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ANSWERS TO PROBLEMS
1. In May, Patricia Allen left her car on the shoulder of a road in the city of Erehwon
after the car stopped running. A member of the Erehwon police dept. came upon the car
later that day and placed on it a sticker which stated that unless the car was moved, it
would be towed. After a week the car had not been removed, and the police department
authorized Baldwin Auto Wrecking Co. to tow it away and store it on its property. Allen
was told by a friend that her car was at Baldwin's. Allen asked Baldwin to allow her to
take possession of her car, but Baldwin refused to relinquish the car until the $70 towing
fee was paid. Allen could not afford to pay the fee and the car remained at Baldwin's for
six weeks. At that time, Baldwin requested the police department for a permit to dispose
of the automobile. After the police department tried unsuccessfully to telephone Allen, the
department issued the permit. In late July, Baldwin destroyed the automobile. Allen
brings an action against the city and Baldwin for damages for loss of the vehicle, arguing
that she was denied due process. Decision?
Answer: Due Process. Judgment for Allen. These facts raise the question of due process
under the Fourteenth Amendment. As the Appellate Court of Illinois stated in Valdez v.
City of Ottawa, 434 N.E. 2d 1192 (1982) upon which this problem is based:
Due process is not an inflexible standard and does not require a trial-type hearing in
every conceivable case of government impairment of private interest. Nonetheless, due
2. In 1967, large oil reserves were discovered in the Prudhoe Bay area of Alaska. As a
result, State revenues increased from $124 million in 1969 to $3.7 billion in 1981. In
1980, the State legislature enacted a dividend program that would distribute annually a
portion of these earnings to the State's adult residents. Under the plan, each citizen
eighteen years of age or older receives one unit for each year of residency subsequent to
1959, the year Alaska became a State. Crawford, a resident since 1978, brings suit
challenging the dividend distribution plan as violative of the equal protection guarantee.
Did the dividend program violate the Equal Protection Clause of the Fourteenth
Amendment? Explain.
Answer: Equal Protection. Decision for Crawford. When a state distributes benefits
unequally, the distinctions it makes are subject to scrutiny under the Equal Protection
Clause of the Fourteenth Amendment. Generally, a law will survive the scrutiny if the
distinction it makes rationally furthers a legitimate state purpose. The state advanced
three purposes justifying the distinctions made by the dividend program; (a) creation of a
financial incentive for individuals to establish and maintain residence in Alaska; (b)
3. Maryland enacted a statute prohibiting any producer or refiner of petroleum products
from operating retail service stations within the State. The statute also required that any
producer or refiner discontinue operating its company-owned retail service stations.
Approximately 3,800 retail service stations in Maryland sell more than twenty different
brands of gasoline. All of this gasoline is brought in from other states, as no petroleum
products are produced or refined in Maryland. Only 5 percent of the total number of
retailers are operated by a producer or refiner. Maryland enacted the statute because a
survey conducted by the State comptroller indicated that gasoline stations operated by
producers or refiners had received preferential treatment during periods of gasoline
shortage. Seven major producers and refiners bring an action challenging the statute on
the ground that it discriminated against interstate commerce in violation of the
Commerce Clause of the United States Constitution. Are they correct? Explain.
Answer: State Regulation of Commerce. No they are not correct. The Maryland statute is
constitutional. In Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978) the U.S.
Supreme Court stated:
Plainly, the Maryland statute does not discriminate against interstate goods, nor does it
favor local producers and refiners. Since Maryland's entire gasoline supply flows in
interstate commerce and since there are no local producers or refiners, such claims of
4. The Federal Aviation Act of 1958 provides that “The United States of America is
declared to possess and exercise complete and exclusive national sovereignty in the
airspace of the United States.” The city of Orion adopted an ordinance that makes it
unlawful for jet aircraft to take off from its airport between 11:00 P.M. of one day and
7:00 A.M. of the next day. Jordan Airlines, Inc., is adversely affected by this ordinance
and brings suit challenging it under the Supremacy Clause of the United States
Constitution as conflicting with the Federal Aviation Act or preempted by it. Is the
ordinance valid? Explain.
Answer: Federal Supremacy and Preemption. No. Decision for Jordan Airlines. The
Federal Aviation Act (FAA) of 1958, as amended by the Noise Control Act of 1972,
preempts the field. Any control of noise pollution must be consistent with the "highest
degree of safety." The FAA requires a delicate balance between safety and efficiency, and
the protection of the persons on the ground. The interdependence of these factors
requires a uniform and exclusive system of federal regulation if the congressional
5. The Public Service Commission of State X issued a regulation completely banning all
advertising that “promotes the use of electricity” by any electric utility company in State
X. The commission issued the regulation to conserve energy. Central Electric
Corporation of State X challenges the order in the State courts, arguing that the
commission has restrained commercial speech in violation of the First Amendment. Was
their freedom of speech unconstitutionally infringed? Explain.
