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Con Law
Barbri Review
| Question | Answer |
|---|---|
| Federal Judicial Power- Requirement for cases and controversies; Standing | Issue of whether P is proper party to bring a matter to ct for adjudication |
| Federal Judicial Power- Requirement for cases and controversies; Standing: Injury | P must allege and prove that he/she has been injure or imminently will be injured |
| Federal Judicial Power- Requirement for cases and controversies; Standing: Injury, P | Only may assert injuries that they personally have suffered; Seeking injunctive or declaratory relief must show likelihood of future harm |
| Federal Judicial Power- Requirement for cases and controversies; Standing: Causation and redressability | P must allege and prove D cause the injury so that a favorable ct decision likely to remedy injury |
| Federal Judicial Power- Requirement for cases and controversies; Standing: Third-party standing | P cannot assert claims of others, of third parties, who are not before ct; Best answer on exam- P who suffered most monetary loss |
| Federal Judicial Power- Requirement for cases and controversies; Standing: Third-party standing, Exception- Close relationship | Third party standing is allowed if there is a close relationship b/w P and injured third party |
| Federal Judicial Power- Requirement for cases and controversies; Standing: Third-party standing, Exception- Injured third party | Third part standing allowed if injured third party is unlikely to be able to assert his/her own rights |
| Federal Judicial Power- Requirement for cases and controversies; Standing: Third-party standing, Exception- Organization | Org. may sue for its members if- 1. Member would have standing to sue, 2. Interest are germane to org. purpose, 3. Neither claim nor relief requires participation of individual members |
| Federal Judicial Power- Requirement for cases and controversies; Standing: No generalized grievance | P must not be suing solely as citizen or as taxpayer interested in having gov't follow the law |
| Federal Judicial Power- Requirement for cases and controversies; Standing: Exception, Taxpayers | Have standing to challenge gov't expenditures pursuant to federal statutes as violating the Establishment Clause |
| Federal Judicial Power- Requirement for cases and controversies; Ripeness | Question of whether federal ct may grant pre-enforcement review of a statute or regulation |
| Federal Judicial Power- Requirement for cases and controversies; Ripeness: Hardship | The hardship that will be suffered w/o preenforcement review |
| Federal Judicial Power- Requirement for cases and controversies; Ripeness: Fitness | The fitness of the issues and the record for judicial review |
| Federal Judicial Power- Requirement for cases and controversies; Mootness | If events after filing of lawsuit end the P's injury, the case must be dismissed as moot |
| Federal Judicial Power- Requirement for cases and controversies; Mootness: Exception, Repetition | Wrong capable of repetition but evading review |
| Federal Judicial Power- Requirement for cases and controversies; Mootness: Exception, Cessation | Voluntary cessation |
| Federal Judicial Power- Requirement for cases and controversies; Mootness: Exception, Class action | Class action suits |
| Federal Judicial Power- Requirement for cases and controversies; Political question doctrine | Refers to constitutional violations that federal cts will not adjudicate- 1. Republican form of gov't clause, 2. Challenges to President's conduct of foreign policy, 3. Challenges to impeachment and removal process, 4. Challenges partisan gerrymanderi |
| Federal Judicial Power- Supreme ct review; Writ of certiorari | All cases from state ct; All cases from U.S. Ct of App; Appeals exist for decision of three-judge federal dist ct; Original/exclusive jurisdiction for suits b/w state gov't |
| Federal Judicial Power- Supreme ct review; When hear cases | Only after has been final judgment of highest state ct, of U.S. Ct of App, or of three-judge federal dist ct |
| Federal Judicial Power- Supreme ct review; To review state ct decision | There must not be an independent and adequate state law ground of decision; If state ct decision rests on state law and federal law, if reversal of federal law will not change result, Supreme Ct cannot hear |
| Federal Judicial Power- Lower federal court review; Federal (State) courts may not hear suits against state gov't: Sovereign immunity | 11th amendment bars suits against States in federal ct; Sovereign immunity bars suits against States in state cts or federal agencies |
| Federal Judicial Power- Lower federal court review; Federal (State) courts may not hear suits against state gov't: Exception, State can be sued | Waiver is permitted; State sued under Section 5, 14th am (Congress cannot authorize suits against states under other constitutional provisions); Federal gov't sues state gov't; Bankruptcy proceedings |
| Federal Judicial Power- Lower federal court review; Federal (State) courts may not hear suits against state gov't: Suits against state officers | 1. Injunctive relief, 2. Money damages to be paid out of their own pocket, 3. Not if it is state treasury that will be paying retroactive damages |
| Federal Judicial Power- Lower federal court review; Abstention | Federal cts may not enjoin pending state ct proceedings |
| Federal Legislative Power- Congress's authority to act; Congressional power | Must be express or implied Congressional power |
| Federal Legislative Power- Congress's authority to act; Clauses | Necessary and proper clause |
| Federal Legislative Power- Congress's authority to act; Powers | Taxing/spending power and commerce power |
| Federal Legislative Power- Congress's authority to act; Powers: Taxing/spending power | Congress may tax and spend for general welfare |
