Things You Should Know About Con Law

If you are a first year law student, most of you are most taking constitutional law. At first glance, this might seem like something you learned in high school civics. However, as it has become clear by now, that’s not the case. So, a few tips on what you need to know for constitutional law!

I. Equal Protection and Due Process are different. Sure, they overlap a lot, but you absolutely need to understand the difference. When we classify people, by any classification (race, alienage, hair color, profession) we are in equal protection territory. If, however, you are dealing with something that applies to everyone, and is a “right”, we are dealing with Substantive Due Process (ie, abortion). Sure, there can be overlap – with the issue of same sex marriage, we have equal protection issues (sexuality) and rights (marriage), but you STILL have to take one issue at a time.
II. Know your scrutinies. Don’t paraphrase them, know them, memorize them, tattoo them on your forehead. Strict scrutiny means that the government has the burden of proving the statute is narrowly tailored to a compelling government interest. Intermediate scrutiny means that the government has the burden of proving that the statute is substantially tailored to meet an important government interest. In rational basis the plaintiff has the burden of proving that the statute is NOT rationally related to a legitimate government interest. Know who has the burden, make a chart to when these apply and memorize it.
III. Don’t dismiss an issue. A lot of my students fail to bring up certain issues because they think the plaintiff will not prevail. This is not a good idea. For instance, they see someone classified based on hair color, correctly assume that, in that case, rational basis would apply, then never bring up equal protection since the government would most likely win. This may be very true, however, I am almost certain your professor STILL wants you to bring up the claim, and explain WHY the plaintiff would not win.
IV. Congress can’t do anything it please. Know that Congress has limited powers, namely the power to regulate interstate commerce and the power to tax and spend. If you see a fact pattern where Congress is acting, make sure they actually have the power to do so.
V. Don’t invent rights. We honestly don’t have that many, so don’t make them up. I would make a chart, outlining the rights we DO have (the fundamental rights, like the right to privacy, to marry and to vote) and then highlight those rights with examples from cases you read in class. Don’t assume we have rights that were NOT mentioned in those cases.

Above all else, do not be afraid to ARGUE. That is mostly the point of training to be a lawyer!

Exams Just Around the Corner!!!!!!!

Yippee? I know, not quite. And no, I’m not going to lie and tell you “it’s not that bad” or anything else equally as ridiculous. It IS bad, BUT, there are certainly ways to deal. So, what are those ways to deal?

1) Be calm. Hey, I can see you rolling your eyes at me! Stop that. I’m serious, remain calm. Anxiety and stress are yet two more foes for exams, so please do not indulge them. The more anxious and stressed you are, the less likely you are to remember things. Who wants that?

2) Take One Thing At A Time. This is part of the answer to “ok fine Melissa, but HOW do I remain calm? Have you TAKEN law school exams? Do you KNOW what kind of pressure I am under?” Yes and yes. And honestly, If you feel yourself becoming overwhelmed; stop, breath, grab some chocolate and make a to do list. Then, tackle one thing at a time. That’s all you can do. Stop stressing about how many exams you have, and how many more cases you have to read, and how you haven’t started outlining and oh my god I haven’t even done a practice hypo yet………and just resolve to tackle all of this one step at a time. That’s all you can do, AND once you resolve to do that, you will feel calmer, and trust me you will get more done. Because stressing about how much you have to do doesn’t ACTUALLY get any of it done.

3) Practice, Practice, Practice. Yes, I know how much work you have to do. Yes, I know that writing out practice exams is not exactly your idea of fun. Well, suck it up. However, please believe me when I say that nothing prepares you for your final exams like practicing for them. You wouldn’t go on stage and sing without first practicing (drunken karaoke aside! And really, let’s not treat exams like karaoke!), if you were on a sports team and had a game coming up, again, you’d practice. So why are exams any different? Some schools have exam banks where professors put up old exams – use them, practice them, love them. If your school does not, seek out upperclassman, or look to books like Examples and Explanations (or LawTutor’s own Big Pictures, Little Essays) for help. But the key is, you have to practice issue spotting, practice writing the rules out, and practice the analysis. There are no short cuts to this.

4) Outlining. There is no perfect outline. You don’t get extra points for completing one, or for color coding it. The purpose of an outline is to help you review. You probably have about 100 pages, give or take, of class notes. You can’t just sit there and re-read them, not only is that boring, but it’s not of any help. You need to DO something with those notes. Outlining is that process; take the class notes and condense them, figure out what is important, etc. You can also use, as part of this process, charts, flashcards, flowcharts. All of those things help you review and condense the information you have. Also, think about what your exam will look like, and what your professor is expecting, and prepare accordingly. For instance, for my constitutional law course I had a professor that really liked it when you argued both sides, and really really REALLY liked when you could compare and contrast her facts to previous cases (in the legal world we call that an ANALYSIS). So, how did I prepare? I made a list of cases, arranged by topic, including a few lines of important facts, as well as the holding. My entire list was about 5 pages long: it wasn’t intended to be comprehensive, but merely to give me a quick reference guide when I was reviewing the night before.

5) Don’t Memorize. Sure, some rules you have to memorize, and some language is important – this is a given. But this is not college or high school – merely memorizing rules or cases will not get you that A exam. What WILL get you that A exam is knowing what to DO with the rules and cases. Again, we call that an analysis. This means you can’t just memorize words, you have to understand them. A little trick I learned – if you can’t explain it to someone else, you don’t know what it means. So, what I would do is take your class notes (which should have applicable rules in them), and rewrite them, in your own words. Or, rewrite them with examples. If you can’t paraphrase something, or think of your OWN example, you probably don’t get it as well as you need to, so this is an area you should focus on. If you can’t “get it” on your own, seek out a professor, a TA, a tutor (like me!) or an upperclassman. Even classmates can help, but be weary, they don’t always know more than you!

So, hopefully that will help you survive until June! Good Luck!