8/6/21 Flashcards

Question

Tenth Amendment?

Answer 1

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. * Federal government violates this when it commandeers the states

Answer 2

State sovereign immunity - forbids actions involving damages payable from the state treasury. Does not protect local governments and does not cover actions seeking to enjoin state officials from violating federal law. *The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.*

Answer 3

Electoral college - one vote designated for the president, the other for the vice president.

Answer 4

Abolished slavery

Answer 5

1. Section 1: All persons born in the US are citizens. State's can't make laws abridge the _privileges or immunities_ of citizens; nor shall any State deprive any person of _life, liberty, or property, without due process of law_; nor deny to any person within its jurisdiction the _equal protection_ of the laws. 2. Section 2: Apportions representation based on number of citizens, blacks included. 3. Section 3: Bars those who aided the South from serving in the federal government. 4. Section 4: deals with debt incurred as result of the war. 5. Section 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Answer 6

Extends right to vote to the freed slaves.

Answer 7

Income tax *The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.*

Answer 8

Senators are elected by the people, not state legislatures. The Seventeenth Amendment restates the first paragraph of Article I, section 3 of the Constitution and provides for the election of senators by replacing the phrase “chosen by the Legislature thereof” with “elected by the people thereof.” In addition, it allows the governor or executive authority of each state, if authorized by that state’s legislature, to appoint a senator in the event of a vacancy, until a general election occurs.

Answer 9

Prohibition Passed in 1917 and repealed by 21st Amendment in 1933

Answer 10

Women's right to vote. * The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.* * Congress shall have power to enforce this article by appropriate legislation.*

Answer 11

Everyone over 18 can vote.

Answer 12

The Next Best Money Is RAD, No Problem Tax, Naturalization, Bankruptcy, Money, Interstate commerce, Roads, Armies, Declare war, Necessary and Proper laws, 1. The power to tax, 2. to make laws on naturalization and bankruptcy, 3. to coin money, 4. to establish roads and post offices, 5. to declare war, 6. to raise and support armies, 7. to make all laws that are necessary and proper for carrying into execution its powers, and 8. the power to regulate interstate commerce.

Answer 13

CIT(E) with the E being an aggregate substantially affecting interstate commerce. * It extends to the channels of interstate commerce, the instrumentalities of interstate commerce, or persons or things in interstate commerce, and to economic activities that in the aggregate substantially affect interstate commerce. * It does not extend to intrastate non-economic activity where regulation of such activity is not "an essential part of a larger regulation of economic activity" (Lopez and Morrison), nor to intrastate inactivity (NFIB v. Sebelius).

Answer 14

* It is not found in the constitution, but has nonetheless been invoked to invalidate state laws that discriminate against interstate commerce or impose excessive burdens on other states, under the rationale that such laws were "one of the chief evils that led to the adoption of the constitution." Comptroller of Treasury of Maryland v. Wynne (2015) (Alito). * Inferred from Congress's power to regulate interstate commerce - the power to (1) regulate and (2) limit state/local regulation * Pike v. Bruce Church (1970)'s balancing test governs laws that merely burden, and says that the burden must be weighed against the local benefits.

Answer 15

The tripartite framework established by Justice Jackson's concurring opinion in the Steel Seizure cases (1952): 1. (1) when the President acts pursuant to an _express or implied authorization_ by Congress, "the _strongest of presumptions and the widest of latitudes of judicial interpretation_" attaches to his action; 2. (2) when the President acts in the _absence_ of congressional authorization or prohibition, "there is a _zone of twilight_ in which the President and Congress may have concurrent authority, or in which its distribution is uncertain"; 3. (3) when the President acts _contrary to the express or implied will of Congress_, his power is "at its _lowest ebb_, for then he can rely only upon his own constitutional power minus any constitutional powers of Congress over the matter."

Answer 16

Requires agencies wishing to create rules governing private conduct and having the force and effect of law to: * give the public notice of proposed rules, * give them an opportunity to comment on the rule, and * only then to finalize the rule through publication in the Federal Register.

Answer 17

Nix v. Williams, 467 US 431 (1984) (Burger)

Answer 18

According to Whitman v. American Trucking Assn. (2001) (Scalia), only where Congress provides an "_intelligible principle" to guide the agency_.

Answer 19

when it's arb/capricious or where agency has acted contrary to law or in a manner that cannot be attributed to agency expertise Generally, only where the agency has acted "arbitrarily and capriciously," which means that the agency RIFE: * _Relied_ on factors Congress didn't intend it to consider, * acted so I_mplausibly that its action cannot be ascribed to mere difference in views_ of the product of agency expertise, * _Failed_ to consider an important part of the p**_roblem_**, or * offered an explanation of its decision that runs _counter to the Evidence_ before the agency

Answer 20

The Chevron 2-step! (1) ambiguity (2) reasonableness It's the doctrine whereby courts defer to administrative agencies. It comes from Chevron v. NRDC (1984) (Stevens), and more precisely says that when a statute is _ambiguous_, indicating congressional intent to leave the matter to the agency, a court will _uphold agency action so long as it is reasonable_.

Answer 21

United States v. Booker, 543 U.S. 220 (2005) * In the first opinion, the United States Supreme Court held that the mandatory sentencing guidelines violated defendants’ Sixth Amendment right to a trial by jury by giving judges the power to make factual findings that increased sentences beyond the maximum that the jury’s finding alone would support. * In the second part, a different majority concluded that the constitutional deficiency could be remedied if the guidelines were treated as discretionary or advisory rather than mandatory.

Answer 22

RING in the death by jury Ring v. Arizona, 536 U.S. 584 (2002) (Ginsburg), held that held that the Sixth Amendment requires a jury to find the aggravating factors necessary for imposing the death penalty. Ring overruled a portion of Walton v. Arizona, 497 U.S. 639 (1990), that had previously rejected this contention.

Answer 23

Batson v. Kentucky, 476 U.S. 79 (1986) (Powell) held that a prosecutor's use of peremptory challenge in a criminal case—the dismissal of jurors without stating a valid cause for doing so—may not be used to exclude jurors based solely on their race. * The Court ruled that this practice violated the Equal Protection Clause of the Fourteenth Amendment. The case gave rise to the term Batson challenge. * Subsequent jurisprudence has resulted in the extension of Batson to _civil cases_ (Edmonson v. Leesville Concrete Company) and cases where jurors are excluded on the basis of _sex_ (J.E.B. v. Alabama ex rel. T.B.).

Answer 24

Gideon v. Wainwright, 372 U.S. 335 (1963) (Black), held that states are required under the Sixth Amendment to the U.S. Constitution to provide an attorney to defendants in criminal cases who are unable to afford their own attorneys. * The case extended the right to counsel, which had been found under the Fifth and Sixth Amendments to impose requirements on the federal government, by imposing those requirements upon the states as well.

Answer 25

1. Complaint 2. Answer to complaint 3. Answer to a counterclaim 4. Answer to a crossclaim 5. Third party complaint 6. Answer to third party complaint 7. Reply to an answer FRCP 7(a)

Answer 26

The Sentencing Reform Act of 1984 (SRA), 18 USC 3551 et seq.