| Federal Legislative Power- Congress's authority to act; Powers: Commerce power, Congress may regulate | 1. Challenges of intestate commerce, 2. Instrumentality and persons/things in interstate commerce, 3. Economic activities that have substantial effect on interstate commerce (non-economic activity= substantial effect not based on cumulative impact) |
| Federal Legislative Power- Congress's authority to act; 10th amendment as limit on Congressional powers | All powers not granted to U.S., nor prohibited to state are reserved to state or people |
| Federal Legislative Power- Congress's authority to act; 10th amendment as limit on Congressional powers: Cannot compel | Congress cannot compel state regulatory or legislative action; Congress can induce state gov't action by putting strings on grants, so long as conditions expressly stated and relate to purpose of spending program |
| Federal Legislative Power- Congress's authority to act; 10th amendment as limit on Congressional powers: Prohibit | Congress may prohibit harmful commercial activity by state gov'ts |
| Federal Legislative Power- Congress's authority to act; 10th amendment as limit on Congressional powers: Section 5 of 14th amendment | Congress may not create new rights or expand scope of rights; Congress may act only to prevent or remedy violations of rights recognized by cts and such laws must be "proportionate" and "congruent" to remedying constitutional violations |
| Federal Legislative Power- Delegation of powers; No limits | Exist on Congress' ability to delegate legislative power |
| Federal Legislative Power- Delegation of powers; Unconstitutional legislative veto's and line-item vetos | For Congress to act, there always must be bicameralism (passage by both House and Senate) and presentment (giving bill to President and sign or veto), President must sign or veto bill entirely |
| Federal Legislative Power- Delegation of powers; Not delegate | Congress may not delegate executive power to itself or its officers |
| Federal Executive Power- Foreign policy; Treaties | Agreements b/w U.S. and foreign country that are negotiated by President and are effective when ratified by Senate |
| Federal Executive Power- Foreign policy; Treaties: Prevail | Treaties prevail over conflicting state laws |
| Federal Executive Power- Foreign policy; Treaties: Last in time | If treaty conflicts with federal statute, the one adopted last in time controls |
| Federal Executive Power- Foreign policy; Treaties: Invalid | If treaty conflicts with U.S. Constitution, it is invalid |
| Federal Executive Power- Foreign policy; Executive agreements | Agreement b/w U.S. and foreign country effective when signed by President and head of foreign nation |
| Federal Executive Power- Foreign policy; Executive agreements: Usage | Executive agreements can be use for any purpose |
| Federal Executive Power- Foreign policy; Executive agreements: Prevail | Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution |
| Federal Executive Power- Foreign policy; President broad powers | President has broad powers as Commander-in-Chief to use American troops in foreign countries |
| Federal Executive Power- Domestic affairs; Appointment and removal power: Appointment power, President appoints | President appoints ambassadors, federal judges and officers of U.S. |
| Federal Executive Power- Domestic affairs; Appointment and removal power: Appointment power, Congress may | Congress may vest appointment of inferior officers in President, the heads of departments or the lower federal cts |
| Federal Executive Power- Domestic affairs; Appointment and removal power: Appointment power, Congress may not | Congress may not give itself or its officers appointment power |
| Federal Executive Power- Domestic affairs; Appointment and removal power: Removal power | Unless removal is limited by statute, the President may fire an executive branch office |
| Federal Executive Power- Domestic affairs; Appointment and removal power: Removal power, Limited | For Congress to limit removal, it must be an office where independence from President is desirable |
| Federal Executive Power- Domestic affairs; Appointment and removal power: Removal power, Cannot prohibit | Congress cannot prohibit removal, it can limit removal to where there is good cause |
| Federal Executive Power- Domestic affairs; Impeachment and removal | President, Vice President, federal judge and officers of U.S. can be impeached and removed from office for treason, bribery, or high crimes and misdemeanors |
| Federal Executive Power- Domestic affairs; Impeachment and removal: Impeachment | Does not remove person from office; By House of Representatives requires majority vote, conviction in Senate requires 2/3 votes |
| Federal Executive Power- Domestic affairs; President's absolute immunity | To civil suits for money damages for any actions while in office; However, President does not have immunity for action that occurred prior to taking office |
| Federal Executive Power- Domestic affairs; President's executive privilege | For presidential papers and conversations, but such privilege must yield to other important gov't interest |
| Federal Executive Power- Domestic affairs; President's power to pardon | Those accused or convicted of federal crimes |
| Federalism- Preemption | Supremacy Clause of Article VI provides that Constitution, and laws and treaties made pursuant to it, are supreme law of the land |
| Federalism- Preemption; Express | ... |
| Federalism- Preemption; Implied: Mutually exclusive | If state law and federal law mutually exclusive, federal law preempts state law |
| Federalism- Preemption; Implied: Impedes | If state law impedes the achievement of federal objective, federal law preempts state law |
| Federalism- Preemption; Implied: Clear intent | If Congress evidences a clear intent to preempt state law, federal law preempts state law |
