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Bar Con Law > 5) Due Process / Indiv Rights > Flashcards

5) Due Process / Indiv Rights Flashcards

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1
Q

const provisions can invoke against feds

A

Bill of Rights

inc 5A for discrim

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2
Q

const provisions can invoke against states

A

14A DPC (not BOR directly)

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3
Q

14A DPC incorporates all of BOR except:

A

1) 5A indictment by grand jury
2) 7A jury trial in civil cases
3) 8A excessive fines

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4
Q

discrim by state gvts: use (usually)

A

14A EPC

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5
Q

discrim by state gvts: use (exceptions)

A

1) visitors: Art. 4 priv + immunities
2) migrants to state: 14A priv + immunities
3) out of state businesses: DPC

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6
Q

priv and immunities clause usu tested re

A

right to travel

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7
Q

DP: 2 kinds

A

1) procedural

2) substantive

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8
Q

procedural DP protects

A

people
against deprivation of life, liberty, or property
w/o due process of law

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9
Q

procedural DP: “people” def

A

all people (not just citizens
AND
corporations

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10
Q

procedural DP: liberty interests

A

anything you want to do w your body, esp
freedom from bodily restraint
freedom from physical punishment

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11
Q

procedural DP: property interests

A

1) public education
2) public employment (only if tenured or just-cause provision, not at-will)
3) welfare benefits
4) driver’s license

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12
Q

procedural DP: life interests

A

executions

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13
Q

procedural DP: WHAT process is due? always must

A

1) adequate notice

2) adequate hearing

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14
Q

procedural DP: test re adequacy of notice/hearing

A

balance factors:

1) importance of the interest
2) risk of erroneous deprivation of the right (if protection not given)
3) burden to the gvt (of giving the protection)

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15
Q

substantive DP: source

A

unenumerated – not spelled out in const

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16
Q

substantive DP: economic?

A

no – economic only must pass rational basis

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17
Q

rational basis test

A

to in, indiv must show:
no rational relation
to any legit gvt interest

over-inclusive + under-inclusive ok

“legit interest” dnn to be the actual one!

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18
Q

substantive DP: tests

A 
rational basis (economic interest)
strict scrutiny (privacy interest)

no intermediate scrutiny!

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19
Q

strict scrutiny: test

A

1) compelling gvt interest (and must be actual)

2) necessity: no other way to meet the compelling interest. Least restrictive alternative, narrowly tailored

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20
Q

privacy interests protected by substantive DP: mnemonic

A

SCAMPERD

21
Q

privacy interests protected by substantive DP: list

A

1) Sexual orientation
2) Contraception
3) Abortion
4) Marriage
5) Possess obscenity
6) Education
7) Relatives
8) Death

22
Q

privacy right: Marriage: dx

A

states can regulate marriage. But SS triggered if saying your group can’t marry AT ALL (not just if limiting who you can marry)

23
Q

abortion: tests

A

1) elective: woman has a protected privacy interest in choosing to have an abortion before fetus is viable. Any regulation on pre-viability abortion is unconst if it imposes undue burden on woman’s right to choose abortion.
2) therapeutic: restrictions on post-viability abortion must have a health of the mother exception

24
Q

abortion: YES undue burden

A

total ban
spousal consent or notice
recording pt names
parental consent w/o judicial bypass

25
Q

abortion: NOT an undue burden

A 
parental consent w/ judicial bypass
24 hr waiting period
req drs provide specific (truthful, nonmisleading) info
no public funds
ban certain method (unless it's safest)
26
Q

relatives: def

A

1) gvt CAN’T prohibit members of extended family from living in single household
2) but CAN ban unrelated ppl living in single family residence

27
Q

sexual orientation: rule

A

1) sexual activity can’t be criminalized
2) RBR (but held no rational basis)
(marriage: DPC+EPC)

28
Q

education: rule

A

right to private education if can afford it

29
Q

possession of obscene material: rule (+exception)

A

ok at home
no right to buy / sell
exception: child porn

30
Q

right to die: def

A

ok refuse med tx (no right to assisted suicide)

31
Q

right to travel: source: domestic

A

1) domestic: 14 P+I – ok travel freely from state to state, move to another state

32
Q

right to travel: source: intl

A

from DPC. Not absolute.

33
Q

right to vote: sources

A

1) general – 1A right to association + 14A

2) specific amendments re voting

34
Q

right to vote: 15A

A

no race discrim in voting

35
Q

right to vote: 19A

A

no sex discrim in voting

36
Q

right to vote: 24A

A

no fed poll tax (state neither, from gen right)

37
Q

right to vote: 26A

A

18+ no age discrim

38
Q

right to vote: TEST

A

1) if total ban: strict scrutiny

if procedural reqs/burden, test: undue burden

39
Q

right to vote: ok restrictions

A

(reasonable)

1) residency req
2) registration
3) time+manner
4) voter ID
5) felon disenfranchisement

40
Q

right to vote: NOT ok restrictions

A

1) poll tax
2) school board elections (limit to parents/property)
2) vague/nonuniform counting standards

41
Q

electoral college: who chooses the electors

A

technically state legislatures, not the popular vote

42
Q

electoral college: who votes for the electors where state has made it votable

A

same ppl who can vote for state legislature

43
Q

takings clause: const

A

5A: fed gvt can’t take private property for public use w/o just compensation

also applies to states via 14A

44
Q

takings: “public use”

A

“public purpose” very broad (inc ok take + give to someone else)

45
Q

takings: kinds

A

1) direct gvt appropriation (takes your property)

2) regulatory taking

46
Q

takings: regulatory taking: def

A

regulation so onerous that tantamount to diret appropriation

47
Q

takings: regulatory taking: tests

A

1) permanent physical invasion, no matter how minor = yes
2) deprivation of ALL economically beneficial use = yes
3) if neither balancing test

48
Q

takings: regulatory taking: balancing test

A

economic + physical IMPACT
DURATION of gvt activity
CHARACTER o gvt activity

Bar Con Law (8 decks)

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