Answer 27

No Person Kicks Red Pigeons At Rest 18 USC 3553: 1. the _nature_ and circumstances of the offense and the history and characteristics of the defendant; 2. the need for the sentence imposed to reflect the four primary _purposes_ of sentencing, i.e., retribution, deterrence, incapacitation, and rehabilitation; 3. the _kinds_ of sentence available; 4. the sentencing _range_ provided by the guidelines; 5. any relevant "_policy statements_" promulgated by the Sentencing Commission; 6. the need to _avoid_ sentencing disparities; and 7. the need to provide _restitution_ to victims.

Answer 28

The guideline range.

Answer 29

At least 35 days before the sentencing date. * Objections must be made at least 14 days prior to the sentencing date.

Answer 30

* A “departure” diverges from the originally calculated sentencing range for reasons contained in the Guidelines themselves, * whereas a “variance” diverges from the Guidelines sentencing range based on an exercise of the court’s discretion under § 3553(a). * Reviewed on appeal for procedural reasonableness (de novo on legal Qs and clear error on facts) and substantive reasonableness (rebuttable presumption of reasonableness for sentences within the guidelines range)

Answer 31

No. Neither the FRE nor constitutional evidentiary rules (e.g., the Confrontation Clause) apply.

Answer 32

The doctrine holds that lower United States federal courts—i.e., federal courts other than the Supreme Court—should not sit in direct review of state court decisions unless Congress has specifically authorized such relief. In short, federal courts below the Supreme Court must not become a court of appeals for state court decisions.

Answer 33

The court must complete two documents: * (1) the "Judgment in a Criminal Case," which is filed as part of the public case, and * (2) a "Statement of Reasons," which is part of the sealed record and which provides information about whether the sentence was within the guideline range, and if not, the reasons for the departure. * The court must also advise the defendant of his right to appeal, and his right to counsel for that appeal.

Answer 34

Probation or prison.

Answer 35

Sr. F! Special assessments, restitution, fines

Answer 36

No. The SRA abolished parole, and replaced it with "supervised release," which, unlike parole, is served in addition to the term of imprisonment.

Answer 37

1. Calculate the sentencing range, 2. consider policy statements or commentary in the guidelines in deciding whether to depart from the range, then 3. consider all of the 3553 factors and decide what sentence to impose, including whether a departure or variance is appropriate.

Answer 38

* "Relevant conduct," which encompasses a defendant's "real offense conduct" before, during, and after the commission of the offense. * Relevant conduct must be found by a _preponderance of the evidence_.

Answer 39

According to Rule 16, within 60 days after the appearance of a defendant, or within 90 days after the complaint has been served on a defendant.

Answer 40

DAMP 1. completion of _discovery_, 2. _amending_ the pleadings 3. _motions_, 4. joining other _parties_ The judge may also modify the times for _Rule 26 disclosures_ and set dates for the _pretrial conference and trial_.

Answer 41

Rule 47 allows either the judge or the lawyers to perform void dire. Most judges do it themselves.

Answer 42

An instruction given to a deadlocked jury to encourage further efforts to reach a verdict. * An Allen Charge has also been referred to as a “nitroglycerin charge,” “the third degree instruction” and a “shotgun instruction.” * On appeal, Allen charges can sometimes be overturned if they are determined to have had an “impermissibly coercive” effect on the jury. * For example, judges are generally not supposed to tell juries that they “must” reach a verdict. * Also, judges have been advised not to give an Allen charge after inquiring into the numerical division of the jury, because holdout jurors could interpret the charge as directed specifically at them.

Answer 43

* According to Rule 26(f), at least 21 days before the Rule 16 conference or the scheduling order is due (60 days after the appearance of a defendant, or 90 days after the complaint has been served on a defendant). * The parties must also prepare a joint discovery plan report and file it with the court within 14 days of the conference.

Answer 44

According to Rule 26(b)(1), "any non-privileged matter that is relevant to any party's claim or defense," so long as it appears "reasonably calculated to lead to the discovery of admissible evidence."

Answer 45

* Faretta v. California (1975) (Stewart). * The defendant, however, must _knowingly and willingly waive_ the right. * Nor is the right absolute; a court may revoke it in certain circumstances, such as when it is untimely, and when the pro se litigant is obstructionist or dilatory.

Answer 46

Yes. According to FRCrP 23(a), the waiver must be _in writing with the approval of the court and consent of the government_. The waiver must also be _knowing and intelligent and voluntary_.

Answer 47

Yes. According to FRCrP 23(b), the parties can stipulate in writing, with the approval of the court, to any number less that twelve. The waiver must be _knowing and voluntary_.

Answer 48

A striking of a juror without cause. * FRCRrP 24(b) bases the number of peremptory strikes available to each party on the seriousness of the offense.

Answer 49

No. Batson v. Kentucky (1986) (Powell).

Answer 50

No. J.E.B. v. Alabama (1994) (Blackmun).

Answer 51

No. Georgia v. McCollum (1992) (Blackmun).

Answer 52

No. The judge has a duty to ensure that discovery is proportional to the needs of the case. Under Rule 26(b)(2)(C), the court must limit: * unreasonably cumulative or duplicative discovery, and * discovery the burdens of which outweigh its likely benefit.

Answer 53

Under FRE 502(d), an order--which does not require party agreement, that _precludes the assertion of a waiver claim based on production in discovery_. It reduces the need for pre-production review.

Answer 54

Yes. FRE 1006 provides that a "proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place."

Answer 55

FRCP 48. No less than 6, and no more than 12. * The verdict must be unanimous unless the parties stipulate otherwise. * After a verdict is returned, if a party wants the jury polled, the court must, but can also do it on its own initiative.

Answer 56

FRCP 41(a)(2): no. Only by court order, on terms that the court considers proper.

Answer 57

No. Edmonson v. Leesville Concrete Co. (1991) (Kennedy).

Answer 58

FRCP 51(b)

Answer 59

No. Canon 5 of the Code of Conduct for United States Judges says that a judge should refrain from political activity.

Answer 60

"An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved."

Answer 61

Michigan v. Long (1983) (O'Connor)

Answer 62

Yes. Michigan Dept. of State Police v. Sitz (1990) (Rehnquist). * SCOTUS held that Michigan had a "substantial government interest" to advance in stopping drunk driving, and that this technique was rationally related to achieving that goal (though there was some evidence to the contrary). * The Court also held that the impact on drivers, such as in delaying them from reaching their destination, was negligible, and that the brief questioning to gain "reasonable suspicion" similarly had a negligible impact on the drivers' Fourth Amendment right from unreasonable search (implying that any more detailed or invasive searches would be treated differently). * Applying a balancing test, then, the Court found that the Constitutionality of the search tilted in favor of the government.

Answer 63

1965 case invalidating the Connecticut law banning contraceptives on the grounds that it violated the "right to marital privacy", establishing the basis for the right to privacy with respect to intimate practices. * This and other cases view the right to privacy as a right to "protect[ion] from governmental intrusion." Authored by William O. Douglas.