| Federalism- Preemption; Inter-governmental immunity | States may not tax or regulate federal government activity |
| Federalism- Dormant commerce clause and Privileges and immunity clause of Article IV; Dormant commerce clause | Grant of power to regulate commerce on states, so if have not acted and then does is law undue burden; Who is actor? State or local gov't= dormant clause Negative implication of commerce clause |
| Federalism- Dormant commerce clause and Privileges and immunity clause of Article IV; Privileges and immunities clause | Article IV: No state may deprive citizens of other states of privilege and immunity it accords its own citizens; 14th amendment: Always wrong answer unless, right to travel |
| Federalism- Dormant commerce clause and Privileges and immunity clause of Article IV; Does state law discriminate against out-of-staters? | Start here with analysis! Discriminate or treat in-staters and out-of-staters alike? Usually do not |
| Federalism- Dormant commerce clause and Privileges and immunity clause of Article IV; Analysis if law does NOT discriminate | a. Privleges and immunities clause Article IV does NOT apply, b. If law burdens interstate commerce, it violates dormant commerce clause if its burdens exceeds its benefits |
| Federalism- Dormant commerce clause and Privileges and immunity clause of Article IV; Analysis if law discriminates against out-of-staters: Law burdens interstate commerce | If law burdens interstate, it violates dormant commerce clause unless it is necessary to achieve important gov't purpose |
| Federalism- Dormant commerce clause and Privileges and immunity clause of Article IV; Analysis if law discriminates against out-of-staters: Law burdens interstate commerce, Exception- Congress | Congressional approval |
| Federalism- Dormant commerce clause and Privileges and immunity clause of Article IV; Analysis if law discriminates against out-of-staters: Law burdens interstate commerce, Exception- Market participant | A state or local gov't may prefer its own citizens in receiving benefits from gov't programs or in dealing with gov't-owned business |
| Federalism- Dormant commerce clause and Privileges and immunity clause of Article IV; Analysis if law discriminates against out-of-staters: Ability to earn livelihood | If law discriminates against out-of-staters w/regard to ability to earn their livelihood, it violates privileges and immunities clause of Article IV unless sit is necessary to achieve an important gov't purpose |
| Federalism- Dormant commerce clause and Privileges and immunity clause of Article IV; Analysis if law discriminates against out-of-staters: Ability to earn livelihood, Law must discriminate | Law must discriminate against out-of-staters |
| Federalism- Dormant commerce clause and Privileges and immunity clause of Article IV; Analysis if law discriminates against out-of-staters: Ability to earn livelihood, Civil liberties | Be with regard to civil liberties or important economic activities |
| Federalism- Dormant commerce clause and Privileges and immunity clause of Article IV; Analysis if law discriminates against out-of-staters: Ability to earn livelihood, Corporations and aliens | Cannot use the privileges and immunities clause |
| Federalism- Dormant commerce clause and Privileges and immunity clause of Article IV; Analysis if law discriminates against out-of-staters: Ability to earn livelihood, Discrimination must be necessary | To achieve an important government purpose |
| Federalism- State taxation and interstate commerce | States may not use their tax systems to help in-state business; State may only tax activities if there is a substantial nexus to the state; State taxation of interstate business must be fairly apportioned |
| Federalism- Full faith and credit; Cts in one state must give full faith and credit to judgements of cts in another state, so long as- | 1. Ct rendered judgment had jurisdiction over parties and subject matter, 2. Judgement was on merits, 3. Judgment is final |
| Structure of Constitution's Protection of Individual Liberties- Is there government action?; Constitution applies | Only to government action; Private conduct need not comply with Constitution |
| Structure of Constitution's Protection of Individual Liberties- Is there government action?; Private conduct: 13th amendment | Can be used to prohibit private race discrimination; Only discrimination can violate 13th amendment |
| Structure of Constitution's Protection of Individual Liberties- Is there government action?; Private conduct: Commerce power | Can be used to apply constitutional norms to private conduct |
| Structure of Constitution's Protection of Individual Liberties- Is there government action?; Private conduct: Section 5, 14th amendment | Congress cannot use to regulate private behavior |
| Structure of Constitution's Protection of Individual Liberties- Is there government action?; Private conduct | Congress, by statute, may apply constitutional norms to private conduct |
| Structure of Constitution's Protection of Individual Liberties- Is there government action?; Exceptions | Situations where private conduct must comply with Constitution |
| Structure of Constitution's Protection of Individual Liberties- Is there government action?; Exceptions: Public function | Constitution applies if a private entity is performing a task traditionally, exclusively done by gov't |
| Structure of Constitution's Protection of Individual Liberties- Is there government action?; Exceptions: Entanglement | Constitution applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity |
| Structure of Constitution's Protection of Individual Liberties- Is there government action?; Exceptions: Entanglement, Key examples- 1-3 | 1. Ct cannot enforce racially restrictive covenant, 2. There is state action gov't leases premises to restaurant that racially discriminates, 3. State action when state provides books to schools that racially discriminate |
