con-law-II-post-mortem-spring-2008

con-law-II-post-mortem-spring-2008 - Exam Post-Mortem...

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Page 1 of 13 Exam Post-Mortem Constitutional Law II – Spring 2008 Professor Massey Below is a brief dissection of the examination. What follows is a repetition of each of the questions and a summary indication of the issues and the approach to be taken in handling those issues. This is not a model answer . The responses merely identify the principal issues, outline the analytical approach to those issues, and provide some feedback with respect to common errors or omissions. A model answer would analyze these issues thoroughly and persuasively in grammatically correct, well-organized, even elegant, prose. Some common errors were 1) attempting to deal with every conceivable issue, even when the issues were peripheral or irrelevant. Some of you belabored the obvious, to the detriment of space devoted to the real issues. The range of raw scores on this exam was 62 to 18. The median raw score was 36. Points reflect the accumulation of your recognition of issues and the quality of your analysis of those issues. PART ONE Answer ONLY ONE of Questions One and Two. Question One 1500 Word Limit The State of Marshall, a state of the United States, has enacted the following statute: “Any person who makes a false statement of fact concerning a candidate for elective office, with knowledge of its falsity or in reckless disregard of its truth or falsity, shall be imprisoned for six months for each such incident.” Bob White, a candidate for the Marshall State Senate, has declared repeatedly to the press that his opponent, incumbent Senator Mary Green, “does not care for the downtrodden. She has repeatedly voted to deny to welfare recipients any increase in their benefits.” In fact, although Senator Green voted once against such an increase, she has voted seven other times for an increase in welfare benefits. These facts were known to White at the time he made the statements about Green to the press. White has been charged with sixteen counts under the quoted statute, each count pertaining to a separate assertion that Green had repeatedly voted against increases in welfare benefits. White’s attorney has moved to dismiss the charges on the ground that the statute is unconstitutional on its face, and as applied to White. Please assess the issues thus presented and give your reasoned conclusion as to the likely disposition of these motions. [Fourteen states have statutes similar to the one in this question. The constitutional validity of the Ohio version was upheld in Pestrak v. Ohio Elections Comm’n , 926 F.2d 573 (6th Cir. 1991). The Washington Supreme Court struck down Washington’s version in Rickert v. Public Disclocure Comm’n , 161 Wn 2d 843 (2007).] The statute makes criminal false statements of fact uttered about a public figure if they
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Page 2 of 13 are made with knowledge of their falsity or in reckless disregard of their truth or falsity. The statute is directed at a subcategory of false statements of fact – false statements made in a political campaign and about a political candidate.
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con-law-II-post-mortem-spring-2008 - Exam Post-Mortem...

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