2020 PENN STATE LAW REVIEW WRITE-ON COMPETITION

GRADING RUBRIC
(100 POSSIBLE POINTS)
DUE DATE: WEDNESDAY, JUNE 24TH AT 5 PM

NOTE: Students should not go outside of the materials provided. If you are concerned
that a student went outside the materials provided, make a note in the Excel sheet used
for grading.

NOTE: Please try to avoid looking at Author/Last Modified. I know some students were
unable to delete the Last Modified Parts and some had issues removing the Author part as
well (especially I think those with the newest version of Word).

NOTE: While students are restricted to only use sources provided on Canvas and listed
below, you might see them use/cite other sources mentioned within a source provided on
Canvas. For example, Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc. was
cited in Am. Council of Life Insurers v. D.C. Health Benefit Exch. Auth., and not provided
in Canvas, but students may refer to it in their analysis. Additionally, students may refer
to legislative history discussed in the cases. Students are to refer to a source that was not
provided in Canvas but was found within a source provided in Canvas by indicating
where they found this source (so they would want to mention, for example, American
Council of Life Insurers citing Empress Casino). If you encounter a citation or reference
to a source that was not uploaded to Canvas, and the student has not cited the Canvas
source in which the cited source was found, please use the Ctl+F function to ensure the
source is within one of the Canvas sources. If you still can’t find it, please indicate it on
the spreadsheet.

THIS RUBRIC IS DIVIDED INTO TWO PARTS. PART I GIVES

SPECIFIC MANDATES ON HOW POINTS SHOULD BE AWARDED.
PART II PROVIDES A SUMMARY OF THE SOURCES AND
POTENTIAL ARGUMENTS.

CASENOTE NUMBER: ____________

CASENOTE SCORE: ____________

PART I: OVERALL GRADING RUBRIC

GROUNDS FOR DISQUALIFICATION

1. A student who fails to adhere to either (a) or (b) below must be disqualified from the
competition (in other words, a student whose Casenote is shorter then 5 pages or
longer than 8 pages OR a student who fails to use all of the sources, must be
disqualified)
a. Is the casenote no longer than eight (8) pages and no shorter than five (5)
pages?
b. Did the writer use all of the source materials that were provided?
i. Sources provided are:
1. CONG. BUDGET OFFICE, SPENDING AND FUNDING FOR
HIGHWAYS PAGE (Jan. 2011).
2. C. Brian Cassidy & Brian O’Reilly, The Road Ahead, 79 TEX.
B.J. 528, PAGE (July 2016).
3. 23 U.S.C.A. § 101 (West 2020) OR 23 U.S.C. § 101 (2020).
4. 23 U.S.C.A. § 129 (West 2020) OR 23 U.S.C. § 129 (2020).
5. 23 U.S.C.A. § 301 (West 2020) OR 23 U.S.C. § 301 (2020).
6. 49 C.F.R. § 390 (2001) OR 66 Fed. Reg. 2766 (to be codified
49 C.F.R. pt. 390).
7. Am. Council of Life Insurers v. D.C. Health Benefit Exch.
Auth., 815 F.3d 17, PAGE (D.C. Cir. 2016).
8. Am. Trucking Ass’ns, Inc. v. Alviti, 944 F.3d 45, PAGE (1st
Cir. 2019).
9. Sands v. Manistee River Imp. Co., 8 S. Ct. 113, PAGE (1887).
10. Schneider Transp., Inc. v. Cattanach, 657 F.2d 128, PAGE (7th
Cir. 1981).
MECHANICS
1. Proper Citation Form: 10 points possible.
a. Has the writer conformed all citations and text to the Bluebook (20th edition)?
b. Has the writer used short citation forms properly?
C. Has the writer used appropriate abbreviations in the appropriate places?
D. Are the citations complete in that they contain essential components, e.g.,
page numbers?
e. Has the writer used the correct signals where they are appropriate?
2. Compliance with the Rules of the Competition: A student that complies with these
requirements receives no additional points.  However, if a student does not comply
with any of these requirements, the student will not receive any of the 10 points from
the Mechanics section (therefore, even if all 5 provisions from Mechanics Part A are
satisfied, if one of these following provisions in Mechanics Part B is not met, the
student will not receive any of the 10 points from the Mechanics Section).
a. Has the writer used Microsoft Word to create the document?
b. Does the writer use 1-inch top, bottom, left, and right margins?
c. Does the writer use double spacing in the text of his/her casenote?
 d. Does the writer use single spacing within footnotes and double spacing
between footnotes?
e. Has the writer used Courier New 12 point or a font producing 10 characters
per inch both in the text and the footnotes of the casenote?
f. Has the writer placed page numbers at the bottom right hand corner of every
page? Has the writer used footnotes rather than endnotes?

