes of certain members of its work force, and that this is a legitimate consideration.

The Congress also finds that obesity is not a legitimate tool for determining the capability of any person to contribute to an efficient workplace.

Section: 2: Discrimination

It is a violation of federal law for any employer to discriminate unreasonably against any person based on the person’s weight, except where weight is a bona-fide occupational requirement and where all reasonable attempts accommodate the person. have been made to

Section: 3: Definitions
“Employer” means any person, partnership, corporation or other business entity, or state or subunit of state government, that employs any person.

Section: 4: Relief
Any person may sue to enforce the provisions of this act in any federal court where venue is proper. A court may order damages, backpay, or other relief, as appropriate.

Section: 5 Regulations
(a) The U.S. Department of Labor is authorized to promulgate regulations to enforce these provisions. Violations of any valid regulation shall be considered violation of federal law.

1.Adams v. Baker

Albert Adams, a junior auditor for the State of Baker, is fired for being obese. He sues the state and the state’s head auditor under the law, requesting back pay, damages, and an injunction against the head state auditor forbidding him from firing or demoting Adams. What constitutional defenses could Baker make to the lawsuit and the requests for relief?

2.Confederation for the Prevention of Obesity Discrimination (CPOD) v. Department of Labor

Meanwhile the Department of Labor promulgates the following regulation:
Reg A: A “bona fide occupational requirement” is any requirement that, in the eyes of a reasonable employer, is reasonably necessary to prevent a loss of business or profit, taking into account reasonable customer preferences.

The Confederation believes that this regulation is far too lenient, and contravenes the intention of the statute. On the day the regulation is promulgated it sues the Department of Labor. Does it have standing?

3. Everett v. Fair Skies Airlines

Edwina Everett is a flight attendant for Fair Skies, based in Chicago, which is also the airline’s corporate headquarters. Edwina brings a lawsuit against Fair Skies, claiming a violation of Illinois employment law. Illinois employment law is all common law, and has evolved to the point where, according to one recent court decision, “any unreasonable discrimination which robs the people of the state of the talents of willing workers, is a violation of Illinois law.” Edwina sues Fair Skies in state court on the state law cause of action. What federal constitutional arguments would Fair Skies have in defense?
You may assume the following:

1. During its consideration of the ORA, Congress heard evidence that, as a psychological matter, people make assumptions about people’s self-control and discipline based in part on whether they are obese. Congress was also told that, in a public opinion poll, 67% of Americans said they would be uncomfortable working with an obese person.

2. Three individuals testified to Congress that they were fired from jobs, one from a job with New York state government, one with a large corporation and one with a small business, based solely on their obesity, despite achieving good performance reviews.

3. The CPOD was formed “to fight, in the legislatures, the courts, and in public opinion, all forms of discrimination and stereotypes about, and oppression of, obese persons.”

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Civil Procedure Questions & Answers

Question 1 – 5 are based on these facts:
Dan Yankee, a life-long resident of New York, comes to New Orleans for a Shriner’s convention. One night while imbibing in the Devil’s Brew, he tasted a local whiskey, Raging Cajun. Liking what he tasted, he bought a case of Raging Cajun to take back to New York. Upon his return to New York, Dan gave a bottle of Raging Cajun to his boss, Ben Bunkley, a citizen of New York. After work that evening, Bunkley decided to try the Raging Cajun and prepared himself a cocktail consisting of Raging Cajun and water. After three or four sips of his cocktail, Bunkley’s throat and stomach began having a severe burning sensation. He called his doctor who advised him to come to the hospital and bring the bottle of Raging Cajun with him. At the hospital it was determined that the bottle of Raging Cajun contained a high percent of acid. Bunkley was treated accordingly. He survived, but had to have part of his stomach removed and will talk in a law raspy voice the rest of his life. Bunkley’s doctor and hospital bills were in excess of $25,000.
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On January 1, 1999, a rock/rap artist called “BadBoy” (BB) released his first recording. Many of the selections on that CD contained graphic and violent lyrics, includingone song that glorified the activities of an urban gang, all of whose members have been convicted of killing three police officers in Detroit. The album received a lot of publicity and has become a nationwide best seller in its category. To promote sales, “Bad Boy” undertook a nationwide tour, in which he performed in twenty cities across the country.


