Alliteration Overdose

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

Alliteration Overdose

Obviously, I’m working my way through practice materials from 2009, and this one got under my skin. Maybe it’s just me.

A state’s commercial code provides, in part, that “the minimum price of cheese sold in this state shall be $2.50 per pound.”

As to which of the following persons would the state statute be most likely constitutionally applied?

a.     A resident of the state selling cheese in that state to a manufacturer of snack foods whose plant is located in a neighboring state.

b.    A resident of Canada selling cheese made in Canada to the citizens of the state.

c.     A resident of the state selling cheese to the Commissary at the United States Air Force Base in the state.

d.    A resident of the state selling cheese to the state Department of Education for its use in its school lunch program.

Now, I don’t know about you, but this question really discombobulated me. From the inarticulate call of the question — “… likely constitutionally…” — to the annoying alliteration overdose of “s,” this question just downright irritated me.

Of course, that made me want to get it right even more, but in a timed setting, such emotional responses run the risk of inducing test takers to spend too much time, overanalyzing and second-guessing themselves.

First, the call. Fortunately, this pattern is so short, it’s the exception to the rule and it’s really unnecessary to read the call first, because you’ll only be re-reading it in 15 seconds.

I struggled with the form: “most likely be constitutionally applied.” Maybe that's because students are taught — at least I was — to analyze from the opposite point of view: determine why it’s unconstitutional? So the reversal confused me. There goes a few precious seconds! 

“Which situations are unconstitutional?” is the question I asked myself to check off those circumstances and by process of elimination leave me with the sole remaining constitutional choice.

Remember, states cannot regulate interstate commerce, except where Congress has authorized them to do so, OR where Congress has not expressed an intention dominating a particular area of regulation AND where the state regulation in that area does not discriminate or unduly burden interstate commerce.

Let’s look at the answers and spot the tipoffs.

A.   State resident selling into a neighboring state. Tipoff: interstate commerce where a fixed price would be burdensome if higher than market price, even though the regulation, in applying to all cheese transactions, is nondiscriminatory.

B.   Foreigner selling cheese into the state. Tipoff: international commerce and that power exclusively belongs to Congress.

C.   State resident selling to the federal government. Tipoff: Nothing to do with interstate commerce — states simply cannot regulate the federal government.

And the winner is:

D.   State resident selling to state agency. Tipoff: intrastate and no apparent undue burden on interstate commerce.

Time to move on!

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.