| Structure of Constitution's Protection of Individual Liberties- Is there government action?; Exceptions: Entanglement, Key examples- 4-5 | 4. No state action when private school is over 99% funded by gov't fires a teacher b/c speech, 5. No state action when NCAA order suspension of basketball coach at state university |
| Structure of Constitution's Protection of Individual Liberties- Is there government action?; Exceptions: Entanglement, Key examples- 6-7 | 6. State action when private entity regulates interscholastic sports w/in state, 7. Not state action when private club with liquor license from state racially discriminates |
| Structure of Constitution's Protection of Individual Liberties- Application of Bill of rights | Bill of rights applies directly only to federal gov't |
| Structure of Constitution's Protection of Individual Liberties- Application of Bill of rights; State and local gov't | Applies to state and local gov't through its incorporation into due process clause of 14th amendment; Exceptions have not been incorporated to states |
| Structure of Constitution's Protection of Individual Liberties- Application of Bill of rights; State and local gov't: Exception, 3rd amendment | Right to not have soldier quartered in a person's home |
| Structure of Constitution's Protection of Individual Liberties- Application of Bill of rights; State and local gov't: Exception, 5th amendment | Right to grand jury indictment in criminal cases, but States do not have to use |
| Structure of Constitution's Protection of Individual Liberties- Application of Bill of rights; State and local gov't: Exception, 7th amendment | Right to jury trial in civil actions |
| Structure of Constitution's Protection of Individual Liberties- Application of Bill of rights; State and local gov't: Exception, 8th amendment | Right against excessive fines |
| Structure of Constitution's Protection of Individual Liberties- Levels of scrutiny; Rational basis test | Law upheld if it is rationally related to a legitimate governmental purpose; Gov't objective= legitimate (not actual purpose so long as conceivable legitimate); Gov't usually wins; Challenger has burden of proof |
| Structure of Constitution's Protection of Individual Liberties- Levels of scrutiny; Intermediate scrutiny | Law upheld if substantially related to important gov't purpose; Gov't objective= important (looking only to gov't actual purpose) Means= substantially related to achieving objective (aka narrowly tailored); Gov't has burden of proof |
| Structure of Constitution's Protection of Individual Liberties- Levels of scrutiny; Strict scrutiny | Law upheld if necessary to achieve a compelling gov't purpose; Gov't objective= compelling (crucial, vital)l Gov't means= necessary to achieve objective (least restrictive alternative) Gov't has burden of proof (usu loses) |
| Individual Rights- Definitions; Procedural due process | Procedures gov't must follow when it takes away person's life, liberty or property; Claim of no right procedure and seeking new procedure |
| Individual Rights- Definitions; Substantive due process | Whether gov't has adequate reason to take away person's life, liberty, or property; Substantive justification- look to scrutiny used (economic liberties, and safeguard privacy); Nature of claim that persons rights violated |
| Individual Rights- Definitions; Equal protection | Whether gov't differences in treatment of people are adequately justified; Exam- focus nature of claim and nature of relief requested; Nature of claim that persons treated differently from others treated similarly |
| Individual Rights- Procedural due process; Deprivation of life, liberty, or property?: Liberty | Deprivation of liberty occurs if there is loss of significant freedom provided by Constitution or a statute |
| Individual Rights- Procedural due process; Deprivation of life, liberty, or property?: Property | Deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled |
| Individual Rights- Procedural due process; Deprivation of life, liberty, or property?: Government negligence | Not sufficient for deprivation of due process; Generally, must be intentional gov't action or at least reckless action for liability to exist; In emergency, gov't liable under due process only if conduct "shocks the conscience" |
| Individual Rights- Procedural due process; Deprivation of life, liberty, or property?: Government's failure to protect | Generally, government's failure to protect people from privately inflicted harms does not deny due process |
| Individual Rights- Procedural due process; Procedures required: Test | Balance- 1. Importance of interest to individual, 2. Ability of additional procedures to increase accuracy of fact-finding, 3. Government's interests |
| Individual Rights- Procedural due process; Procedures required: Examples | Welfare benefit terminate= notice/hearing; Social security disability= post termination hearing; Discipline by public school= notice/opportunity to explain; Right to custody terminate= notice/hearing; Punitive damages= instruct jury/judicial review |
| Individual Rights- Economic liberties; Rational basis test | Only rational basis test used for laws affecting economic rights; Constitution provides only minimal protection for economic liberties |
| Individual Rights- Economic liberties; Taking clause | Gov't may take private property for public use if it provides just compensation |
| Individual Rights- Economic liberties; Taking clause: Is there taking?, Possessory | Gov't confiscation or physical occupation of property is taking |
| Individual Rights- Economic liberties; Taking clause: Is there taking? Regulatory | Gov't regulation is taking if it leaves no reasonable economically viable use of property |