Answer 64

Is a United States Supreme Court case that established the right of unmarried people to possess contraception on the same basis as married couples (Brennan)

Answer 65

All phases of a civil case, with the written consent of the parties. 28 USC 636; FRCP 73. * Pretrial matters, such as the Rule 16 conference and non dispositive pretrial matters. * A magistrate may hear and submit to the district court proposed findings of fact and recommended determinations of dispositive pretrial matters, such as summary judgment motions. * A magistrate can conduct voir dire, if the parties consent, and any other duties not inconsistent with the constitution or statute.

Answer 66

* The purpose of criminal contempt is to punish a person for a past act of contempt--it has the characteristics of a crime and thus is cloaked with the safeguards that accompany criminal prosecutions. 18 USC 401; FRCP 42. * Civil contempt, on the other hand, is intended to compel someone to do or not to do a certain act. Other than 28 USC 1826, which applies only to recalcitrant witnesses, there is no statute or FRCP that applies to civil contempt. Thus, a judge should follow the portions of 18 USC 401 and FRCP 42 that translate to civil contempts proceedings.

Answer 67

FRCrP 6. A grand jury must contain between 16 and 23 people. Typically, 4 to 6 alternates are also chosen. The names of all jurors are kept confidential.

Answer 68

28 USC 453: "I, \_\_\_, do solemnly swear (or affirm) that I will * administer justice without respect to persons, and * do equal right to the poor and to the rich, and * that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States.

Answer 69

5 USC 3331: "I, \_\_\_, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

Answer 70

Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge’s impartiality is impaired. Canon 2C refers to the current practices of the organization.

Answer 71

None. There is no federal rule specifically covering forms of questions. A court, however, has discretion to sustain an objection to form pursuant to Rule 611.

Answer 72

FRE 901. "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce _evidence sufficient to support a finding that the item is what the proponent claims it is_."

Answer 73

"Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait."

Answer 74

FRE 405: * When evidence of a person’s _character or character trait is_ _admissible,_ it may be proved by t_estimony about the person’s reputation or by testimony in the form of an opinion_. * On cross-examination of the character witness, the court may allow an inquiry into relevant _specific instances of the person’s conduct_. * When a person’s character or character trait is an _essential element of a charge, claim, or defense,_ the character or trait may also be proved by relevant _specific instances of the person’s conduct_.

Answer 75

Yes. The so-called "rape shield" rule found in FRE 412 allows such evidence. However, FRE 412 does not allow evidence of a general propensity for promiscuousness or prior sexual conduct with others.

Answer 76

Yes. FREs 413, 414, and 415 specifically authorize such evidence.

Answer 77

Settlement offers are not admissible: Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: 1. furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and 2. conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority. Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Answer 78

Article VII. FREs 701-706.

Answer 79

Requires that a witness have personal knowledge.

Answer 80

FRE 410. Withdrawn guilty pleas and no-contest pleas are generally not admissible as evidence. Two exceptions: 1. in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or 2. in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Answer 81

FRE 406. Evidence of habit is admissible to show that on a particular occasion a person or organization acted in accordance with their habit.

Answer 82

FRE 802. * Hearsay is not admissible unless any of the following provides otherwise:* * a federal statute;* * these rules; or* * other rules prescribed by the Supreme Court.*

Answer 83

FRE 801: “Hearsay” means a statement that: 1. the declarant does not make while testifying at the current trial or hearing; and 2. a party offers in evidence to prove the truth of the matter asserted in the statement.

Answer 84

General provisions (101-106)

Answer 85

Article II (201) (a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact. (b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: 1. is generally known within the trial court’s territorial jurisdiction; or 2. can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. (c) Taking Notice. The court: 1. may take judicial notice on its own; or 2. must take judicial notice if a party requests it and the court is supplied with the necessary information. (d) Timing. The court may take judicial notice at any stage of the proceeding. (e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard. (f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

Answer 86

Presumptions in civil cases (301-302) * Rule 301 – Presumptions in Civil Cases Generally. In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally. * Rule 302 – Applying State Law to Presumptions in Civil Cases. In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision.

Answer 87

Article IV (401-415) * Rule 401. Test for Relevant Evidence * Rule 402. General Admissibility of Relevant Evidence * Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons * Rule 404. Character Evidence; Crimes or Other Acts * Rule 405. Methods of Proving Character * Rule 406. Habit; Routine Practice * Rule 407. Subsequent Remedial Measures * Rule 408. Compromise Offers and Negotiations * Rule 409. Offers to Pay Medical and Similar Expenses * Rule 410. Pleas, Plea Discussions, and Related Statements * Rule 411. Liability Insurance * Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition * Rule 413. Similar Crimes in Sexual-Assault Cases * Rule 414. Similar Crimes in Child-Molestation Cases * Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

Answer 88

Article VI (601-615) * Rule 601. Competency to Testify in General * Rule 602. Need for Personal Knowledge * Rule 603. Oath or Affirmation to Testify Truthfully * Rule 604. Interpreter * Rule 605. Judge’s Competency as a Witness * Rule 606. Juror’s Competency as a Witness * Rule 607. Who May Impeach a Witness * Rule 608. A Witness’s Character for Truthfulness or Untruthfulness * Rule 609. Impeachment by Evidence of a Criminal Conviction * Rule 610. Religious Beliefs or Opinions * Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence * Rule 612. Writing Used to Refresh a Witness’s Memory * Rule 613. Witness’s Prior Statement * Rule 614. Court’s Calling or Examining a Witness * Rule 615. Excluding Witnesses

Answer 89

Privileges (501-502) * Rule 501 – Privilege in General. The common law governs a claim of privilege unless federal law or a Supreme Court rule provides otherwise. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. * Rule 502 – Attorney-Client Privilege and Work Product; Limitations on Waiver

Answer 90

Article VII (701-706)

Answer 91

Hearsay (801-807) Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay Rule 802. The Rule Against Hearsay Rule 803. Exceptions to the Rule Against Hearsay–Regardless of Whether the Declarant Is Available as a Witness Rule 804. Exceptions to the Rule Against Hearsay–When the Declarant Is Unavailable as a Witness Rule 805. Hearsay Within Hearsay Rule 806. Attacking and Supporting the Declarant’s Credibility Rule 807. Residual Exception

Answer 92

Article IX (901-903) Rule 901. Authenticating or Identifying Evidence Rule 902. Evidence That Is Self-Authenticating Rule 903. Subscribing Witness’s Testimony

Answer 93

Contents of Writings, Recordings, and Photographs (1001-1008) Rule 1001. Definitions That Apply to This Article Rule 1002. Requirement of the Original Rule 1003. Admissibility of Duplicates Rule 1004. Admissibility of Other Evidence of Content Rule 1005. Copies of Public Records to Prove Content Rule 1006. Summaries to Prove Content Rule 1007. Testimony or Statement of a Party to Prove Content Rule 1008. Functions of the Court and Jury

Answer 94

Article XI (1101-1103)

Answer 95

The Erie doctrine is a fundamental legal doctrine of civil procedure in the United States which mandates that a federal court sitting in diversity jurisdiction (or in general, when hearing state law claims in contexts like supplemental jurisdiction or adversarial proceedings in bankruptcy) must _apply state substantive law to resolve claims under state law_.

