Constitutional Law I Exam
Howard University School of Law
Spring 2003
Prof. Steven D. Jamar
General Instructions
1.	You have three (3) hours for the exam.
2.	Times noted for the questions reflect the amount of time I estimate it would take to answer each question.  Please note that although the time noted does relate somewhat to the points for that question, it does not do so in a strict one-to-one fashion.
3. 	There are 300 total possible points.  
4.	Write only on one side of each page in the bluebook. 
5.	Write legibly and clearly in blue or black ink.
6.	Use headings as appropriate.
7.	Respond to the question asked.  Do not spend time on matters that are not issues just to show me how much you know.  This exam tests professional judgment as well as knowledge of constitutional law.
8.	The exam consists of 4 pages including this one instruction sheet.

Exam materials
This exam is completely closed book.  You may not use any materials for the examination.  You may not use your textbook, outlines, a copy of the constitution, or any other materials other than what is provided to you at the time of the exam.

Q. 1. 80 points  60 minutes
1.	Trademarks have protected by state law going back into the 1790s and continuing through today.  
2.	In 1881, the United States passed a law permitting registration of state trademarks with the federal government.  Federal registration gave the trademark nationwide protection.  The federal law was substantially amended and expanded in 1905, but was still essentially a procedural law under which determination of the existence and validity of a trademark was primarily a matter of state law.
3.	In 1946 the United States enacted the Lanham Act which was a wholesale revision of the federal trademark law.  The Lanham Act is a constitutional exercise of federal power under the Interstate Commerce Clause.  The federal law does not include a preemption provision and has been held not to have preempted the field of trademark law.
4.	Beginning in the mid-20th century many states began enacting broader protections for trademarks.  These statutes are generically known as anti-dilution laws.  In 1995 the federal government enacted its own anti-dilution law. 
5.	In 1955 the State of Delmarva enacted the following law:
Tarnishment or dilution of a registered trademark or trade name.
The owner of a state-registered trademark or trade name is entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person's commercial use in commerce of a trademark or trade name, if the use by that person
a.	is likely to cause dilution of the distinctive quality of the mark; or 
b.	is likely to reduce the value of a trademark or trade name through tarnishment of the trademark or trade name.
The owner is entitled to injunctive relief 
a.	even if the parties do not compete; and 
b.	even if there is no likelihood of confusion as to the source of goods or services caused by use of the tarnishing or diluting mark.

6.	In 1995 the federal Lanham Act (governing federal trademark protection) was amended to provide the following with respect to dilution (this is not the exact wording of the act; it has been edited to simplify your analysis):
Remedies for dilution of famous trade marks or trade names
1. The owner of a famous trademark or trade name registered under the Lanham Act, is entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person's commercial use in commerce of a trademark or trade name,
a.	if the use actually causes dilution of the distinctive quality of the trademark or trade name, and
b.	if the trademark or trade name is a famous trademark or trade name.