Answer: Commercial Speech. Yes, Central Electric’s freedom of speech was infringed.
Decision for Central Electric Corporation. This problem is based upon Central Hudson
Gas and Electric Corporation v. Public Service Commission, 447 U.S. 557 (1980) in
which the Court concisely stated the test for commercial speech cases:
6. E—Z—Rest Motel is a motel with 216 rooms located in the center of a large city in
State Y. It is readily accessible from two interstate highways and three major State
highways. The motel solicits patronage from outside of State Y through various national
advertising media, including magazines of national circulation. It accepts convention
trade from outside State Y, and approximately 75 percent of its registered guests are from
out of State Y. An action under the Federal Civil Rights Act has been brought against E—
Z—Rest Motel alleging that the motel discriminates on the basis of race and color. The
motel contends that the statute cannot be applied to it because it is not engaged in
interstate commerce. Can the Federal government regulate this activity under the
Interstate Commerce Clause? Why?
Answer: Federal Commerce Power. Yes, the Federal government can regulate this activity.
Decision against the E-Z Rest Motel. This problem is based upon Heart of Atlanta Motel
v. United States, 379 U.S. 241 (1964) in which the court discussed the legislative history
of the Civil Rights Act of 1964:
While the Act as adopted carried no congressional findings the record of its passage
7. State Z enacted a Private Pension Benefits Protection Act requiring private employers
with 100 or more employees to pay a pension funding charge upon terminating a pension
plan or closing an office in State Z. Acme Steel Company closed its offices in State Z,
whereupon the State assessed the company $185,000 under the vesting provisions of the
act. Acme challenged the constitutionality of the Act under the Contract Clause (Article I,
Section 10) of the U.S. Constitution. Was the act constitutional? Explain.
8. A State statute empowered public school principals to suspend students for up to ten
days without any notice or hearing. A student who was suspended for ten days challenges
the constitutionality of his suspension on the grounds that he was denied due process.
Was due process denied? Explain
9. Iowa enacted a statute prohibiting the use of sixty-five-foot double trailer truck
combinations. All of the other midwestern and western states permit such trucks to be
used on their roads. Despite these restrictions, Iowa’s statute permits cities abutting the
state line to enact local ordinances adopting the length limitations of the adjoining state.
In cases in which a city has exercised this option, otherwise oversized trucks are
permitted within the city limits and in nearby commercial zones. Consolidated
Freightways is adversely affected by this statute and brings suit against Iowa, alleging
that the statute violates the Commerce Clause. The District Court found that the evidence
established that sixty-five -foot doubles were as safe as the shorter truck units. Does the
statute violate the Commerce Clause? Explain.
Answer: Commerce Clause. Yes. Decision for Consolidated Freightways. The U.S.
Supreme Court said in Kassel v. Consolidated Freightways Corporation, 450 U.S. 662
(1981) that because Iowa imposed this burden without any significant countervailing
10. Metropolitan Edison Company is a privately owned and operated Pennsylvania
corporation subject to extensive regulation by the Pennsylvania Public Utility
Commission. Under a provision of its general tariff filed with the commission, Edison
had the right to discontinue electric service to any customer on reasonable notice of
nonpayment of bills. Catherine Jackson had been receiving electricity from Metropolitan
Edison when her account was terminated because of her delinquency in payments.
Edison later opened a new account for her residence in the name of James Dodson,
another occupant of Jackson's residence. In August of the following year, Dodson moved
away and no further payments were made to the account. Finally, in October, Edison
disconnected Jackson's service without any prior notice. Jackson brought suit claiming
that her electric service could not be terminated without notice and a hearing. She
further argued that such action, allowed by a provision of Edison's tariff filed with the
commission, constituted “state action” depriving her of property in violation of the
Fourteenth Amendment's guarantee of due process of law. Should Edison’s actions be
considered state action? Explain.