Mechanics TOTAL = ____/10

STYLE AND ORGANIZATION

1. 40 points possible
a. Style: subtotal = ____/20
i. Has the write used proper grammar?
ii. Has the writer used correct spelling?
iii. Has the write used correct punctuation?
iv. Does the writer use effective transitions?
v. Does the writer present information in a concise manner?
vi. Does the writer write with clarity?
vii. Does the writer avoid redundancy?
viii. Does the writer paraphrase the source materials in his/her own words
and avoid over-quoting?
b. Organization: subtotal = ____/20
i. Does the casenote contain the following essential components?
1. Introduction
2. Analysis
3. Conclusion
4. Title
ii. Does the introduction provide a brief synopsis of the fact pattern and
the issues to be discussed in the casenote?
iii. Does the conclusion succinctly summarize the issues discussed in the
foregoing analysis?
iv. Do the conclusions drawn by the writer follow logically from the
foregoing analysis?
v. Has the writer presented all of his/her ideas in a logical sequence?
vi. Do the writer’s thoughts “flow” from paragraph to paragraph?

Style and Organization TOTAL = ____/40

USE OF AUTHORITY
1. 15 points possible
a. Three Components:
i. Has the writer demonstrated an understanding of the content of the
casenote materials?
ii. Has the writer supported his/her ideas with authority?
 iii. Has the writer provided relevant, useful, and meaningful materials in
footnotes?

Use of Authority TOTAL = ____/15

ANALYSIS
1. 35 points possible
a. Five Components:
i. Has the writer thoroughly grasped the subject matter?
ii. Has the writer discussed the relevant issues?
iii. Has the writer successfully analyzed the impact of the issue in relation
to past law and future ramifications?
iv. Has the writer provided insightful and interesting comments regarding
the possible resolution of the issue?
v. Does the casenote have an effective conclusion?

Analysis TOTAL = ____/35

POINTS TOTAL = _____/100

PART II: SUMMARY OF SOURCES AND POTENTIAL ARGUMENTS

I do not expect you to read every source used in the competition. The following section
will summarize the substantive law and arguments that a competitor could make based
on whether they determine that the legislation from Nittany creates a tax or a toll. Please
note that Sections I and II of my outline are the same, regardless of whether the student
argues that Nittany created a tax or a toll. I anticipate students using these sources
similarly, regardless of which side they argue.

The use of every rule or argument is neither required nor expected. Students do not need
to follow my outline to receive points for their analysis. Ultimately there is no right
answer. Valid arguments can be made in support of both rulings. What matters is a
thoughtful analysis and a firm grasp of the legal concepts that lead to that conclusion.