| Individual Rights- Economic liberties; Taking clause: Development of property | Gov't condition on development of property must be justified by benefit that is roughly proportionate to burden imposed; Otherwise, it is taking |
| Individual Rights- Economic liberties; Taking clause: Property owner | May bring takings challenges to regulations that existed at time property acquired |
| Individual Rights- Economic liberties; Taking clause: Temporarily denying owner use of property | Not a taking so long as gov't action is reasonable |
| Individual Rights- Economic liberties; Taking clause: Is it for public use? | If possessory or regulatory use then Gov't may take property for public use (or must give back); Public use: taking so long as gov't acts out of reasonable belief that taking would benefit public |
| Individual Rights- Economic liberties; Taking clause: Is just compensation paid? | Assuming taking for public use, can take as long as just compensation; Measured by reasonable market value for the loss of the owner (not gain of taker) |
| Individual Rights- Economic liberties; Contracts clause | No state shall impair obligations of Ks |
| Individual Rights- Economic liberties; Contracts clause: Applies | Only to state or local interference with existing Ks |
| Individual Rights- Economic liberties; Contracts clause: Private Ks | State or local interference with private Ks must meet intermediate scrutiny- a. Does legislation substantially impair party's rights under existing K? b. If so, law reasonably and narrowly tailored means of promoting important/legitimate public interest |
| Individual Rights- Economic liberties; Contracts clause: Gov't Ks | State or local interference w/gov't Ks must meet strict scrutiny |
| Individual Rights- Economic liberties; Contracts clause: Ex post facto | Does not apply in civil cases; Retroactive civil liability only need meet rational basis test |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to marry | Gov't can interfere with right to marry only if it meets with strict scrutiny; |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to procreate | Gov't can impose involuntary sterilization only if it meets strict scrutiny |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to custody of one's children | Gov't can permanently terminate custody if only shows compelling need like parental abuse/neglect; Qualification- State may create irrebuttable presumption that married woman's husband father of child |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to keep family together | "Moore" limited number of unrelated people in household, grandma and first cousin outed and ct held unconstitutional; Individuals must be related |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to control upbringing of one's children | May interfere with parenting decisions only if meets strict scrutiny |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to purchase and use contraceptives | "Giswald"- fundamental right |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to abortion: Prior to viability | State may not prohibit abortions, but may regulate abortions if do not create undue burden on ability to obtain; Ex: Requirement for 24 hrs waiting period, abortion performed by license physician, prohibit partial birth abortions- not undue burden |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to abortion: After viability | States may prohibit abortions unless necessary to protect woman's life or health |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to abortion: Gov't no duty | To subsidize abortions or provide abortions in public hospitals |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to abortion: Spouse consent and notification | Spousal consent and notification laws unconstitutional |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to abortion: Parents notice and consent law for unmarried minors | State may require parental notice and/or consent for unmarried minor's abortion if an alternative procedure where minor can obtain abortion by going before judge who can approve abortion by finding it in minor's best interest or mature enough to decide |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to privacy: Homosexual activity | Protect right to engage in private consensual homosexual activity |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to refuse medical treatment | Competent adult right to refuse medical treatment, even life-saving medical treatment |
| Individual Rights- Privacy is fundamental right protected under substantive due process; Right to refuse medical treatment: State may- | Require clear and convincing evidence person wanted treatment terminated before it is ended; Prevent family member from terminating treatment of another |
| Individual Rights- Second amendment right to bear arms | Right for people to have weapons in home for sake of security; Incorporated to state and local gov't; Not absolute right, so gov't can regulate where people have guns (schools/airports) and who can have guns (felons/mentally ill) |
| Individual Rights- Right to travel; Strict scrutiny | Law that prevent people from moving into state must meet strict scrutiny; Durational residency requirements must meet strict scrutiny |
| Individual Rights- Right to travel; Rational basis | Restrictions on foreign travel need meet only rational basis test |
| Individual Rights- Right to vote; Denying citizens to vote | Laws that deny some citizens right to vote must meet strict scrutiny; But, regulations of electoral process to prevent fraud only need be on balance desirable |
| Individual Rights- Right to vote; One-person, one-vote | Must be met for all state and local elections |
| Individual Rights- Right to vote; At-large elections | Constitutional unless there is proof of discriminatory purpose |
