8-HOUR OPEN-BOOK TAKE-HOME Mr. Froomkin
 

This is an 8-hour take-home open-book examination, with length limits on the answers. Certain special rules about citation apply if you rely on, or make reference to, materials other than the casebook and class notes. Please remember to use your blind grading number on the exam.
 

"Open book," defined. This exam is "open world": you may consult any reference source except other human beings. The exam has, however, been designed in the hope that excellent answers can be crafted without reference to any source other than the casebook, class materials, and class notes. Your instructor believes that reference to external sources is unnecessary, and bordering on unwise (if only as a waste of your limited time). The use of sources other than the casebook, class materials, and class notes will probably require that you apply the special citation rule below. For obvious reasons, you are expected to refrain from discussing the contents of the exam with anyone from the time you pick up the exam until the end of the examination period.
 

A memo discussing the exam answers will be available from my secretary early next semester. Watch the mailing list for details.
 

Citation rules. Citations to cases and materials in the book may be in any short form that is understandable, e.g. Overton Park. In citing materials other than cases, clarity is usually achieved by including a page reference as part of the citation.
 

While you are free to consult other materials, it is neither necessary nor recommended. If you do so, and if you rely on those materials for any material part of your answer, you are required to provide a full citation to the source, just as if you were writing an academic paper (no penalties for improper Blue Book style will be levied). This rule applies whether or not you are quoting from the source. Failure to give proper citations will, if detected, be considered a serious Honor Code violation.
 

Length Limits. Each question on this exam has a length limit of 1000 words. I will not read beyond the length limit. If you type (please type!), the following safe harbor rule will apply: each typed page with 1" margins on all four sides, which is printed in Courier 10cpi, Times Roman 12pt or Helvetica 12pt, with double-spaced text, will be presumed to have 250 words so long as there are no excessive textual footnotes.
 

Please start each question on a new page, and place your blind grading number on the first page of each question. If you do not submit a typed exam, please retain a copy of the handwritten version (writing on every other line) and submit a typed copy as soon as you can.
 

Read the questions carefully and think about your answer before beginning to write. Organization will count in your favor. Unless the question directs otherwise, don't forget to explain why you reject seemingly sensible options as well as why you select them.
 

Do NOT make up facts. If you would need additional facts to resolve an issue, state what facts you would need (and, if relevant, how you might get them), and how those facts would affect the result of your analysis.

There is a length limit of 1000 words (4 standard pages) for each question. Given the complexity of the subject matter, this is a very short limit. You will thus need to be concise and well-organized to answer the questions well.

Good luck, and thanks for a great class.
 

Answer two of the following three questions. Each answer will be half of your exam grade.
 

QUESTION ONE
 

The people of the state of Arcadia recently passed Amendment Z to the state constitution in a public referendum. Amendment Z reads as follows:
 

"The people shall have the right to address a local government public official without regard to ex parte communications considerations."

Imagine you work at the Arcadian State Attorney General's office. You have been asked to write short memo -- 1000 words maximum -- on whether there are any federal constitutional issues which might limit the effect of Amendment Z. [Ignore all state constitutional issues.] What guidance can you give to local government public officials concerning the interaction between Amendment Z and the federal constitution regarding their participation in various types of local government proceedings?
 

QUESTION TWO

"Chevron changes the relationship between judges and statutory interpretation. Where once statutory ambiguity expanded judicial power, it now constricts it. Judges who were once creative are now limited to deferential review for unreasonableness. It used to be that an unambiguous text limited judicial power. After Chevron statutory clarity expands judicial power since it gives the courts plenary review of administrative action. Finding meaning in the text no longer enhances the power of the legislature over the judiciary; instead, it emphasizes the power of the judiciary over the executive. In addition, Chevron has other separation of powers consequences. Judicial confession of statutory ambiguity used to be a way that judges respected the primacy of Congress over the judiciary, even if it mean striking down a statute in order to avoid judicial legislation in the absence of a Congressional decision about the hard questions; after Chevron when judges admit that a text is ambiguous, the consequence is to empower the executive at the expense of the judiciary and perhaps the legislature also."

Discuss, using case examples from the course.
 

QUESTION THREE

The 1997 Porpoise Protection Act ("PPA") directs the Secretary of Agriculture to "promulgate standards governing the proper handling, care, treatment, and transportation of porpoises by dealers, research facilities, and exhibitors." The statute states that the Secretary "shall require minimum standards" of a physical environment "adequate" to "ensure the healthy development of porpoises." The Act further provides that the USDA may establish procedures for inspection of porpoise holding facilities, and that violations of regulations issued under the act can carry fines of up to $2,500 per affected porpoise.

The United States Department of Agriculture duly issued regulations for porpoise dealers, research facilities, and exhibitors. The rules include a small number of mandatory requirements such as adequate air, food, and water and a prohibition against excessive electric shocks. The regulations also require the covered parties to "develop, document, and follow an appropriate plan for environment enhancement adequate to promote the well-being of porpoises." The plan "must not violate the accepted professional standards for porpoise care as found in appropriate professional journals." The regulations also provide that a summary of the plan, or information on how to obtain a free copy of the entire plan, must be "conspicuously posted wherever porpoises are kept." The rules do not address the issue of inspections.

Benjamin Bradley, a California resident, has been a "porpoise person" for more than 20 years. He frequently travels to view porpoises in the wild and in captivity. He writes poems about porpoises. He is also an accomplished diver and rock climber. On April 1, 1998, Mr. Bradley was climbing Litigant Peak overlooking the Santa Monica, CA, Porpoise Facility when, with the aid of a pair of high-power binoculars, he spied a pair of can-nose porpoises floating on their backs in a holding tank in the facility. Back floating is almost invariably a sign of serious ill-health in can-nose porpoises. Mr. Bradley was very seriously upset to see porpoises suffering so. He has made it a monthly practice to climb the top of Litigant Peak to view the porpoises, bringing with him increasingly powerful telescopes. What he has seen has shocked and worried him: many porpoises appear to be held in what he calls "inhumane" conditions, and show signs of suffering and ill-health. Few if any of the porpoises are being accorded adequate space or time for play and exercise, which is widely recognized as an essential component of porpoise well-being.

Candice Clairvoyant is an amateur psychic residing in New York. Starting early last year she has had intense and painful visions that the porpoises at Sea Discovery, a popular amusement park featuring trained porpoise acts located in Texas, are being mistreated. As a result she has suffered many nights of sleeplessness, lost 15 pounds, become crabby and irritable, been fired from her job as copy editor, and is now unemployed.

Pete is a porpoise residing in the Illinois Vivisection Facility. His course of experimental electroshock therapy was recently featured on "60 Minutes," a popular national TV show.

Milton Lucre is a rich philanthropist who wishes to start a national organization dedicated to the welfare of sea creatures. He has come to you find out how, if at all, he can set up an organization that would "do something" to help the porpoises of America.

Assuming that by some lucky coincidence you are familiar with all the above facts, write a memo to Mr. Lucre describing how (if at all) you might be able to use the Porpoise Protection Act to help the porpoises in Texas, California, Illinois, and elsewhere.