Answer 96

FRE 401: Evidence is relevant when: * it has any tendency to make a fact more or less probable than it would be without the evidence; and * the fact is of consequence in determining the action.

Answer 97

Rule 403 says that _relevant evidence may be excluded if its probative value is substantially outweighed_ by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Answer 98

FRE 404. Rule 404 prohibits use of evidence of a person's character or character trait to prove that on a particular occasion the person acted in accordance with the character or trait.

Answer 99

FRE 407. Generally no, at least not to prove negligence, culpable conduct, product defect, or a need for warning. It can be used for other purposes, however, such as to prove who owned the property.

Answer 100

FRE 408. Such evidence is generally not admissible to prove or disprove the validity or amount of a disputed claim or to impeach.

Answer 101

No. FRE 409. * Rule 409 – Offers to Pay Medical and Similar Expenses* * Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.*

Answer 102

FRE 412. In civil and criminal cases, evidence of a victim's other sexual behavior or sexual predisposition is generally inadmissible. In a criminal case, evidence of (1) specific incidences of sexual behavior ARE admissible to prove that someone other than the defendant committed the sexual assault, and (2) specific incidences of sex with the accused ARE admissible in order to prove consent.

Answer 103

Rule 413 is an exception to the general rule against character evidence. It allows a court to admit evidence of a defendant who is charged with sexual assault's prior commission of sexual assaults.

Answer 104

Rule 414 is virtually the same as 413, but applies to child molestation cases.

Answer 105

It says that Rule 413 and 414 evidence can also be admitted in a civil case involving sexual assault or child molestation.

Answer 106

FRE 601, which says that every witness is competent to testify unless the FREs say otherwise. But in a civil case, state law governs competence regarding a claim or defense for which state law supplies the rule of decision.

Answer 107

Says that a witness must have personal knowledge of the matter.

Answer 108

That the witness be sworn to testify truthfully.

Answer 109

No. FRE 605.

Answer 110

Any party, including the one who called the witness. FRE 607.

Answer 111

Yes. Thomas v. Review Board of the Indiana Employment Security Division (1981) (Burger). The Court's decisions in _ Everson v. Board of Education\_ and Sherbert v. Verner had established that "[a] person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program."

Answer 112

Canon 3: The duties of judicial office take precedence over all other activities.

Answer 113

Alito delivered the opinion for the 5-4 majority. * The Court held that Congress intended for the RFRA to be read as applying to corporations since they are composed of individuals who use them to achieve desired ends. * Because the contraceptive mandate forces religious corporations to _fund what they consider abortion, which goes against their stated religious principles, or face significant fines_, it creates a _substantial burden_ that is _not the least restrictive method_ of satisfying the government's interests. * In fact, a less restrictive method exists in the form of the Department of Health and Human Services' exemption for non-profit religious organizations, which the Court held can and should be applied to for-profit corporations such as Hobby Lobby.

Answer 114

West Virginia State Board of Education v. Barnette (1943)(Jackson). In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. * The Court found that such a salute was a form of utterance and was a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to First Amendment values. * Writing for the majority, Justice Jackson argued that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

Answer 115

The government may only substantially burden the free exercise of religion of a person or organization if the government: 1. has a compelling interest to do so, and 2. is using the least restrictive means possible to further that compelling interest. In other words, RFRA imposes strict scrutiny on laws substantially burdening exercise of one's religion. _Substantial burden_ in the RFRA context occurs when an individual is required to choose between following his or her religious beliefs and receiving a governmental benefit or when an individual must act contrary to his or her religious beliefs to avoid facing legal penalties.

Answer 116

Smith v. Maryland (1979)(Blackman) The Court held that Fourth Amendment protections are only relevant if the individual believes that the government has infringed on the individual's reasonable expectation of privacy. This reasonable expectation of privacy does not apply to the numbers recorded by a pen register because those numbers are used in the regular conduct of the phone company's business, a fact of which individuals are aware. Because the Fourth Amendment does not apply to information that is voluntarily given to third parties, the telephone numbers that are regularly and voluntarily provided to telephone companies by their customers do not gain Fourth Amendment protections.

Answer 117

(2007)(Alito). By a 5-4 vote the Court ruled that Ledbetter's claim of gender discrimination in pay was time-barred by Title VII's limitations period. The opinion held that "current effects alone cannot breathe life into prior, uncharged discrimination." For a timely claim, Ledbetter would have needed to file within 180 days of a discriminatory salary decision; the Court did not consider it significant that paychecks she received during the 180 days prior to her claim were affected by the past discrimination.

Answer 118

Can the U.S. government require payment of Social Security taxes from those who religiously object to the receipt of the attached benefits? Yes. In a unanimous decision, Chief Justice Warren Burger wrote the majority opinion reversing and remanding. The Court held that the tax was not unconstitutional as applied because it satisfied strict scrutiny.

Answer 119

Employment Division, Department of Human Resources of Oregon v. Smith (1990) (Scalia). * The free exercise clause cannot be used to challenge a neutral law of general applicability * i.e., no matter how much a law burdens religion, it is constitutional under Smith so long as it does not single out religious behavior for punishemnt and was not motivated by a desire to interfere with religion In Smith, the court said that a law prohibiting consumption of peyote did not vioate the free exercise clause even though use was required by some Native American religions

Answer 120

As a district court judge, I am bound by Supreme Court and 9th Circuit precedent, regardless of my personal experience. Precedent, the law, and the facts are the drivers of judicial decisions.

Answer 121

The role of legal advocates is to zealously represent their clients, within the bounds of ethics and the law and without regard for the advocate’s personal feelings. The role of the judge is to act as a neutral arbiter of legal disputes and as a faithful adherent to precedent and the law without regard to the judge’s personal feelings. As a district court judge I am bound by Ninth Circuit and Supreme Court precedent.

Answer 122

* First, just as I was duty-bound to put aside my personal views in acting as an advocate on behalf of clients, I am duty-bound to disregard my personal views as a judge. As a tribal court judge I have not allowed the positions I have developed as an advocate to influence my judgments. * Second, as a judge I will faithfully adhere to precedent, the law, and my ethical duties under applicable statutes and the judicial canons, which includes a duty to recuse myself in instances where I have previously acted as an advocate in the matter or more broadly, where a party can reasonably question my impartiality. The ethical rules I am bound by as a tribal court judge are similar, and I have faithfully followed those rules in determining whether to inform the Northwest Intertribal Court System that I am available to hear a case and in determining whether to recuse myself.

Answer 123

Senator, I think diversity of all kinds is valuable in our judicial system. I believe it increases public confidence in the justice system and increased public confidence improves compliance with judicial decisions. If I am so fortunate as to be confirmed, I am duty bound to be the voice of the rule of law without regard to the outside considerations you mentioned; precedent, the law, and the record before me drives my decisions.

