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2. A secondary purpose is to provide something more by way of feedback than a mere "grade" on the second (rewrite) assignment. What follows is both (a) a sample of a relatively good paper and (b) my annotated comments (in indented italics).

3. There are many ways of grading. Two are "gestalt" and "matrix." Gestalt, from the German for an integration best seen as  whole rather than distinct parts, I use to mean reading over an exam and, based on 40 years of exam reading, coming up with an overall impression of at least a range of possible grades on the answer. Matrix, by contrast, I use to mean a spreadsheet with exam numbers across one axis and identifiable "issues" (usually 50 or more) with their maximum possible points along the other. This involves the entry of 1000 or more scores. (Incidentally, I usually use both methods, then curve the scores for both. Normally, for almost all papers, the ranking ends up being nearly identical.)

All of which is a long-winded way of saying my gestalt guess is that this will end up being one of the better papers (something I cannot know at this point, since they have not yet all been graded) -- say, something in the 84-87 range (that's about as high as I ever go). (That will give those of you who are focused on grades as such some basis for comparing your own paper to this one.)

4. Your process, then, should you decide to try to get maximum benefit from this resource, is not unlike what Justice Jackson once characterized as the Court's process in evaluating the constitutionality of a statute: "[We] lay the the article of the Constitution which is invoked beside the statute which is challenged and . . . decide whether the latter squares with the former." United States v. Butler, 297 U.S. 1 (1936), casebook p. 211. In other words, lay your paper down beside this illustrative sample paper, look at both, consider my annotations, and see if you can figure out by yourself (the process you'll need to use when editing your own writing in practice) how you might have done some things differently.

5. Because I really do not know at this point who wrote this paper, I cannot thank him or her by name. But I really do appreciate their willingness to have their paper used in this way. I hope all of you will find it helpful.

-- N.J., March 8, 2003
 

MEMORANDUM

TO:  Judge Block
FROM:  Law Clerk
RE:  Coalition v. Department of the Interior
DATE:  February 21, 2003
 

The precise form of headings is not important (unless your judge, firm , court rules -- or professor -- provide otherwise), but this paper includes some of the basic elements: what the document has to do with, who wrote it, when, and so forth. And don't forget to number pages. There are practical reasons for all such practices.

I.    Is Public Law No. 108-1A, 117 Stat. ___ (2003) (“Public Law 108”) unconstitutional in so far as it eliminates judicial review by federal inferior courts of agency decisions regarding the construction of the 9/11 Memorial?
 

This is deceptively simple and short. It's well worth considerable study and, I would guess, represents a good deal of thought and rewriting.

Notice both the structure and the level of detail in this language. Structure: "unconstitutional," "in so far as," and then four details. Details: Not just "unconstitutional in so far as it eliminates judicial review," but going on to specify (1) federal courts, (2) federal inferior courts, (3) of agency decisions, and (4) "regarding construction of the 9/11 Memorial."

Each of these details is important to the analysis and decision, and yet relatively few papers were this precise. At the same time, it is what we call "lean writing": there is no excess verbiage here we really don't need.

In law, as in science, it is the effort and ability at perceiving and phrasing the questions (what in law we call "spotting the issues") that makes finding the answers relatively easy.

This statement might be improved, but beyond that my comments would be similar to those above. It represents an effort to be sufficiently detailed to tie the questions to the facts and law of the case.

I.    No.  Public Law 108 is not unconstitutional because Article III, section 1 of the Constitution gives Congress the authority to eliminate judicial review by federal inferior courts of agency decisions regarding the construction of the 9/11 Memorial.

Again, tight, lean, sufficiently but not excessively detailed, and to the point. Note also that there are no qualifiers, such as, "appears to be" or "is probably." Note also, and a biggie, the writer is working from the right provision of the Constitution. Many students treated this as an Article III, section 2 case.

"[T]he law for agency decisions" might better have been something like, "the law providing the procedures for agency decisions" -- but it's not "wrong" as is. Note the reference to "rule of decision," and "reopen the judgment," setting us up for the discussion to follow. There are three references to "Public Law 108" (the second of which omits the "108"); you want to watch multiple repetitions in a short space; maybe the second reference could be, simply, "the law did not reopen."  "[C]hanged the underlying law, making the agency decisions" might better be "changed the underlying law in ways that made the subsequent agency decisions" -- again, not "wrong."

