What Happened Thursday (redux)?

Good question, that.

As a disclaimer, it's possible I may misstate some of the following stuff. If so, feel free to re-educate me.

As another disclaimer, when I re-posted this I took the liberty of editing the original text here and there to reflect more of what I actually remember seeing and writing. It's still not a 100% complete reflection of my answers because I can't recall everything I wrote under the stress and strain of the situation. And even if I thought it was, I've always been surprised when I see my actual answers when the Bar sends them back to me.

Essay One was Constitutional Law. It started out smelling like a Commerce Clause essay that quickly became one about delegation powers. Congress recognized some sort of danger to public health inherent in the national transportation system so they delegated power to the Secretary of Transportation to make laws that were either necessary and proper, or for the general welfare, of the country; I forget the actual language.

The delegation language looked funny so I thought about it and decided to write something about how Congress can properly delegate legislative functions to the Executive branch, but also that the delegated powers must come with some sort of minimal guidelines. This delegation was wide open so I said it was invalid. Then I went on to answer the question.

I wrote about individual and association standing for the first two groups. Now that I think about it, they probably wanted third-party standing too. Then I wrote about Substantive Due Process. I didn't have time to include Procedural DP, or Equal Protection but I thought they were less applicable. And Privileges and Immunities didn't apply. As for the State Highway Department, I think I talked about how the 10th Amendment prohibits the feds from making the states act as an arm of the federal government, but I also mentioned Kansas v. Dole and said it was proper for the feds to withhold funding to get a state to implement some important federal interest. Or something to that effect.

Essay Two was a Torts Remedies/Civil Procedure/Professional Responsibility crossover. I wrote down "riparian rights" when I saw the stream then erased it when I saw they told us not to talk about riparian or property rights (whew!)

The one lady owned a large property and dammed up the stream to create a pond so she could have disadvantaged kids up for summer programs. The downstream property owners sued for an injunction in a California state court based on "nuisance" for the deprivation of water for irrigation and wells. When the court dismissed it for failure to state a claim (I think), one of the parties refiled in Federal court and she asserted Res Judicata as a defense. The disgruntled federal filer then made a threat to his lawyer that he was going to make the lady landowner pay and that he was going to blow up the dam. The lawyer called 911 and tipped off the authorities and the question was whether she was subject to discipline under either the ABA or California Rules of Professional Conduct.

I went through the private nuisance analysis and injunction analysis, then spent one line on why public nuisance wouldn't work. On exams past I would have gone into more detail about why a public nuisance claim would fail, but I kept it short and sweet this time. One line and out. I also added some about defenses, Laches and Unclean Hands. I talked a bit more about Laches because of the six month delay but the Unclean Hands analysis was another one-liner.

EDIT: I now recall that the question asked about a 'takings' issue and how I spent a few lines on why it wasn't a taking because there wasn't state action. And I also recall that despite the fact that the question said not to talk about property rights, I wrote about nuisance and takings. So, given that those were the only things to talk about (unless I completely brain-farted) what else was there?

I think I did a good Res Judicata analysis, and I resisted the urge to talk about Collateral Estoppel. I concluded that RJ wouldn't work because the first suit wasn't prosecuted to a full final judgment on the merits. On the PR issue, I said that under ABA rules, she was good, but under CA rules, she was bad. Unless, of course, he included facts about blowing up the kids too, but again, that last was a one-liner.

Essay Three was Criminal Procedure. The guy's speeding and weaving through traffic so the cop pulls him over. There's probable cause for the stop, but not reasonable suspicion for the illegal search and seizure of the cocaine under the front seat. The guys are arrested, taken to the station, and charged with some variety of illegal possession. The guys are properly Mirandized, the driver asserts his right to silence and the passenger waives his right and says a bunch of stuff that may be incriminating to the driver. They're charged and each hires a private attorney. Their going to be tried together and the driver wants to either suppress the passenger's statements or get a separate trial. Then, a week before trial, the driver wants to fire his attorney and thinks maybe that he might want to get another attorney. Again, this is one week before trial.

Anyway, the stop was legal but the search was not because the passenger's action was not sufficient for probable cause. Especially because the cop hadn't yet run the driver's license or registration. I wrote about a couple of exceptions, Search Incident to a Lawful Arrest and Vehicle Search, but I didn't go into Inevitable Discovery because I didn't have time and it wasn't clear that they would inevitably discovered the drugs because the search and arrest were illegal.

The confession was proper because the guy waived his rights. The requested substitution of attorney was iffy because of the proximity of the the trial and because he didn't have a replacement ready. The driver couldn't suppress the passenger's statement because he can't assert the Constitutional rights of another, besides, the statement could be used against the driver if his information was redacted, regardless of whether they got joint or separate trials. Then I wrote that he was going to have a hard time getting a separate trial unless he could show prejudice or a conflict.

I was stuck right there for a few minutes but I felt there must be something I was missing. Then, when the proctor called "5 Minutes!" it hit me, Exclusionary Rule, fruit of the poisonous tree! So I quickly added that because the seizure was illegal, and no exceptions applied, the cocaine was inadmissible, the arrests were improper, the confession-thing was inadmissible, there would be no trial, and the whole thing was moot. Or something to that effect.

And that, for now, is that.

Oh, and Lamar Odom re-signed with the Lakers. Woo Hoo!