Answer 124

Senator, you raise important questions of policy that are the prerogative of the legislative branch, not the judicial branch. As a district court judge I am bound by precedent, and only the law and the facts drive my decisions. It would be inappropriate for me to opine on policy matters or let such matters influence my decision to the extent they are not embodied in precedent or the applicable statute before me.

Answer 125

The Sixth and Seventh amendments guarantee a right to trial by jury. I think the jury has an extremely important role to play in our system of government. It is one of the reasons why the right to jury trial was protected in the Bill of Rights. The Founders viewed it as an essential protector of liberty. I was proud to serve on a jury in a two-week criminal trial in state court and can say first-hand that everyone in that room understood their role and took it very seriously.

Answer 126

The President. The courts have a role in adjudicating justiciable cases and controversies relating to that responsibility and the separation of powers.

Answer 127

Many justices have traits that I admire. I think we all credit the first great chief justice John Marshall for shaping the judiciary in fundamental ways and emphasizing that we must never forget it is a constitution we are expounding. I admire Justices Ginsburg and Scalia for their passion for the law and the collegiality they demonstrated despite having very different views of the law at times. And if you might permit me to refer to judges, I admire many of my colleagues at the Northwest Intertribal Court System for their efficient management of cases, the respect they show to each and every litigant, and their faithful adherence to the law.

Answer 128

(1995)(Souter) A unanimous court held that the State Court's ruling to require private citizens who organize a parade to include a group expressing a message that the organizers do not wish to convey violates the First Amendment by making private speech subordinate to the public accommodation requirement. Such an action "violate[s] the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say."

Answer 129

(1995) (Souter) A unanimous court held that the State Court's ruling to _require private citizens who organize a parade to include a group expressing a message that the organizers do not wish to convey violates the First Amendment by making private speech subordinate to the public accommodation requirement_. * Such an action "violate[s] the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say."

Answer 130

No. In Branzburg v. Hayes (1972)(White), the first and only case to discuss such a privilege, the Court found that _requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment_. Since the case involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no Constitutional violation. _The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court_.

Answer 131

Cruzan by Cruzan v. Director, Missouri Dept of Health (1990)(Rehnquist), held that _while individuals enjoyed the right to refuse medical treatment under the Due Process Clause, incompetent persons were not able to exercise such rights_. * Absent "clear and convincing" evidence that an incompetent person desired treatment to be withdrawn, the Court found the State of Missouri's actions designed to preserve human life to be constitutional. * Because there was no guarantee family members would always act in the best interests of incompetent patients, and because erroneous decisions to withdraw treatment were irreversible, the Court upheld the state's heightened evidentiary requirements.

Answer 132

City of Boerne v. Flores (1997) (Kennedy). The Court held that the 14th Amendment's provision allowing Congress to pass laws to "enforce" it did not allow Congress to create new constitutional rights or expand the scope of rights. Instead, Congress may act only to prevent or remedy the violation of rights recognized by the courts. * such laws must be _narrowly tailored_ and proportionate and congruent to prevent and remedy the constitutional violations

Answer 133

Under Washington v. Glucksberg (1997) (Rehnquist), a fundamental right is one (1) deeply rooted in our nation’s history and traditions, and (2) can be clearly defined. Standard of review for most fundamental rights is scrict scrutiny. Eg: * right to vote * right to bear arms (2nd Amendment) * refusing medical care (due process clause) * right to travel (equal protection and privileges/immunities clause) * right to vote (privileges/immunities and 15th Amendment) * right to privacy (due process and equal protection) * right to marry (due process)

Answer 134

(1803)(Marshall). * Established judicial review of laws. Held that a provision of the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court’s original jurisdiction beyond that which Article III, Section 2, established. Congress did not have power to modify the Constitution through regular legislation because Supremacy Clause places the Constitution before the laws. The court therefore did not have jurisdiction. * Matters entirely within the executive's discretion are not justiciable but where the executive has a legal duty to act, the judiciary can provide a remedy, including a writ of mandamus.

Answer 135

(1954) (Warren). The Supreme Court held that “separate but equal” facilities are inherently unequal and violate the protections of the Equal Protection Clause of the Fourteenth Amendment. * The Court also held that the segregation of public education based on race instilled a sense of inferiority that had a hugely detrimental effect on the education and personal growth of African American children.

Answer 136

(1896) (Brown). Justice Brown conceded that the 14th Amendment intended to establish absolute equality for the races before the law, but held that separate treatment did not imply the inferiority of African Americans when the treatment was equal. * Justice Harlan's famous dissent stated that "the constitution is colorblind, and neither knows nor tolerates classes among citizens."

Answer 137

Dred Scott v. Sandford (1857) (Taney). The majority held that “a negro, whose ancestors were imported into [the U.S.], and sold as slaves,” whether enslaved or free, could not be an American citizen and therefore did not have standing to sue in federal court. Because the Court lacked jurisdiction, Taney dismissed the case on procedural grounds. * Taney further held that the Missouri Compromise of 1820 was unconstitutional and foreclosed Congress from freeing slaves within Federal territories. * The opinion showed deference to Missouri courts, which held that moving to a free state did not render Scott emancipated. * Finally, Taney ruled that slaves were property under the Fifth Amendment, and that any law depriving a slave owner of that property was unconstitutional.

Answer 138

Korematsu v. United States (1944) (Black). * During World War II, US military designed and enforced an order excluding all persons of Japanese ancestry from designated West Coast areas. Fred Korematsu was convicted of violating this military order and appealed the decision. * In 1944, in Korematsu v. United States, the Supreme Court upheld Korematsu’s conviction and the constitutionality of the exclusion order. The need to protect against espionage outweighed Korematsu's rights. Justice Black argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of "emergency and peril." * Has never been overruled. But government confessed error when Neal Katyal was SG.

Answer 139

(1873) Early case construing 14th Amendment. Involved a Louisiana law giving one company a monopoly over slaughterhouses for 25 years - all butchers had to use this one slaughterhouse. Butchers argued that this created "involuntary servitude," abridged "privileges and immunities," denied "equal protection of the laws," and deprived them of "liberty and property without due process of law" by depriving the right to pursue one's profession. * Court held that the involuntary servitude claim did not forbid limits on the right to use one's property. * The Court devoted most of its opinion to a narrow construction of the privileges and immunities clause, which was interpreted to apply to national citizenship, not state citizenship (where the right to pursue one's profession lives).

Answer 140

Lochner v. New York (1905)(Peckham). The court held that a New York law limiting the number of hours bakers could work interfered with the freedom of contract, and thus the Fourteenth Amendment's right to liberty afforded to employer and employee. The Court viewed the statute as a labor law; the state had no reasonable ground for interfering with liberty by determining the hours of labor.

Answer 141

The Supreme Court's interpretation of the "arising under" language from 28 USC 1331. Federal Q jxn cannot be acquired over a case unless an issue of federal law appears on the face of a properly pleaded complaint. The well-pleaded complaint rule is not satisfied by a defense based on federal law, including a defense of federal preemption, or by anticipation of such a defense in the complaint.