In Justice Stone's dissent in Di Santo v. Pennsylvania, 273 U.S. 34 (1927), casebook p. 244, he (with Holmes and Brandeis, not a bad trio) says (with regard to the "direct"-"indirect" analysis in dormant commerce clause cases), "[We] are doing little more than using labels to describe a result rather than any trustworthy formula by which it is reached."

You may recall my making a similar point with regard to these papers for those of you who used, for example, an "equity"-"law" distinction, or a phrase like "final decision," rather than describing with at least a little detail what is really involved. Note that this author has not fallen into that trap. The reason, he or she says, why the law "did not reopen the judgment in this case" is not because it is "in equity;" it is "because the district court had an ongoing supervision of the permanent injunction" (and the law, a significant "condition" of that injunction, had changed).

Look at this endnote (just click on the "1.") Now, for starters, you weren't supposed to have footnotes/endnotes. But that's no big deal, and is in any event irrelevant to the point. The point is that, while on the one hand you need to draw the line and not bring up everything, it may not hurt (in an answer to an essay exam question, or brief) to note the issues you know are there but with which you are not going to deal. The endnote deals with a really important issue, actually: the unwarranted, unexamined assumption in the problem that, of course, Congress has the power to go around building memorials. Well, that's quite an assumption. As we know, everything any state or federal institution does has to be justified, somehow and some way, with something in the Constitution authorizing the action. What authorizes memorials, the spending power? So the author tells us "it is assumed that Congress had the constitutional authority to construct the Memorial."

In Public Law 108, Congress expressly eliminated judicial review by federal inferior courts of agency decisions regarding the construction of the 9/11 Memorial.  The district court must determine if the Constitution gave Congress the authority to eliminate judicial review by federal inferior courts in this case.
 

Wham, there it is. No messing around with "First I am going to tell you what I learned in Constitutional Law about Marbury v. Madison. Here's what Congress did; here's the question that puts before the court.

OK, note what the author has done. Again, it's bam, bam, bam. The author starts with the right section of the Constitution. S/He then uses an "it logically follows" (does it, really?) to get us from "establish inferior courts" to "eliminate jurisdiction." Article III, section 2, is used, but with a cool analogy (goodness, if it's OK for the Congress to be curtailing the jurisdiction of the Supremes it's got to be OK to limit the jurisdiction of inferior courts). [Of course, note in this connection that the contrary argument would be equally valid: Because the Constitution does find it necessary to specify Congress' power with regard to the Supreme Court, the fact that the drafters failed to provide such a power in the very adjacent, preceding section, must mean that it considered and abandoned such a power.] But then comes the zinger; "You see, gentle reader, I am not the only one who thinks my brilliant analysis is sound. When the Supreme Court itself considered the matter it came to the same conclusion I did."

Incidentally, I have no idea how the author found that case. But I do know that you were introduced to something called the United States Code Annotated (U.S.C.A.). "Annotated" means that, in addition to constitutional and statutory material, there are also summary paragraphs of all the cases interpreting those provisions where you could have found cases like this.

If Article III, section 1 gives Congress the power to eliminate jurisdiction of federal inferior courts, then Congress can eliminate judicial review of agency decisions.  Many cases and statutes are consistent with the interpretation.  For example, in Bowen v. Michigan Academy of Family, the U.S. Supreme Court held that Congress had the authority to preclude judicial review of agency decisions regarding the determination of benefit amounts.  476 U.S. 667, 670-671 (1986).  Moreover, the Administrative Procedure Act, a legislative act created by Congress, states that Congress can preclude judicial review by overcoming the general presumption of judicial review of agency decisions.  5 U.S.C.A. §701(1)(a).   In this case, Congress clearly rebutted the general presumption of judicial review in Public Law 108 because the statute specifically stated that the agency decisions “…shall not be subject to judicial review.”
 