Nittany’s legislation creates a TOLL

I. General definitions and background

I anticipate that students will mostly use these sources to provide definitions and to give
general background information.
 23 U.S.C. § 101
o This is the definitions and declaration of policy section of Title 23 of the
United States Code.
 o Students can use a variety of definitions from this section but should, at a
minimum, include a definition of “highway” or “Federal-aid highway” as
it relates to State Route 29, where Nittany has proposed to collect tolls to
fund a rehabilitation project.
 49 CFR 390
o Defines “commercial motor vehicle” as a vehicle used on a highway in
interstate commerce weighing over 10,001 pounds, designed to transport
more than 8 passengers for compensation, used to transport 15 passengers
not for compensation, OR used to transport hazardous materials.
 CBO Spending and Funding for Highways
o State and local governments are better suited to oversee highway projects
that are concentrated locally rather than accruing nationally.
o Congress determines how much federal money each state receives for
highways through a formulaic approach and through appropriations for
specific projects.
o Federal government’s portion of highway transportation funds are
financed mostly through taxes, but the taxes are insufficient to fully fund
the amount of federal highway spending. Because of the insufficiency of
taxation, the Treasury’s general fund has been used to finance projects.
o User fees are one way to raise revenues and would charge users according
to the marginal costs of their use. Even though truck travel represents less
than 10% of miles traveled, trucks do between 5 and 55 cents per mile of
pavement damage, depending on the weight of the truck, the number of
axels, and the distribution of weight. Passenger cars are not without their
impact, though, as passenger vehicles account for more than 90% of
vehicle-miles travelled.

II. The difference between taxes and tolls

 The Road Ahead by C. Brian Cassidy & Brian O’Reilly
o Tolls (or user fees) are “voluntary payments for access to facilities or
services, which are generally viewed as more equitable given their
noncompulsory nature.” Taxes are payments “compelled by the
government and invite[] significant political resistance.”
o Sets out a three-part test to determine whether a fee charged is a toll or a
tax
 “Is the particular government service for which the fee is collected
something that benefits the party paying the fee in a manner that is
not shared by other members of society?”
 “Users of toll roads benefit from decreased travel time,
decreased congestion, and often a more direct route to their
destination.”
 “Is the fee paid by choice?”
 “When both tolled and non-tolled alternatives are available,
motorists have a clear choice of whether or not to pay to
use a toll road and receive its benefits.”
  “Is the purpose of the fee to compensate the governmental entity
providing the services for its expenses (and not simply to raise
revenue for general purposes)?”
 Sands v. Manistee River Imperial Company  allowed the State of Michigan to
collect tolls on waterways to raise funds for improvements on those same
waterways
o “There is no analogy between the imposition of taxes and the levying of
tolls for improvement of highways”
 “Taxes are levied for the support of government, and their amount
is regulated by necessities. Tolls are the compensation for the use
of another’s property, or of improvements made by him; and their
amount is determined by the cost of the property, or of the
improvements, and considerations of the return which such values
or expenditures should yield.”
o The legislature most often prescribes that tolls should be charged, but it
leaves the fixing of the rates to officers or boards with expertise
 Schneider Transport v. Cattanach  holding that registration fees for trucks are
taxes because they are imposed for revenue-raising purposes
o “[T]he registration fees are imposed for revenue-raising purposes, a
characteristic of any tax.”
 The registration fees are also deposited into the state transportation
fund, which is a general fund, further showing that this is a tax
 American Council of Life Insurers v. DC Health Benefit Exchange Authority 
labeling an increased payment for insurance a tax because the plaintiffs did not
receive a benefit from the increased payment
o “[T]he key question is whether a charge raises revenue merely to cover the
cost of offering a service to the payers of the fee (including financing
regulatory systems applicable to them), or whether it also raises revenue
for purposes that aren’t especially beneficial or useful to the payers, or
required for pursuit of their businesses.”
o “[T]he hallmark of a fee is at least a rough match between the sum paid
and the (broadly defined) benefit provided, as seen from the payers’
perspective.”
o Three factors to draw the tax-fee distinction
 “[A] charge is more likely a tax if levied by the legislature than if
imposed by an administrative agency.”
 “[T]he broader the population on which the charge falls, the more
likely it is to be considered a tax.”
 “[T]he wider the use of the revenue raised by the charge, and the
more it ‘benefits the general public,’ the more likely the charge is a
tax”
 American Trucking Associations v. Alviti  holding that a fee collected only on
truckers and placed in a special fund is a toll and not a tax
o Tolls are not taxes, as noted in Thomas Cooley’s treatise, The Law of
Taxation
  “Tolls are not taxes. A tax is a demand of sovereignty; a toll is a
demand of proprietorship.”
o Not “all collections of substantial revenues by a state are taxes,” so the
broad purpose of a statute does not always resolve whether a fee is a tax or
a toll
o The funds raised by collecting fees on bridges are not part of a general
fund and instead are expended only for highway and bridge maintenance.
As such, the fees look more like tolls than taxes.
o Quoting the 1st Circuit’s decision in San Juan Cellular Telephone
 “[A] ‘classic tax’ is imposed by a legislature upon many, or all
citizens. It raises money, contributed to a general fund and spent
for the benefit of the entire community. A ‘classic regulatory fee,’
on the other hand, is imposed by an agency upon those subject to
its regulation.”
 To determine if something is a tax or a toll, must ask “whether it
provides a general benefit to the public of a sort often financed by
a general tax, or whether it provides more narrow benefits to
regulated companies or defrays the agency’s costs of regulation.”
 Creates a three-factor test, but this Court looks at the test as not
exhaustive and providing flexible guidance
 “(1) the nature of the entity imposing the exaction; (2) the
scope of the population subject to the exaction; and (3)
whether the revenues from the exaction are expended for
general public purposes, of a sort often financed by a
general tax, or whether the revenues provide more narrow
benefits to regulated individuals and entities and serve to
defray the agency’s cost of regulation.”