7.	Your law firm’s client, Hitek Hideaway, Inc., has come to your firm wanting to know whether it can sue to prevent the use of the trade name “Hitek Hideout, Inc.,” by another Delmarva company.  Hitek Hideaway, Inc., is a Delmarva company which has registered the trade name “Hitek Hideaway” with the state as well as under the Lanham Act.  Hitek Hideaway is in the business of selling high-end consumer electronics including video and sound systems and computer systems.  It is a small, locally owned, boutique business.
8.	Hitek Hideout is another sort of business altogether.  It too is locally owned and is a small business, but the similarity stops there.  The Hitek Hideout is a store which sells pornography and various “sex toys.”  It has not attempted to register its business name with the state or federal government.
9.	Hitek Hideaway has registered its trade name and trademark with both the federal and state trademark registration authorities.  Hitek Hideout has not registered its name federally or in the state.  Hitek Hideaway started using its name in business 10 years ago.  Hitek Hideout just started up a year ago.
10.	Under Delmarva law, the use of “Hitek Hideout” would definitely tarnish the value of the name “Hitek Hideaway.”  Under state law the similarities in the names and the seedy associations of the one would tarnish the upscale associations of the other would result in a decision for Hitek Hideaway, the senior trademark owner.  
11.	However, these two businesses are not in the same market and do not compete with each other.  This finding would be the same under both state and federal law.  It seems likely that non-tarnishment dilution would also occur, but your client has no evidence of actual dilution occurring yet.
12.	Under federal law a “famous” trademark or trade name would be marks and names which are well-known nationally, such as Kodak, McDonalds, Walt Disney, and the like.  Businesses with only local markets, like these two businesses, are not famous and do not have famous names within the meaning of the federal statute.
13.	The law firm’s partner, J.B. Jackson, has referred the matter to you to advise him about the single issue of whether the state law is preempted by the federal law.  Advise JB. 
Q. 2. 60 points  40 minutes
Consider one or more aspects of sovereign immunity under the 11th amendment.  Your essay should show some understanding of one or more the broader issues discussed in the course in class such as power relationships among the people, the federal government, and state governments; the separation of power among the executive, judicial, and legislative branches of government; modes of constitutional interpretation; and the like.  You ought not try to consider all aspects of sovereign immunity under the 11th amendment. 
Q. 3. 160 points  80 minutes
1.	President Rush T’wor was elected in a landslide vote under which he had promised to make the world safe for the United States “no matter what it takes.”  One of his first acts after taking office in January 2005 was to ask his National Security Advisor, his Secretary of State, and his Secretary of the Department of Defense to prepare a list of terrorist organizations or organizations which might threaten the United States and a list of countries which support or might support such organizations.  
2.	Six months later, the list was prepared and delivered to the President.  As a result of this list, Pres. T’wor had the Joint Chiefs of Staff develop a plan to destroy the ability of all of the organizations to attack the United States or its interests abroad, “no matter what it takes.”  To his surprise, the Joint Chiefs had anticipated this request and returned a plan in just two days.
3.	Up to this point Pres. T’wor had not consulted with any leaders of Congress or informed them of any of the specific security information relating to the plan or of his plan to attack under his doctrine of “preemptive self-defense.”  “Preemptive self-defense” is a doctrine under which the doctrine of self-defense is extended beyond responding to attacks to taking affirmative action to neutralize threats through military action before the threat becomes real.  The plan called for advance placement of troops and material resources followed by bombing and the use of ground troops as necessary.
4.	In September 2005, still without consulting Congressional leaders, T’wor began to implement the first phase of the plan, the strategic placement of resources and deployment of forces.  In February 2006 T’wor launched the first preemptive self-defense attack against a surviving Al Qaeda cell in western Afghanistan.  A number of the Al Qaeda members fled west to Iran.  T’wor issued an ultimatum to Iran to turn over the Al Qaeda members or face the U.S. war machine.  
5.	At this point some Congressional leaders expressed support for the U.S. troops, but dismay at the lack of consultation.  Other Congressional leaders condemned the actions as being unconstitutional insofar as they contended the President had exceeded his powers by not having Congress act under its power to declare war.  The President claimed that he had authority under the earlier Congressional resolutions authorizing the attacks on Al Qaeda in Afghanistan and the war in Iraq.  
6.	As President Rush T’wor invaded Iran in March 2006, several Congressional leaders, a non-governmental organization called “Peace Now and Forever,” and Shara Jones, a well-known social justice and peace activist, filed suit seeking an injunction in the courts to require the President to withdraw troops and to cease committing troops without further action by Congress explicitly authorizing it.  They also sought disclosure of the study done by the National Security Advisor, the Secretary of State, and the Secretary of the Department of Defense, disclosure of the list developed by them, and disclosure of the plan prepared by the Joint Chiefs.  
7.	President T’wor has asked the Justice Department to prepare a motion to dismiss on all possible grounds.  Other attorneys and legal interns in the Justice Department have been assigned to examine issues surrounding the attempts to compel disclosure (executive privilege) and relating to standing, so you are not to address those aspects of the problem.  
8.	You, a legal intern in the Justice Department, have been asked to prepare a memo to the Attorney General evaluating the various grounds on which a motion to dismiss could be based on only two areas:  (1) constitutional issues, if any, relating to the President’s invasion of Iran; (2) constitutional issues, if any, with respect to the doctrine of “preemptive self-defense.”  Be sure to evaluate the likelihood of success of each of the grounds you discuss.