Note the beginning "if-then" construction. I would have said "this interpretation" rather than "the interpretation." Note the "Many cases . . .. For example, . . .." Note the provision of some facts explaining the case (but not paragraphs of unnecessary elaboration). Because the Administrative Procedure Act might also be unconstitutional, if it's true, the APA reference would be stronger support for the proposition for which offered if the reference could be followed with something like, "The constitutionality of this provision has never been questioned, either in litigation or in the law reviews." Note the absence of any lengthy discussion of presumptions of judicial review, let alone leading the discussion with such assertions. The downplaying of the presumption could have been taken even further with something like, "Congress clearly rebutted any presumption of judicial review." Finally, tense is a constant problem in all of our writing; it's worth it to proofread anything you write at least once just for that alone. Here, I would say "the statute specifically states" rather than "stated." And the last sentence might be shortened somewhat to ". . . judicial review because Public Law 108 specifically . . .."

Thus, Public Law 108 is not unconstitutional because Article III, section 1 of the Constitution gives Congress the authority to exclude judicial review by federal inferior courts of agency decisions regarding the construction of the 9/11 Memorial.

Here's a nice little wrap-up conclusion/repetition, on the off-chance the reader didn't grasp the argument it. Once again it's both detailed and succinct.

In Coalition v. The Dept of the Interior, the district court issued a permanent injunction because the agencies violated several procedural acts of Congress when they approved the construction of the 9/11 Memorial.  The U.S. Supreme Court denied certiorari.  After the decision, Public Law 108 modified the statutory procedural requirements of prior acts of Congress for agency decisions regarding construction of the 9/11 Memorial and eliminated judicial review of agency decisions.  As a result, the agencies no longer violated any procedural acts of Congress and the construction of the 9/11 Memorial is lawful.

You could do worse than to study that paragraph for awhile. That's top law firm quality writing. It gives the reader absolutely everything s/he needs to know, and in a logical order. And there's not an extra word in there.

The district court must determine if Public Law was unconstitutional because it modified the statutory procedural requirements for the construction of the Memorial and eliminated judicial review to “prescribe a rule of decision,” or control the outcome of this case.  Congress has the power to modify prior legislation and eliminate judicial review so long as it does not prescribe a rule of decision for the court.  United States v. Klein, 13 Wall. (80 U.S.) 128, 147 (1872).  Two cases illustrate this point.  In Ex Parte McCardle, the U.S. Supreme Court held that Congress had exercised its Article III, section 2 “exceptions” power to eliminate the Court’s jurisdiction to hear the case.  7 Wall. (74 U.S.) 506, 514 (1869).  Congress did not use jurisdiction as a tool to control the outcome of a decision; it simply withdrew jurisdiction of a particular class of cases.  Conversely, in Klein, Congress exceeded its Article III, section 2 power to eliminate jurisdiction by prescribing a rule of decision.  United States v. Klein, 13 Wall. (80 U.S.) 128, 147.  First, while the case was pending, Congress passed a new law that established a presumption that a claimant was guilty if the president pardoned him, even though the Court held in prior cases that the pardon was sufficient for acquittal.  Id.  Second, the new law eliminated the Court’s appellate jurisdiction only in certain situations, which depended on the facts and decision in the case.  (For example, when the claimant received a presidential pardon and was presumed to be guilty, the Court’s jurisdiction was eliminated.)  Id.  Congress’s new legislation was unconstitutional because it used the changes in presumption and jurisdiction to control the outcome of the case to secure favorable rulings for the government.  Id.

This is another excellent paragraph, and for the same reasons. A minor thing: I would change the first sentence from "because it modified" to "because the result of its modification" and from "judicial review to 'prescribe" to "judicial review was, in effect, the prescription of a 'rule." (Maybe the author just means to emphasize congressional intent, but in that case that could be made clearer, too.) Note again the selective use of cases (Klein and McCardle), but the provision of enough facts (without running on and on) to let the reader know why they were chosen and how they are applicable.

Note how the first and last sentences open, and wrap up and package, this paragraph with the same thought. Note how the argument proceeds to acknowledge, while distinguishing, Klein -- and taking on directly the "rule of decision" argument. It also acknowledges (but does not address with supporting authority) the "single memorial" problem.

