BAR/BRI W06 :: simulated exam :: constitutional law

1. state action: Because the Constitution generally applies only to governmental action, applicants must show state action. State action exists wherever a state affirmatively facilitates, encourages, or authorizes certain acts or activities. Applicants should keep in mind that there will typically be state action because state action is required in order to develop and address additional issues within the question. If applicants are certain that absolutely no state action exists, they should address the issue in the alternative so as to not miss any additional legal theories or arguments.

2. freedom of religion: There are two major clauses under the First Amendment freedom of religion: establishment clause v. fee exercise clause. Applicants should be specific and refer to the relevant clause when discussing freedom of religion issues.

3. lemon test: If a government regulation or action contains no sect preference, it is valid under the Establishment Clause if it: (i) has a secular purpose; (ii) has a primary effect that neither advances nor inhibits religions; and, (iii) does not produce excessive government entanglement with religion.

4. time, place & manner restrictions: The government has power to regulate the conduct associated with speech and assembly. The amount of power depends on whether the forum involved is a public forum, a limited public forum, or a nonpublic forum.

5. public form: The government may regulate speech in public forums and limited public forms with reasonable time, place and manner restriction that: (i) are content neutral; (ii) are narrowly tailored to serve an important government interest; and (iii) leave open alternative channels of communication.

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constitutional law :: 2.5 (out of 7)

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