Answer 142

Meyer v. Nebraska (1923) held that a Nebraska statute outlawing the teaching of German violated the liberty protected by due process of the Fourteenth Amendment. * Liberty means more than freedom from bodily restraint. State regulation of liberty must be reasonably related to a proper state objective. * The legislature's view of reasonableness was subject to supervision by the courts. * The legislative purpose of the law was to promote assimilation and civic development. But these purposes were not adequate to justify interfering with Meyer's liberty to teach or the liberty of parents to employ him during a "time of peace and domestic tranquillity."

Answer 143

Passed in 2000, the Religious Land use and Institutionalized Persons Act was a legislative reaction to Boerne v. Flores' holding that RFRA was unconstitutional as applied to states. Requires strict scrutiny of government decisions concerning land use or affecting institutionalized persons that significantly burden religion. * Prohibits the imposition of burdens on the ability of prisoners to worship as they please and gives churches and other religious institutions a way to avoid zoning law restrictions on their property use. * Holt v. Hobbs (2015)(Alito) is the most recent RLUIPA case - SCOTUS unanimously ruled that an Arkansas prison policy which prohibited a Muslim prisoner from growing a short beard in accordance with his religious beliefs violated RLUIPA.

Answer 144

“No hints, no forecasts, no previews” of how I might rule in a future case.

Answer 145

(2008) (Scalia). DC's handgun ban in the home and the trigger-lock requirement violated the Second Amendment's right to bear arms. * Term “militia” is not confined to those serving in the military; at the time the term referred to all able-bodied men capable of being called to such service. * Did not answer the question of what level of scrutiny would apply and instead held the ban on in-home handgun possession wouldn't survive any level of scrutiny * There is no absolute right to handgun possession; the right is not to "carry any weapon whatsoever in any manner whatsoever and for whatever purpose"; and longstanding prohibitions on possession of firearms by felons and the mentally ill or in sensitive places still stand

Answer 146

(2010)(Alito). Held that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. The Court reasoned that rights that are "fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth Amendment.

Answer 147

Graham v. Fla., 560 U.S. 48, 58 (2010): To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. **The standard itself remains the same, but its applicability must change as the basic mores of society change**.’ ” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008)

Answer 148

(2012) (Roberts). Held that both the establishment clause and the free exercise clause are violated if a religious institution is held liable under an employment discrimination law for its decision to fire a minister. * Court should defer to religious school's judgment of who is a "minister" - otherwise it would violate the _free exercise clause_ by imposing an unwanted minister and would violate the _establishment clause_ by entangling the government in ecclesiastical decisions

Answer 149

(2009)(Thomas). The Court held that in an ADEA discrimination claim the burden of persuasion does not shift to the defendant employer to prove that it would have taken the action regardless of the plaintiff's age, even when evidence is introduced showing that age was one motivating factor in its decision. Rather, the Court held that the plaintiff must prove by a "preponderance of the evidence" that age was the "but-for" cause of the defendant's action.

Answer 150

(2013)(Kennedy). The Court held that the retaliation provision of Title VII requires the plaintiff to prove than an employer would not have taken an action but for the existence of improper motives. * The Court held that there must be a demonstrable causal link between the injury sustained and the wrong alleged. * A standard understanding of causation supports the view that an action cannot be the cause of an event unless it can be shown that the event would not have occurred without the action in question. Because there is no language in the retaliation provision that states otherwise, it must be assumed that Congress intended to support the standard understanding of causation. * The Court also held that lessening the causation standard would increase the number of frivolous claims and decrease the ability of employers and the courts to deal with the pressing issues of real workplace harassment.

Answer 151

28 USC 455

Answer 152

28 USC 144 Whenever a party makes and files a timely and sufficient affidavit that the judge has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Answer 153

The Individuals with Disabilities Education Act (IDEA) is a four-part piece of American legislation that ensures students with a disability are provided with Free Appropriate Public Education that is tailored to their individual needs. IDEA was previously known as the Education for All Handicapped Children Act (EHA) from 1975 to 1990. In 1990, the United States Congress reauthorized EHA and changed the title to IDEA (Public Law No. 94-142). Overall, the goal of IDEA is to provide children with disabilities the same opportunity for education as those students who do not have a disability.

Answer 154

Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) (Rehnquist) actually involved IDEA's predecessor statute, the Education of All Handicapped Children Act of 1975, but created the test we use under the IDEA: 1. "First, has the State complied with the procedures set forth in the Act? And 2. second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress, and the courts can require no more."

Answer 155

Vermont Agency of Natural Resources v. United States ex rel. Stevens (2000). In a 7-2 opinion delivered by Justice Antonin Scalia, the Court held that a private individual has standing to bring suit in federal court against "any person" on behalf of the United States under the False Claims Act, but that the False Claims Act does not subject a state or state agency to liability in such actions. The Court concluded that the False Claims Act does not include states as "persons" who can be sued under the law.

Answer 156

Garcia v. San Antonio Metro. Transit Authority (1984) (Blackmun). SAMTA argued that it was providing a "traditional" governmental function, which exempted it from minimum wage and overtime requirements according to the doctrine of federalism established in National League of Cities v. Usery (1976), in which SCOTUS held that the Commerce Clause does not empower Congress to enforce such requirements against the States "in areas of traditional governmental functions." * In a 5-to-4 decision, the Court held that the guiding principles of federalism established in National League of Cities v. Usery were unworkable and that SAMTA was subject to Congressional legislation under the Commerce Clause. * The Court found that rules based on the subjective determination of "integral" or "traditional" governmental functions provided little or no guidance in determining the boundaries of federal and state power. The Court argued that the structure of the federal system itself, rather than any "discrete limitations" on federal authority, protected state sovereignty.

Answer 157

Plyler v. Doe (1982) (Brennen). Yes. Denying undocumented children of illegal immigrants the right to attend public school constitutes discrimination based on alienage that violates the Equal Protection Clause of the Fourteenth Amendment. * The Court found that any state restriction imposed on the rights afforded to children based on their status as illegal aliens must be examined under an _intermediate scrutiny_ standard to determine whether it furthers a _"substantial" government interest_.

Answer 158

5-4 (Gorsuch). The Federal Arbitration Act instructs “federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.” Relying on that rule, the Court held that employers can require employees to submit all work-related disputes to individual arbitration. It rejected the argument that the NLRA creates a right to group arbitration and thus prohibits such a requirement. It thus rejected the argument that the NLRA in this way trumps the FAA. * The Court’s decision resolves a circuit split on whether employers commit an unfair labor practice by requiring employees to agree to arbitrate claims arising out of their employment on an individual basis only.