| Individual Rights- Right to vote; Use of race | In drawing election district lines must meet strict scrutiny |
| Individual Rights- Right to vote; Equal protection | Counting uncounted votes without standards in presidential election violates equal protect |
| Individual Rights- Right to education | No fundamental right to education |
| Equal protection- An approach to equal protection questions; 1. What is the classification? | Use for equal protection questions; How is gov't drawing a distinction among people |
| Equal protection- An approach to equal protection questions; 2. What level of scrutiny should be applied? | Told when immediate or strict scrutiny so anything else will be under rational basis review |
| Equal protection- An approach to equal protection questions; 3. Does this law meet level of scrutiny? | Scrutiny rule that you apply to gov't action/law in question |
| Equal protection- Constitutional provisions concerning equal protection; 14th amendment | Equal protection clause of 14th amendment applies only to state and local gov't |
| Equal protection- Constitutional provisions concerning equal protection; 5th amendment | Equal protection is applied to federal gov't through due process clause of 5th amendment |
| Equal protection- Classification based on race and national origin | Strict scrutiny is used |
| Equal protection- Classification based on race and national origin; How is existence of racial classification proven?: Face of law | Classification exists on face of the law |
| Equal protection- Classification based on race and national origin; How is existence of racial classification proven?: Facially neutral | If law is facially neutral, proving racial classification requires demonstrating both discriminatory impact and discriminatory intent; Ex: Discriminatory use of peremptory challenges based on race denies equal protection |
| Equal protection- Classification based on race and national origin; How should racial classification benefiting minorities treated? | Strict scrutiny applied |
| Equal protection- Classification based on race and national origin; How should racial classification benefiting minorities treated?: Numerical set-asides | Require clear proof of past discrimination |
| Equal protection- Classification based on race and national origin; How should racial classification benefiting minorities treated?: Educational institutions | May use race as one factor in admissions decision to help minorities; However, may not add points to applicants' admissions scores based on race |
| Equal protection- Classification based on race and national origin; How should racial classification benefiting minorities treated?: Public school system | May not use race as factor in assigning student to schools unless strict scrutiny is met |
| Equal protection- Gender classifications | Immediate scrutiny is used; + gender discrimination allowed only if "exceedingly justification" |
| Equal protection- Gender classifications; How is existence of gender classification proven?: Face of law | Classification exists on face of law |
| Equal protection- Gender classifications; How is existence of gender classification proven?: Facially neutral | If law facially neutral, proving gender classification requires demonstrating both discriminatory impact and discriminatory intent; Ex: Discriminatory use of peremptory challenged based on gender |
| Equal protection- Gender classifications; How should gender classification benefiting women be treated? | Gender classification benefiting women that are based on role stereotypes will not be allowed |
| Equal protection- Gender classifications; How should gender classification benefiting women be treated? Remedy | Gender classification that designed to remedy past discrimination and differences in opportunity will be allowed |
| Equal protection- Alienage classifications | Generally, strict scrutiny applied |
| Equal protection- Alienage classifications; Rational basis test | Alienage classification that concern self-gov't and democratic process; Congressional discrimination against aliens |
| Equal protection- Alienage classifications; Intermediate scrutiny | Discrimination against undocumented alien children |
| Equal protection- Discrimination against non-martial children | Intermediate scrutiny used |
| Equal protection- Discrimination against non-martial children; Deny benefit | Law that denies benefit to all non-marital children, but grant it to all marital children are unconstitutional |
| Equal protection- Rational basis review used for all other types of discrimination under Constitution; Age discrimination | Favorite for MBE- Mandatory retirement law from gov't= gov't wins |
| Equal protection- Rational basis review used for all other types of discrimination under Constitution; Disability discrimination | "Cliburn Living Center" ct held only rational basis review for discrimination against people for disabilities; Here zoning ordinance was unconstitutional |
| Equal protection- Rational basis review used for all other types of discrimination under Constitution; Wealth discrimination | Poverty is NOT suspect classification; Discrimination against poor |
| Equal protection- Rational basis review used for all other types of discrimination under Constitution; Economic regulations | Rational basis even if due process or equal protection; "Dukes" ordinance for push cart vendor then must work there for 8 yrs, gov't economic regulation so gov't won |
| Equal protection- Rational basis review used for all other types of discrimination under Constitution; Sexual orientation discrimination | "Evans" when CO voters tried to abolish regulation and still upheld because rational basis |
| First Amendment- Free speech methodology; Content-based v. content-neutral restrictions: Content-based | Content-based restrictions on speech generally must meet strict scrutiny |
