December 2001 9:00 a.m. to 5:00 p.m.

Autumn Quarter 2001 Prof. 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 eight hours, inclusive of travel time, to complete the exam. The exam is designed, however, to be completed in three hours. Feel free to use the extra hours as you wish. 3 . The exam consists of two Parts, presented in four pages. In grading the exam, your answer to Part One will count for three-fifths of your grade, and you answer to Part Two will count for two-fifths of your grade. You should therefore allocate your time accordingly. Each part contains multiple questions; you should make sure that you answer all the questions contained in each part, although the questions within each part are obviously interrelated and each part will be graded as a whole. 4. I assume that all exams will be written on a computer or word-processor. You must double-space, use a 12-point font, and provide for at least oneinch margins all the way around the page. Your answer must be no more than 2,200 words; I will stop reading after 2,200 words.

5 . Read each question carefully and think before you write. Please do not feel obliged to make use of the maximum number of words in formulating your answers. Precision and imagination, rather than volume, are what I am looking for. Good luck, and have a fine holiday.

Constitutional Law III - Fall 2001 - Final Examination

Part One (One and one-half hours) On January 11, 2002, a renewed wave of terrorist attacks begins in major cities across the country. Specifically, a deadly airborne (but non-contagious) chemical toxin called rioxin is released into the ventilation systems of high-rises and shopping malls throughout the east and west coasts. Trucks containing the hazardous material are purposely crashed inside major tunnels. Rioxin is released throughout major subway lines, and letters and parcels contaminated with the material are discovered throughout the postal system. In the first month of these attacks, an estimated 50,000 people are killed. An additional 500,000 people are infected with rioxin, and are inundating hospitals throughout the country seeking treatment. As in the case of anthrax, persons infected by the rioxin spore can be effectively treated - in the case of rioxin, with an antibiotic called Curasin - so long as they receive the antibiotic within 36 hours of exposure to toxin. Moreover, the same company that manufactures Curasin has announced the development of a rioxin vaccine that, once administered, protects the person vaccinated from the most serious forms of rioxin infection for a ten-year period. The vaccine appears to be highly effective for all segments of the population. There are two significant problems, however, with implementing an immediate vaccination program for the entire U.S. population. First, because the vaccine is new and because it is both expensive and time-consuming to produce, there are currently only 5 million doses of the vaccine available. Despite the intention of the federal government to drastically ramp up production of the vaccine, it is anticipated that for at least the next year, no more than 10 million doses of the vaccine can be produced every month. The upshot is that, optimistically, only 40 to 50 percent of the United State’s 270 million or so residents can be effectively vaccinated within the year. Second, it appears that not all populations are similarly vulnerable to the rioxin spore. For reasons that scientists cannot yet fully explain, blacks are 15 percent (1.15 times) more likely to die from similar levels of rioxin exposure than are whites. Latinos also seem to have a somewhat higher mortality rate than whites, although given the variation in racial make-up within the latino population, the evidence with respect to their enhanced vulnerability is less conclusive. There is very preliminary and hotly debated evidence that slight genetic variations between blacks and whites may account for the different mortality rates between blacks and whites exposed to rioxin. Other experts attribute the difference solely to the preexisting disparities in the health of blacks and whites, disparities that themselves are largely attributable to such socio-economic, environmental and behavioral factors as higher rates of poverty, smoking, obesity and hypertension among black populations. Differences in mortality rates exist between men and women as well. It appears that women are 18 percent (1.18 times) more likely to die from similar levels of rioxin


Constitutional Law III - Fall 2001 - Final Examination exposure than are men. Experts attribute this difference primarily to the differences in average body mass between men and women, an explanation that appears consistent with the fact that children under the age of 13 are 25 percent (1.25 times) more vulnerable to death from similar levels of rioxin exposure than are adults. The elderly are also more vulnerable to rioxin exposure than the general population, although the differences between old persons and young persons appear to correspond directly to the general, preexposure, health of the individual involved. In light of this on-going crisis, the White House, in consultation with the Center for Disease Control (the CDC), has decided to develop a strict protocol for dispensing the Curasin vaccine. The draft protocol is as follows: 1) The CDC’s first priority will be to vaccinate all children under the age of 13, starting with those children living in densely population metropolitan areas that so far have been the primary focus of terrorist attacks, and fanning outward to children living in less populated, rural areas. The CDC’s second priority will be to vaccinate all adult women under the age 2) of 50, again starting with women living in densely populated areas and fanning outward to women living in less populated, rural areas. 3) The CDC’s third priority will be to vaccinate all adult men under the age of 50, with the same geographical prioritization. 4) All remaining adult U.S. citizens will then be vaccinated, starting with 50. year-old adults and advancing progressively up the age ladder. 5) Only after all U.S. citizens have been vaccinated will the CDC vaccinate legal resident non-citizens, using the same demographic protocol as has been developed for U.S. citizens. Illegal immigrants will receive the vaccine only after all other segments of the population have been immunized and supplies of the vaccine have stabilized. 6) Throughout the administration of this vaccination protocol, the Curasin antibiotic (of which there is an ample supply) will continue to be made available to all persons exposed to rioxin based solely on the judgment of onthe-scene medical personnel, and without regard to age, gender, geography, or citizenship. White House Counsel has already advised the President that -- given the magnitude of the emergency and the U.S. Government’s Declaration of War on the terrorist rings carrying out the attacks - the Supreme Court won’t dare to find the proposed protocol unconstitutional. Nevertheless, the President recognizes the potential volatility of the issue, and wants to assure himself, Congress, and the public at large that his proposal conforms to constitutional norms. You, the Assistant to White House Counsel, are therefore asked to prepare a memorandum for the President, to be presented to him this afternoon. Specifically, the President wants to know whether any of the provisions of the proposed protocol violate the Equal Protection Clause of the Fourteenth Amendment (recall that, through a process of reverse incorporation, the Equal Protection Clause applies to the federal government as