Answer 159

5-4 (Kagan). Affirmed the 9th circuit and held that 18 U. S. C. §16(b), which defines “violent felony” for purposes of the Immigration and Nationality Act’s removal provisions, is unconstitutionally vague. The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. An aggravated felony includes “a crime of violence.” One provision of the INA defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a _substantial risk_ that physical force against the person or property of another may be used in the course of committing the offense.” The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony” resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

Answer 160

Roberts (5-4). Partisan gerrymandering claims are not justiciable because they present a political question beyond the reach of the federal courts. * Federal courts are charged with resolving cases and controversies of a _judicial nature_. In contrast, Qs of a _political nature_ are “nonjusticiable,” and the courts can't resolve such questions. Partisan gerrymandering has existed since prior to the US, and, aware of this occurrence, the Framers chose to empower state legislatures, “expressly checked and balanced by the Federal Congress” to handle these matters. * While federal courts can resolve “a variety of questions surrounding districting,” including racial gerrymandering, it is beyond their power to decide when political gerrymandering gone too far. In the absence of any “limited and precise standard” for evaluating partisan gerrymandering, federal courts cannot resolve such issues. * In Gill v. Whitford (2018) established that a plaintiff w/ a partisan gerrymandering claim based on a theory of vote dilution must establish standing by showing he lives in an allegedly “cracked” or “packed” district.

Answer 161

Cross at intersection did not violate the Establishment Clause. Even if the meaning of a monument was originally religious, that meaning can change or expand through time. The cross is a symbol of World War I and removing it would not be neutral or advance First Amendment ideals of respect and tolerance.

Answer 162

Free exercise/strict scrutiny case. Montana SC's application of the MT Constitution's no-aid rule to prohibit families from using scholarships for private school tuition at religious schools discriminated against religious schools and the families in violation of the Free Exercise Clause, because it “impose[d] special disabilities on the basis of religious status” and “condition[ed] the availability of benefits upon a recipient’s willingness to surrender [its] religiously impelled status.”

Answer 163

_Depends on the facts & balancing of the 5th/14th Amendment rights of private property owners with the 1st Amendment rights of all citizens_, and SCOTUS has said that "the drawing of lines to assure due protection of both" are not always easy. In Lloyd Corp., Ltd. v. Tanner (1972) (5-4), SCOTUS held that a shopping center owner's prohibition on the distribution of handbills within a shopping center did not violate the First Amendment because the mall retained its private character even though it was open to the public. * But in PruneYard Shopping Ctr. v. Robins, (1980), the court held that the CA Constitution's provision of more expansive free speech rights than those conferred by the Federal Constitution permitting individuals to exercise free speech and petition rights in privately owned shopping centers did not violate the owner's free speech rights under the 1st and 14th Amendments

Answer 164

SIR. Strict scrutiny, intermediate review, rational basis.

Answer 165

Rights not expressly enumerated in the Constitution, such as: * refusing medical care (due process clause) * right to travel (equal protection and privileges/immunities clause) * right to vote (privileges/immunities and 15th Amendment) * right to privacy (due process and equal protection) * right to marry (due process)

Answer 166

Michigan v. Long (1983). Refers to the standard used by the Supreme Court to determine if it will hear a case from a state court. The Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. It will _refuse jurisdiction if it finds adequate and independent nonfederal grounds to support the state decision_.

Answer 167

A claim that arises under the Constitution, treaties, or laws of the United States. (includes not only federal statutes but federal common law—i.e., case law interpreting federal statutes.) 28 USC § 1331. 'Arises under' means that either federal law creates the cause of action or the plaintiff's complaint requires resolution of a substantial question of federal law.

Answer 168

The Court held that the employment discrimination claims of two elementary school teachers at Catholic schools qualified for the Hosanna-Tabor ministerial exception where although they were not given the title of minister and had less religious training, _the religious education and formation of students was the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools relied to do that work were at the core of their mission_. * According to the Court, judicial review of the way in which religious schools discharged those responsibilities would have undermined the independence of religious institutions in a way that the First Amendment did not tolerate.

Answer 169

Under the rational basis test, the law will be upheld as constitutional so long as it is _rationally related_ to a _legitimate_ government interest. * Burden of proof is on the challenger to show that there is no conceivable legitimate purpose or that the law is not rationally related to that purpose * e.g. Nebbia v NY (1934) - To combat the effects of the Great Depression, New York adopted a Milk Control Law in 1933 which established a board to set a minimum retail price for milk. Since the price controls were not "arbitrary, discriminatory, or demonstrably irrelevant" to the policy adopted by the legislature to promote the general welfare, the regulation was constitutional.

Answer 170

Under the intermediate scrutiny test, the law will be held unconstitutional unless it is substantially related to an important government interest. * the burden of proof is on the government to show that the law is substantially related to an important government interest * applies to classifications based on quasi suspect classes (gender, legitimacy)

Answer 171

The law is unconstitutional unless it is narrowly tailored to achieve a compelling governmental interest. This means that there are no less restrictive alternatives that could accomplish the government's purpose. * the burden of proof is on the government to show the law is narrowly tailored to achieve a compelling governmental interest * applies to categorization of suspect classes (race, religion, alienage, national origin) - determined based on

Answer 172

A penumbra is a right tangent to or implicated by another right that is explicit in the bill of rights. SCOTUS in Griswold v Connecticut (1965) found that the right of privacy was a penumbra implicated by other explicit rights in the Constitution – the bill of rights, first 10 amendments.

Answer 173

SCOTUS set the standard for expert testimony admissibility in *Daubert v. Merrell Dow Pharmaceuticals, Inc*. (1993). The Daubert guidelines consist of five factors of consideration (TRESA): 1. Whether the theory or technique in question can be and has been _tested_ 2. Whether it has been subjected to _peer review and publication_ 3. Its known or potential _error rate_ 4. The existence and maintenance of _standards_ controlling its operation 5. Whether it has attracted widespread _acceptance_ within a relevant scientific community These criteria intend to prevent unreliable or otherwise “junk science” from being heard as evidence in an expert’s substantive testimony. * The burden is on the proponent of the testimony to establish its admissibility by a _preponderance of evidence_.

Answer 174

Luce v. United States, 469 U.S. 38, 40 n.2 (1984): A motion in limine is “any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.” Usually this is a pretrial motion to limit or exclude evidence.

Answer 175

Rule 803. Exceptions to the Rule Against Hearsay The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. (3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will. (4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause. (5) Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by — or from information transmitted by — someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness. (7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) neither the opponent does not show that the possible source of the information nor or other circumstances indicate a lack of trustworthiness. (8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) neither the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness. (9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty. (10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if: (A) the testimony or certification is admitted to prove that (i) the record or statement does not exist; or (ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection. (11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization. (12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate: (A) made by a person who is authorized by a religious organization or by law to perform the act certified; (B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and (C) purporting to have been issued at the time of the act or within a reasonable time after it. (13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker. (14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if: (A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it; (B) the record is kept in a public office; and (C) a statute authorizes recording documents of that kind in that office. (15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose — unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document. (16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established. (17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations. (18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if: (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit. (19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history. (20) Reputation Concerning Boundaries or General History. A reputation in a community — arising before the controversy — concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation. (21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character. (22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if: (A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea; (B) the conviction was for a crime punishable by death or by imprisonment for more than a year; (C) the evidence is admitted to prove any fact essential to the judgment; and (D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant. The pendency of an appeal may be shown but does not affect admissibility. (23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter: (A) was essential to the judgment; and (B) could be proved by evidence of reputation. (24) [Other Exceptions .] [Transferred to Rule 807.]

