Fact-Pattern or Hypothetical Problems


When you approach these questions, the following steps will help you to solve them:


  1. As you read over the facts, try to place them in one of the categories of cases that we have studied. For example, ask yourself whether the facts indicate a possible Commerce Clause or (later in the course) implied powers or incidental powers case and, if so, whether the facts resemble an even more particular set of cases. If you decide the case is a Commerce Clause case, ask whether it is a federal power or a state power case; if it is a state power case, does it involve protectionism or burdensome regulation of interstate commerce? If it is an incidental powers case, which branch of government does it affect? This is the crucial first step: if you mis-categorize the case, you will have trouble. Always be true to the given facts: do not add new ones or ignore details that are present in the fact pattern.


  1. Recall the cases and their rules that dealt with the particular kind of case under review.


  1. Assume the perspective of one of the parties (look to the question to see which one comes first) and ask how the rules of the cases can be argued to help your case. If there are more than one plaintiff or defendant, take each plaintiff or defendant in turn, covering them all. In effect, you are making an argument that supplies the minor premises of your syllogism. “The rule in Seelig is that state laws with the purpose and effect of suppressing competition between the states violate the Dormant Commerce Clause. Here, ….


  1. Now switch hats and assume the perspective of the opposing party (or parties). Using the same rule as the opposing party, look for reasonable weaknesses, if any, in the other party’s argument. You must address the other party’s argument before you do anything else. Be reasonable; don’t make absurd statements or assertions that go beyond the given facts.


  1. Continuing as the opposing (second) party, look to the cases for other rules or facts that might provide a favorable argument for you. Spell it out, as in #3 above. For example, in the City of Philadelphia case, the dissent argued that the New Jersey law was a valid quarantine law. If the facts in the fact pattern favor such an interpretation, you should make that argument. Or in the transportation cases, where the test is a balancing test, one party will argue reasonably and persuasively that the measure’s burden on interstate commerce outweighs the police power benefit; the other party will argue the opposite. Both parties will similarly address the “reasonable less-burdensome alternative” rule.


  1. Complete the arguments by returning to the first party (or parties) and responding to the opposing party’s (parties’) arguments, as the opposing party first did in #4 above. Thus, if the quarantine argument was raised by the opposing party, the first party must reasonably and persuasively respond to it.


The key is to make sure that each party addresses each and every argument of the opposing party.