III. Why Nittany’s legislation creates a toll

 Sands v. Manistee River makes it clear that “[t]here is no analogy between the
imposition of taxes and the levying of tolls for improvement of highways”
o Although Sands dealt with waterways, the principle still applies to
highways
 Even if we ignore Sands v. Manistee River and adopt the test set forth in either
American Council of Life Insurers or American Trucking Associations, this is still
a toll
o Although the charge was levied by the legislature, it is unclear whether the
legislature imposed a flat tax on trucks or whether it has been left to an
administrative agency to decide this
o The charge falls on a fairly narrow population, as it falls only on
commercial motor carriers, which represent less than 10% of miles
travelled (CBO Spending and Funding for Highways)
o The revenue raised by the charge is not for a general purpose, like in
Schneider Transport v. Cattanach, because it is going specifically to the
State Route 29 project and does not have any indication of going to
 another project. Even though the money is being placed in the general
transportation fund, it is earmarked for a specific purpose.
 American Trucking Associations also cautioned that the broad
purpose of a statute (such as revenue raising) is not indicative of
whether a fee is a tax or a toll because most statutes have a revenue
raising function. Instead, should look at whether the revenues
provide a benefit to the regulated individuals. Here, it is quite clear
that truck drivers will benefit from ensuring the safety of State
Route 29. Without safe roads to drive on, the truck drivers would
add 2 hours to their trips to Buckeye, Nittany’s largest trading
partner. Additionally, trucks do between 5 and 55 cents per mile of
pavement damage (CBO Spending and Funding for Highways), so
it only makes sense that the vehicles that the vehicles that do the
most damage to the roads are the ones that should be responsible
for paying for their rehabilitation.
 It is a better policy to allow the states to collect tolls to fund highway spending
because it reduces the amount of money that has to be taken from the Treasury’s
general fund, which has been used to finance projects
o If states cannot collect tolls like this, especially on the vehicles that do the
most damage to the roads, then states have no other option other than to
impose taxes or to wait for the Federal government to fund projects