On March 1, 2000, Pat Green, an entrepreneur who operates a mail order business out of her home in Pittsburgh, purchased one thousand (1000) shares of stockin High Flier, Inc. (HFI) at $55 per share after reading its prospectus at the local office of a stock brokerage firm. On that same day, Leslie Arrow, an artist living in Taos, New Mexico purchased 50 shares of HFI at that same price after reading an article about HFI in the local newspaper. HFI is a publicly held technology company whose stock is listed onthe NASDAQ exchange, has shareholders residing in all fifty states, and which is incorporated under the laws of Delaware. It is headquartered in the heart of “SiliconValley” . San Jose, California. It also maintains regional satellite offices in Denver, Houston, Chicago, and Boston, where it markets and services its products through a staff of ten employees at each satellite location. For the past twelve years, as required by the federal Securities Act, HFI submitted annual earnings reports to the Securities and Exchange Commission (SEC) with the understanding that these reports would be made available to the general public.In each of those twelve annual reports, HFI reported a 25%increase in net profits from the preceding year. These reports were prepared for HFI by Dewey, Cheatam & Howe,Inc. (DCH), an independent accounting firm that also conducted HFI’s annual audit. DCH is incorporated under the laws of Pennsylvania. It maintains large offices in LosAngeles, San Francisco, and San Diego, and employs a local representative in New York and Chicago.


Diamond Programs, Inc., entered into a contract on January 3, 2000, with Humanity Providers, Inc., underwhich Diamond agreed to manage and operate a hospice program located at Humanity’s elderly care facility in Cleveland, Ohio. The contract further provides that Diamond will provide, train and manage all employees working in the hospice, that all of these employees will be Ohio citizens, and that the hospice will serve only patient swho are Ohio citizens. Diamond is incorporated under the laws of Delaware. Although it manages and operates other hospice facilities in New York and Connecticut, the Humanity hospice is Diamond’s only operation in Ohio. All of Diamond’s operations, including the Humanity hospice in Cleveland, are overseen by Diamond executives and supervisory personnel operating out of an office located in Indianapolis, Indiana. Humanity Providers is incorporated under the laws of Ohio and operates a range of health-related facilities throughout Ohio. Its headquarters, which includes all of its executive offices, is located in Cleveland. On December 1, 2000, Diamond filed an action against Humanity in the federal district court for the District of Indiana. The complaint alleged that Humanity failed to make its contractually required monthly payments to Diamond and sought damages in the amount of $1 million.


The Noise (Noise) is a new wave musical group composed of five musicians, all of whom were born and raised, and continue to live, in Los Angeles, California. Noise recorded its first album, “Beautiful Music”, in a recording studio in New York City on January 1, 2001. The recording was distributed by Capitol Records, Inc., pursuant to a contract giving Capitol exclusive rights toproduce, market and distribute all of Noise’s recordings from 1999 until 2009. Capitol is incorporated under Delaware law and has its corporate headquarters, production and distribution facilities in Los Angeles,California. Capitol recordings are sold in music stores throughout the country. Capitol generates $35 million inannual sales of its recordings, with 20% of all salesoccurring in California and 25% of all sales occurring in New York.


Bio Dream, Inc. (BDI), a corporation incorporated under the laws of Delaware, specializes in the development and manufacture of pharmaceutical products. Over the past few years, it has invested heavily in genetic engineering and, on January 5, 2003, revealed to the world that the scientists in its laboratory in San Jose, California, had engineered a designer drug named Mindex that could slowdown the development of Alzheimer’s Disease. The press release, issued through its corporate headquarters in Los Angeles, California, also announced that BDI had entered into a partnership with Ace Pharmaceutical Enterprises(APE), the nation’s second largest pharmaceutical distributor, in which APE would be the exclusive worldwide distributor of Mindex. APE, a corporation incorporated under New York law, agreed to ship all Mindex from its central warehouse in Chicago to drug stores and other retail outlets throughout the U.S. and Canada.