Answer: Due Process. No, it is not state action. Decision for Metropolitan Edison
Company. In Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) the U.S. Supreme
Court stated that deprivations of property without due process by the state are prohibited
11. Miss Horowitz was admitted as an advanced medical student at the University of
Missouri-Kansas City. During her first year, several faculty members expressed
dissatisfaction with Miss Horowitz's clinical performance, noting that it was below that
of her peers, that she was erratic in attendance at her clinical sessions, and that she
lacked a critical concern for personal hygiene. Upon the recommendation of the school's
Council on Evaluation, she was advanced to her second and final year on a probationary
basis. After subsequent unfavorable reviews during her second year and a negative
evaluation of her performance by seven practicing physicians, the council recommended
that Miss Horowitz be dismissed from the school for her failure to meet academic
standards. The decision was approved by the dean and later affirmed by the provost after
an appeal by Miss Horowitz. She brought suit against the school's Board of Curators,
claiming that her dismissal violated her right to procedural due process under the
Fourteenth Amendment and deprived her of “liberty” by substantially impairing her
opportunities to continue her medical education or to return to employment in a
medically related field. The trial court found for the defendant, but the appellate court
reversed. The Board of Curators appealed. Is her claim correct? Explain?
Answer: Procedural Due Process. No. Judgment for the Board of Curators. Oral or written
notice and an opportunity for the student to present her side of the story at a "hearing" is
only required for dismissals or suspensions based on disciplinary grounds. In contrast, a
12. The McClungs own Ollie’s Barbecue, a restaurant located a few blocks from the
interstate highway in Birmingham, Alabama, with dining accommodations for whites
only and a take-out service for blacks. In the year preceding the passage of the Civil
Rights Act of 1964, the restaurant had purchased a substantial portion of the food it
served from outside the state. The restaurant has refused to serve blacks since its
original opening in 1927 and asserts that if it were required to serve blacks it would lose
much of its business. The McClungs sought a declaratory judgment to render
unconstitutional the application of the Civil Rights Act to their restaurant because their
admitted racial discrimination did not restrict or significantly impede interstate
commerce. Decision?
Answer: Commerce Clause. The Commerce Clause of the Constitution empowers Congress
to regulate interstate commerce and to make all laws necessary and proper for that
purpose. Even if a business’s activity is local it may be reached by Congress if the
activity directly or indirectly burdens or obstructs interstate commerce. Title II of the
13. Drug compounding is a process by which a pharmacist or doctor combines, mixes, or
alters ingredients to create a medication tailored to the needs of an individual patient.
Compounding is typically used to prepare medications that are not commercially
available, such as medication for a patient who is allergic to an ingredient in a
mass-produced product.
The Federal Food, Drug, and Cosmetic Act of 1938 (FDCA) regulates drug
manufacturing, marketing, and distribution, providing that no person may sell any new
drug unless approved by the Food and Drug Administration (FDA). The Food and Drug
Administration Modernization Act of 1997 (FDAMA), which amends the FDCA, exempts
compounded drugs from the FDCA’s requirements provided the drugs satisfy a number of
restrictions, including that the prescription must be “unsolicited,” and the provider
compounding the drug may “not advertise or promote the compounding of any particular
drug, class of drug, or type of drug.” The provider, however, may “advertise and promote
the compounding service.”
A group of licensed pharmacies that specialize in drug compounding challenged the
FDAMA’s requirement that they refrain from advertising and promoting their products if
they wish to continue compounding on the basis that it violates the Free Speech Clause of
the First Amendment. What test should the court apply in determining the validity of the
FDAMA.
Answer: First Amendment. The restricted speech is commercial speech. Central Hudson
articulated a test for determining whether a particular commercial speech regulation is
constitutionally permissible. Under that test a threshold matter is whether the commercial
ANSWERS TO “TAKING SIDES” PROBLEMS
Alabama was one of only sixteen states that permitted commercial hazardous waste
landfills. From 1985 through 1989, the tonnage of hazardous waste received per year
more than doubled. Of this, up to 90 percent of the hazardous waste was shipped in
from other states. In response, Alabama imposed a hazardous waste disposal fee of
$72 per ton on hazardous waste generated outside the state and disposed of at a
commercial facility in Alabama. The fee does not apply to such waste having a source
in Alabama. (This law imposes a fee of $97.60 per ton for hazardous waste generated
outside Alabama compared with a fee of $25.60 per ton for hazardous wastes
generated within Alabama.)
Chemical Waste Management, Inc., which operates a commercial hazardous waste
land disposal facility in Emelle, Alabama, filed suit asserting that the Alabama law
violated the Commerce Clause of the U.S. Constitution.
a. What arguments could Chemical Waste Management, Inc. make in support of its
claim that the statute is unconstitutional?
b. What arguments could Alabama make to defend the constitutionality of the statute?
c. Who should prevail? Explain.
ANSWER:
a. Chemical Waste Management, Inc. could argue that the Alabama statute imposes an
unfair burden on interstate commerce that is excessive compared to the local benefit
and that there are non-discriminatory alternatives available. It also could contend that
Alabama’s tax interfered with interstate commerce.
b. Alabama could argue that the additional fee of $72.00 served a legitimate local
purpose related to its citizens’ health and safety that could not be adequately served