III. Why Nittany’s legislation creates a tax

 Although Sands v. Manistee River states that “[t]here is no analogy between the
imposition of taxes and the levying of tolls for improvement of highways,” this
rather clear distinction made by the Supreme Court in the 1800s has faced some
pushback, especially from cases like American Council of Life Insurers,
American Trucking Associations, and Schneider Transport v. Cattanach, all of
which spend considerable time trying to differentiate between taxes and tolls
 Under the approaches set forth in American Council of Life Insurers or American
Trucking Associations, this is clearly a tax
o The charge was levied by the legislature, and there is no mention that an
outside agency will be tasked with setting the price of the toll
o The charge falls on a fairly narrow population, as it falls only on
commercial motor carriers, which represent less than 10% of miles
travelled (CBO Spending and Funding for Highways)
 However, since this is a factor balancing test, and the court in
American Trucking Associations specifically found that this test is
not exhaustive and provides only flexible guidance, this factor
should not weigh negatively against this being considered a tax
o The revenue raised by the charge is placed into a general transportation
fund in Nittany, like in Schneider Transport v. Cattanach, and the revenue
raised will greatly benefit the general public
 American Trucking Associations cautioned that the broad purpose
of a statute (such as revenue raising) is not indicative of whether a
fee is a tax or a toll because most statutes have a revenue raising
 function. Instead, should look at whether the revenues provide a
benefit to the regulated individuals. Although truck drivers will
definitely benefit from safe travel on State Route 29 and a faster
path to Buckeye, the population as a whole will benefit the most
from the revenue raising. The revenue will be used for ALL of
State Route 29, certain parts of which may become completely
unsafe for travel if the rehabilitation project does not happen.
Without collecting this tax on commercial motor carriers, the entire
population will suffer from not being able to use all of State Route
29.
 Although the rehabilitation project is needed on State Route 29, it is imperative
that states cannot pass legislation that forces one segment of the population to pay
for something that benefits all people. Passenger vehicles account for more than
90% of vehicle-miles travelled (CBO Spending and Funding for Highways), so it
should be up to the passenger vehicles to also pay for the necessary rehabilitation.

IV. Compliance with Title 23

 23 U.S.C. § 301
o Prohibits tolls on all Federal-aid highways, except as provided in 23
U.S.C. § 129 (listed below).
 23 U.S.C. § 129
o 23 U.S.C. § 129(a)(1)(F) Allows for “reconstruction of a toll-free Federal-
aid highway and conversion of the highway to a toll facility”
 Students could argue that the proposed “rehabilitation” project falls
within the statute or does not.
 DOES comply with the statute  Although 23 U.S.C. §
129(a)(1)(F) states provides only for “reconstruction” of a
toll-free Federal-aid highway into a toll highway, 23 U.S.C.
§ 101(a)(4)(B) defines construction as including
“reconstruction, resurfacing, restoration, rehabilitation, and
preservation.” Since “reconstruction” and “rehabilitation”
are both included in this general definition of
“construction,” they are synonymous. Therefore, the
rehabilitation project complies with Title 23. Additionally,
one of the policy reasons behind Title 23 is to create the
“safe, efficient, and reliable flow of interstate and
international commerce and freight transportation” (23
U.S.C. § 101(b)(3)(D)(ii)). The reason for the rehabilitation
project for State Route 29 is to ensure that commercial
motor carriers do not have to add an extra 2 hours to their
trip to Buckeye, Nittany’s largest trading partner. Safety is
also a priority of the statute, and travel on State Route 29
could become unsafe if the rehabilitation project does not
occur.
 DOES NOT comply the statute  The statute does not
explicitly state “rehabilitation” for turning a toll-free
 Federal-aid highway into a toll facility as an exception to
the collection of tolls. In other provisions of 23 U.S.C. §
129, “rehabilitation” is listed explicitly. Since
“rehabilitation” is not specifically listed in 23 U.S.C. §
129(a)(1)(F), Congress did not intend for projects such as
Nittany’s would be covered.

IV. Compliance with Title 23

 23 U.S.C. § 301
o Prohibits tolls on all Federal-aid highways, except as provided in 23
U.S.C. § 129 (listed below).
 23 U.S.C. § 129
o Lists the exceptions to the prohibition on tolls. However, since this is
actually a tax and not a toll, Title 23 does not apply at all. Nittany’s
legislation is therefore acceptable, barring any issues dealing with the
taxation.