| First Amendment- Free speech methodology; Content-based v. content-neutral restrictions: Content-based, Laws | 1. Subject matter restrictions (application of law depends on topic of message), 2. Viewpoint restrictions (application of law depends on ideology of message) |
| First Amendment- Free speech methodology; Content-based v. content-neutral restrictions: Content-neutral | Content-neutral laws burdening speech generally need only meet intermediate scrutiny |
| First Amendment- Free speech methodology; Prior restraints: Ct order | Suppressing speech must meet strict scrutiny; Procedurally must be complied with until vacated or overturned; Person who violates ct order barred from later challenging |
| First Amendment- Free speech methodology; Prior restraints: License | Gov't can require license for speech only if important reason for licensing and clear criteria leaving almost no discretion to licensing authority; Must contain procedural safeguards such as prompt determination of requests for licenses/judical review |
| First Amendment- Free speech methodology; Vagueness and overbreadth: Vagueness | A law unconstitutionally vague if reasonable person cannot tell what speech is prohibited and what is allowed |
| First Amendment- Free speech methodology; Vagueness and overbreadth: Overbreadth | Law is unconstitutionally overbroad if it regulates substantially more speech than constitution allows to be regulated |
| First Amendment- Free speech methodology; Vagueness and overbreadth: Fighting words | Laws are unconstitutionally vague or overbroad |
| First Amendment- Free speech methodology; Symbolic speech | Gov't can regulate conduct that communicates if it has important interest unrelated to suppression of message and if impact on communication is no greater than necessary to achieve gov't purpose |
| First Amendment- Free speech methodology; Anonymous speech | Protected |
| First Amendment- Free speech methodology; Gov't speech | Speech by gov't cannot be challenged as violating First amendment |
| First Amendment- What speech is unprotected or less protected by First amendment?; Incitement of illegal activity | Gov't may punish speech if there is substantial likelihood of imminent illegal activity and if speech is directed to causing imminent illegality |
| First Amendment- What speech is unprotected or less protected by First amendment?; Obscenity and sexually-oriented speech: Test | a. Material must appeal to prurient interest, b. Material must be patently offensive under law prohibiting obscenity, c. Taken as a whole, material must lack serious redeeming artistic, literary, political or scientific value |
| First Amendment- What speech is unprotected or less protected by First amendment?; Obscenity and sexually-oriented speech: Zoning ordinances | Gov't may use zoning ordinance to regulate the |
| First Amendment- What speech is unprotected or less protected by First amendment?; Obscenity and sexually-oriented speech: Child pornography | May be compeltely banned, even if not obscene; To be child pornography, child must be used in production of material |
| First Amendment- What speech is unprotected or less protected by First amendment?; Obscenity and sexually-oriented speech: Private possession | Gov't may not punish private possession of obscene materials; But, gov't may punish private possession of child pornography |
| First Amendment- What speech is unprotected or less protected by First amendment?; Obscenity and sexually-oriented speech: Seize assets | Gov't may seize assets of business conviction of violation obscenity laws |
| First Amendment- What speech is unprotected or less protected by First amendment?; Obscenity and sexually-oriented speech: Profane and indecent speech | Generally protect by First amendment |
| First Amendment- What speech is unprotected or less protected by First amendment?; Obscenity and sexually-oriented speech: Profane and indecent speech, Exceptions | 1. Over broadcast of media, 2. In schools |
| First Amendment- What speech is unprotected or less protected by First amendment?; Commercial speech: Advertising | Advertising for illegal activity, and false and deceptive ads are not protected by First amendment |
| First Amendment- What speech is unprotected or less protected by First amendment?; Commercial speech: True commercial speech | Inherently risks deception can be prohibited |
| First Amendment- What speech is unprotected or less protected by First amendment?; Commercial speech: True commercial speech, Gov't may prevent | Professionals from advertising or practicing under trade name |
| First Amendment- What speech is unprotected or less protected by First amendment?; Commercial speech: True commercial speech, Gov't may prohibit | Attorney, in-person solicitation of clients for profit |
| First Amendment- What speech is unprotected or less protected by First amendment?; Commercial speech: True commercial speech, Gov't may not prohibit | Accountants from in-person solicitation of clients for profit |
| First Amendment- What speech is unprotected or less protected by First amendment?; Commercial speech: Other commercial speech | Can be regulated if intermediate scrutiny is met |
| First Amendment- What speech is unprotected or less protected by First amendment?; Commercial speech: Gov't regulation | Of commercial speech must be narrowly tailored, but does not need be the least restrictive alternative |
| First Amendment- What speech is unprotected or less protected by First amendment?; Defamation: Public official/running for public office | If P public official or running for public office, P can recover for defamation by proving falsity of statement and actual malice |
| First Amendment- What speech is unprotected or less protected by First amendment?; Defamation: Public figure | If P public figure P can recover for defamation by proving falsity of statement and actual malice |
