11744
*11744-F.-9-1*
11744
Institution Harvard Law School
Course / Session Forbath - Con Law-14th Amend
Control Code OPEN LAPTOP
Instructor NA
Extegrity Exam4 >
11744-F.-9-1
Section . Page 1 of 9
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Institution Harvard Law School
Printed on June 19, 2009
Course Forbath - Con Law-14th Amend
Instructor NA
Control Code OPEN LAPTOP
Exam ID 11744
Word Count(s)
Section 1 815
Section 2 834
Section 3 830
11744
*11744-F.-9-2*
11744
Institution Harvard Law School
Course / Session Forbath - Con Law-14th Amend
Control Code OPEN LAPTOP
Instructor NA
Extegrity Exam4 >
11744-F.-9-2
Section . Page 2 of 9
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Answer-to-Question-_1_
Under Lopez, Congress may regulate the channels of interstate commerce, the
instrumentalities of interstate commerce, and activities having a substantial relation to interstate
commerce (i.e., those activities that substantially affect interstate commerce). Since the PHT
does not move in interstate commerce and is not a channel of interstate commerce, the application
of the ESA to the PHT rests on the third category. The first question is whether the regulated
activity is "economic." Under Morrison, Congress's findings of the economic importance of
biodiversity are not sufficient by themselves for the courts to find that an activity is economic. If
it is, effects can be aggregated to get to "substantial." Under Raich, "economic" activities appear
to be those activities that, in some way, affect markets (including those activities involving the
"production, distribution, and consumption of commodities"). Since there is no market for the
toad, the regulated activity (degrading the PHT's habitat) is probably not economic. Another
possibility is that Pequod's development of his land may be economic activity, but