Constitutional Law III - Fall 2001 - Final Examination well as the states). In framing your response, you may (and probably should) devote more attention to some classifications/issues presented by the protocol than you do to others. Please make sure, however, to support all conclusions with reasoning and, where possible, case law. In addition, please make sure to examine both sides of any argument you make, and feel free to suggest changes to the protocol that will cure it of potential constitutional problems. Part Two (One hour) After five years of marriage, Maria, a corporate attorney, and Arnold, an international financier, have decided it’s time to conceive their first child. It is not an easy decision for them. Both have high-octane careers that take them traveling throughout the world, and both passionately engage in (and excel at) a variety of athletic, intellectual and artistic pursuits: Maria is a former Olympic skier and an accomplished pianist, while Arnold is a world-class triathelete and chess master. In light of the sacrifices involved in rearing a child, both Maria and Arnold agree that they should optimize their outcomes with the aid of technology. Specifically, they have been reading up on recent advances in biogenetics that now permit parents with sufficient financial means to “design” their babies in advance. Not only is it possible to screen fertilized eggs so as to select the sex of the child and weed out any embryos containing congenital diseases, but parents can now also work with their geneticist to maximize the chances of producing babies of a certain hair-color and size. Moreover, it is anticipated that within the next five years, scientists will even be capable of isolating the genetic sources of such characteristics as mathematical aptitude or athletic prowess, which will then be available on the prospective parents’ menu of choices. After performing their due diligence, Maria and Arnold have identified Bionetics, a French multinational corporation that just recently went public, as a leader in the field of baby design. After consultation with Bionetics representatives and extensive discussion of the genetic characteristics they want in their offspring, they are prepared to pull the trigger on the deal. There is only one snag: it appears that Congress, led by former televangelist and current U.S. Senator James Fullsome, has just passed a law, titled the Prevention of Genetic Abuse Act (PGAA), which prohibits all genetic engineering and screening of embryos in the United States -- including engineering and screening for purposes of sexselection and the detection of potential genetic defects in the embryo. The text of the PGAA asserts three primary concerns as justification for the statute. First, although the genetic procedures that have been banned in the United States are now common-place in Europe, and the resulting genetically-engineered and/or screened babies appear perfectly healthy, the technology involved is far too new for scientists to draw meaningful conclusions with respect to the long-term health implications for the resulting babies. Consequently, the PGAA maintains that the ban is necessary to protect the health, safety and welfare of the general public, and facilitate


Constitutional Law III - Fall 2001 - Final Examination further study regarding the potential health risks involved for genetically engineered children. Second, the PGAA maintains that, given the growing demand for genetic engineering services and the high costs involved in the effective genetic screening and modification of embryos, such procedures are sure to invite unscrupulous and unqualified service providers into the industry, with a correspondingly high incidence of consumer fraud. Moreover, given the still imprecise nature of even the most effective screening and modification techniques, the commercialization of the technology is sure to invite a floodgate of litigation between genetic engineering firms and parents who end up disappointed in the outcomes of genetic engineering services. Third, the PGAA maintains that genetic engineering “debases the miracle of life” by encouraging a view that some human beings are preferable to others. According to the statute, the state has a legitimate interest in preventing the spread and acceptance by the general public of a “culture of eugenics.” During legislative debates on the bill, however, Senator Fullsome repeated his assertion that any form of genetic screening or engineering was “in violation of both nature’s mandates and God’s law.” On the other hand, the legislative history of the PGAA also indicates that while much of the testimony in support of this “moral and ethical” interest was voiced by religious leaders and organizations, specific concerns regarding the dangers of genetic sex-selection were also raised by some women’s organizations. Indeed, evidence from outside the United States indicates that where genetic engineering is utilized for purposes of sex-selection, male children are selected over female children by a two-to-one margin. Maria and Arnold are incensed by the PGAA. Although they can afford to fly to Europe to take advantage of Biogenic’s facilities there, it will involved significant disruption of their already tight schedules. Moreover, Maria and Arnold are fierce libertarians, and see no reason why the government should be intruding on such highly personal decisions. They therefore approach the national executive director of the ACLU, and indicate that they are willing to finance a test case (their own) challenging the constitutionality of the PGAA if the ACLU is willing to take the case. The executive director tells Maria and Arnold that she will consider it, and asks you, her trusted staff attorney, to prepare a brief memo examining the possible constitutional claims available to Maria and Arnold under the Due Process Clause of the Fifth Amendment (again, remember that through the process of “reverse incorporation,” the constitutional requirements of qua1 protection and substantive due process embodied in the Fourteenth Amendment apply to the federal government by way of the Fifth Amendment). In preparing your analysis, make sure to examine both the strengths and weaknesses of any possible claims. Moreover, please provide your boss a strategic analysis of how a ruling in this area might affect the U.S. Supreme Court’s approach to such existing constitutional rights like abortion. END OF EXAMINATION


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