Even if Public Law 108 did not prescribe a rule of decision, it will not necessarily apply retroactively to this case.  Ordinarily, the new legislation can apply retroactively to cases that are pending on appeal because the judgment of the lower court is not the last word of the judicial branch.  Plaut v. Spendthrift 514 U.S. 211, 227 (1995).  Article III creates a hierarchy of connected courts.  Id.  Consequently, while a case is on appeal, an appellate court must apply new legislation to pending cases because the judicial branch as a whole has not conclusively decided a case.  Id.  However, Congress cannot apply retroactively new legislation to cases where the court rendered a judgment and the appeal process was completed or forgone.  Id.  For example, in McCardle, discussed above, the U.S. Supreme Court had not yet ruled on the case when Congress passed new legislation that withdrew the Court’s jurisdiction.  Ex Parte McCardle, 7 Wall. (74 U.S.) 506, 514.  Therefore, as it was a case pending on appeal and the judicial branch as a whole had not rendered its last word or ruling on the case, the U.S. Supreme Court applied the new law and dismissed the case.  Id.

Conversely, in Plaut v. Spendthrift, the U.S. Supreme Court held that Congress’s new legislation was unconstitutional because it could not reopen final judgments that were the last word of the judicial branch.  514 U.S. 211, 227.   In Plaut, the District Court dismissed the petitioners’ claim because they did not bring their cause of action within the statute of limitations period.  Id. at 213.  The petitioners did not appeal.  Congress then passed legislation that expanded the statute of limitation period, stating that it applied retroactively to the final judgments.  Id at 214.  The U.S. Supreme Court held that the legislation when applied retroactively to reopen final judgments was unconstitutional.  Id at 218, 227.  Otherwise, the new legislation would deny the judicial branch’s final decision its conclusive effect and nullify the Court’s power to decide a case.  Id.

Note again the balance between, on the one hand mere citations, and on the other lengthy discussions. Not all possible cases are cited or discussed. They are chosen carefully. The most relevant descriptive material is pulled from each. Having acknowledged and set up the possible problems, the author now goes to the response.

Here again, I would avoid the use even of "final judgment cases." And, incidentally, I would say "situations in which" rather than "where." How about, ". . . Court will allow new legislation to alter the prospective effect of an injunction"?

Coalition, like Wheeling Bridge, involved a permanent injunction, in which the court continued to exercise supervision when Congress passed an applicable new law that made the prohibited act lawful.  Originally, the district court issued a permanent injunction to prohibit the construction of the Memorial because the agencies did not comply with four acts of Congress when they approved the construction of the Memorial.   When Congress passed Public Law 108, it clearly intended for the new legislation to modify the procedural requirements for approving the construction of 9/11 Memorial.  The effect of Public Law 108 is that the agency decisions that formerly violated the acts of Congress are now lawful.  Thus, Public Law is not unconstitutional because it did not force the district court to re-decide a case by reinstating a claim.  Instead, the district court continued to supervise the case and will apply this change in law to the case and dissolve the permanent injunction because the agency decisions regarding the 9/11 Memorial are now lawful.

Do you follow this analysis? What's involved is characterized by the author as a "permanent injunction" rather than a case "in equity" or a "final" (or not) decision. How could a label possibly add anything to this analysis?

There was an injunction because the agencies had violated the law -- as it then stood. A crucial condition of the injunction was that violation of law. Once the law was changed the agency procedure was no longer a violation of law. The prior injunction remained good law up until the moment the new law was passed. This legislation neither instructed nor required the court to "re-decide" or "re-open" the case. The old injunction remained a proper interpretation of the law -- as it then was. When the law changed a fundamental condition of the injunction was removed: namely there was no longer any violation of law. So, prospectively, there was no longer anything that needed to be enjoined.

A contrary argument might be that the net effect of what Congress did was the same as if it had ordered the court to re-open the case.

At the end the author might have included some one line "conclusion."

1 Note, for purposes of this analysis, it is assumed that Congress had the constitutional authority to construct the Memorial.  This analysis will concentrate on the issues specifically presented.