| First Amendment- What speech is unprotected or less protected by First amendment?; Defamation: Private figure and public concern | If P private figure and matter public concern, state may allow P to recover for defamation by proving falsity and negligence by D; However, P may recover presumed or punitive damages only by showing actual malice |
| First Amendment- What speech is unprotected or less protected by First amendment?; Defamation: Private figure and not public concern | If P private figure and matter not public concern, P can recover presumed or punitive damages without showing actual malice |
| First Amendment- What speech is unprotected or less protected by First amendment?; Defamation: Liability for intentional infliction of emotional distress for defamatory speech | Must meet defamation standards and cannot exist for speech otherwise protected by First amendment |
| First Amendment- What speech is unprotected or less protected by First amendment?; Privacy: Truthful reporting | Gov't may not create liability for truthful reporting of info that was lawfully obtained from gov't |
| First Amendment- What speech is unprotected or less protected by First amendment?; Privacy: Media broadcasts | Liability not allowed, if media broadcasts a tape of an illegally intercepted cal, if media did not participate in illegality and it involves matter of public importance |
| First Amendment- What speech is unprotected or less protected by First amendment?; Privacy: Limits | Gov't may limit its dissemination of information to protect privacy |
| First Amendment- What speech is unprotected or less protected by First amendment?; Government employees | Speech by gov't employees on job in performance of their duties is not protected by First amendment |
| First Amendment- What speech is unprotected or less protected by First amendment?; Other gov't restrictions | Based on content of speech must meet strict scrutiny; Ex: Restriction on violate speech must meet strict scrunity |
| First Amendment- What places are available for speech?; Public forums | Gov't properties that gov't is constitutionally required to make available for speech |
| First Amendment- What places are available for speech?; Public forums: Regulations, Subject matter and view point neutral | Must be subject matter and view point neutral, or if not, strict scrutiny must be met |
| First Amendment- What places are available for speech?; Public forums: Regulations, Time, place or manner | Regulation that serves an important gov't purpose and leaves open adequate alternative places for communication |
| First Amendment- What places are available for speech?; Public forums: Regulations, Gov't | Gov't regulation of public forums need not use least restrict alternative |
| First Amendment- What places are available for speech?; Public forums: City officials | Cannot have discretion to set permit fees for public demonstrations |
| First Amendment- What places are available for speech?; Designated public forums | Gov't properties that gov't could close speech, but chooses to open speech; Same rules apply as for public forums |
| First Amendment- What places are available for speech?; Limited public forums | Gov't properties that are limited to certain groups or dedicated to discussion of only some subjects; Gov't can regulate speech in limited public forums so long as regulation is reasonable and view point neutral |
| First Amendment- What places are available for speech?; Non-public forums | Gov't properties that gov't constitutionally can and does close to speech; Gov't can regulate speech in non-public forum so long as regulation is reasonable and view point neutral |
| First Amendment- What places are available for speech?; First amendment | There is no first amendment right of access to private property for speech purposes |
| First Amendment- Freedom of association; Prohibit or punish group membership | Law prohibits or punish group membership must meet strict scrutiny |
| First Amendment- Freedom of association; Prohibit or punish group membership: Punishment | To punish membership in group must be proven person- 1. Actively affiliated with group, 2. Knowing of its illegal activities, and 3. With specific intent of furthering those illegal activities |
| First Amendment- Freedom of association; Disclosure of group members | Law require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny |
| First Amendment- Freedom of association; Group discrimination | Law prohibit group from discriminating are constitutional unless interfere with intimate association or expressive activity |
| First Amendment- Freedom of religion; Free exercise clause | Cannot be used to challenge a neutral law of general applicability; Gov't may not deny benefits to individual who quit their jobs for religious reasons |
| First Amendment- Freedom of religion; Establishment clause: Test | 1. There must be a secular purpose for law, 2. Effect must be neither to advance nor inhibit religion, 3. Must not be excessive entanglement with religion |
| First Amendment- Freedom of religion; Establishment clause: Religious speech | Gov't cannot discriminate against religious speech or among religions unless strict scrutiny met |
| First Amendment- Freedom of religion; Establishment clause: Religious activity in public school | Gov't sponsored religious activity in public schools is unconstitutional; But, religious students and community groups must have same access to school facilities as non-religious groups |
| First Amendment- Freedom of religion; Establishment clause: Parochial schools | Gov't may give assistance to parochial schools, so long as it is not used for religious instructions; Gov't may provide parents vouchers which they use in parochial schools |
Created by:
dmoore147
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