Answer 176

While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, _the law must be applied in a manner that is neutral toward religion_. * State law at the time afforded storekeepers some latitude to decline to create specific messages they considered offensive, including cakes with decorations that demeaned gay persons or gay marriages. * That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. * For these reasons, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment Free Exercise clause not to base laws or regulations on hostility to a religion or religious viewpoint.

Answer 177

* Normally, the reports of the _congressional committees that considered the proposed legislation and recommended its enactment_ are considered the best source for determining the intent behind a law. * Other documents generated prior to enactment include statements made on the floor of Congress in legislative debate, statements or testimony at committee hearings, and earlier or alternative versions of the bill. * Statements made and reports written after enactment are usually found to be less persuasive, and are not considered part of the “legislative history.”

Answer 178

Relying on the liberty protected in the 14th Amendment's due process clause, the court held that women have a fundamental right to abortion meriting a strict scrutiny analysis * Right to abortion not absolute - adopted a trimester approach * 1st: no prohibition, only regulation the same as regulation of other medical procedures * 2nd: no prohibition but regulation in ways reasonably related to maternal health * 3rd: can outlaw and regulate except if necessary to preserve life/health of mother

Answer 179

The case considered a Pennsylvania law that placed some restrictions on access to abortion. The court upheld Roe, focusing on the importance of stare decisis. * To have true liberty, the court indicated, people need to know what their rights are. Roe might or might not have been right when it was decided, but it had been an important part of the legal and cultural fabric of the country for nearly two decades. * Whereas Roe tethered the right to abortion to privacy, Casey seemed to root the right in a conception of decisional autonomy and an equality component – the ability of women to participate fully in the social and economic life of the nation depends on women’s ability to control their own reproductive lives * Abandoned trimester approach and strict scrutiny, instead holding that states may not impose an undue burden on a woman’s right to seek abortion before viability. So a 24-hour waiting period was upheld, spousal consent was not

Answer 180

Granted injunctive relief against a CA regulation that had the effect of restricting at-home Bible studies and prayer meetings by limiting all gatherings in private homes to no more than 3 households at a time. The 5-4 per curiam opinion followed the same divisions as Roman Catholic Diocese of Brooklyn v. Cuomo (2020) and South Bay United Pentecostal Church v. Newsom (2021), which had involved limits on gatherings within churches. Court observed that CA was treating secular and religious activities differently, by permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting event and concerts that brought together more than three households at a time. * First, it said that governmental regulations “are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.” * Second, the comparability of secular and religious activities should be determined “with the risk various activities pose, not the reasons why people gather.” * Third, the government has the burden to satisfy strict scrutiny: “narrow tailoring requires the government to show” that less restrictive means would not address the spread of the virus or that religious activities are more dangerous than secular counterparts. * Fourth, the government cannot moot a case simply by changing current regulations if harsher regulations remain a possibility.

Answer 181

An employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act. * Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. * Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. * The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons, but legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts.

Answer 182

Marsh v. Chambers (1983). The Nebraska Legislature begins each of its sessions with a prayer by a chaplain paid by the State with the legislature's approval. This practice does not violate the Establishment Clause. * The practice of opening sessions of Congress with prayer has continued without interruption for almost 200 years ever since the First Congress drafted the First Amendment, and a similar practice has been followed for more than a century in Nebraska and many other states. * While historical patterns, standing alone, cannot justify contemporary violations of constitutional guarantees, historical evidence in the context of this case sheds light not only on what the drafters of the First Amendment intended the Establishment Clause to mean but also on how they thought that Clause applied to the chaplaincy practice authorized by the First Congress. * In applying the First Amendment to the states through the Fourteenth Amendment, it would be incongruous to interpret the Clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government. In light of the history, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.

Answer 183

A Texas law that criminalized same-sex sodomy was unconstitutional under the liberty component of the Fourteenth Amendment’s Due Process Clause - liberty from unwanted governmental intrusion into the private home. * The law branded homosexuals as presumptive criminals, making it much more difficult for them to be treated like other members of society. * Disputed the Bowers court’s view that the country had historically criminalized gay sodomy; early anti-sodomy laws were not directed specifically at homosexual conduct but at all non-procreative sex. * Laws targeting homosexual sodomy—but not heterosexual sodomy—were “born of animosity” toward homosexuals and therefore are “an invitation to subject homosexual persons to discrimination both in the public and the private sphere.”

Answer 184

The Supreme Court is considering a petition for certiorari right now and it would not be appropriate for me to opine. * University of CA v. Bakke (1978) - set-aside of minority seats for medical school violated equal protection. School's interest in having a diverse study body was probably compelling but the set-aside was not necessarily to achieve it * Grutter v. Bollinger (2003) - UM Law School's policy in looking at entire admissions file and considering diversity as a plus did not violate equal protection. A diverse student body is a compelling govt interest and individualized review helped ensure that race was not the defining feature * Gratz v Bollinger (2003) - UM undergrad's points system with auto 20 points for minorities violated equal protection * Fisher v UT (2016) - same result as Grutter

Answer 185

The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), enacted to regulate crisis pregnancy centers—pro-life centers that offer pregnancy-related services to require them to provide notices that California provides free or low-cost services, including abortions, violates the First Amendment. Content-based laws “target speech based on its communicative content” and “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” * Speech is not unprotected merely because it is uttered by professionals. The Court has afforded less protection for professional speech in 2 circs—where a law requires professionals to disclose factual, noncontroversial information in their “commercial speech,” and where States regulate professional conduct that incidentally involves speech.

Answer 186

Illinois law permits public employees to unionize. If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees, even those who do not join. Nonmembers are required to pay what is generally called an “agency fee,” i.e., a percentage of the full union dues. The state law authorizing agency fees from nonconsenting public-sector employees violates the First Amendment bc it forces free and independent individuals to endorse ideas they find objectionable. * Agency fees cannot be upheld on the ground that they promote an interest in “labor peace” or preventing free riders. Experience shows that unions can be effective even without agency fees. * Overruled Abood * States and public-sector unions may no longer extract agency fees from nonconsenting employees.

Answer 187

Deference to an agency's _own ambiguous regulation_ (as opposed to the agency's interpretation of a _Congressional statute_). Reaffirmed/clarified in Kisor v. Wilkie (2019). The new Kisor five-step doctrine for deference to agency regulatory interpretations: 1. The regulatory provision must be “genuinely ambiguous” after applying all of the traditional tools of interpretation (Chevron step one). 2. The agency’s regulatory interpretation must be “reasonable,” and “[t]hat is a requirement an agency can fail” (Chevron step two). 3. The agency’s regulatory interpretation must be the agency’s “authoritative” or “official position,” which means it must “at the least emanate from [the agency head or equivalent final policymaking] actors, using those vehicles, understood to make authoritative policy in the relevant context” 4. The agency’s regulatory interpretation must implicate the agency’s substantive expertise 5. The agency’s regulatory interpretation must reflect “fair and considered judgment” — not an ad hoc litigating position or otherwise an interpretation that causes regulated entities unfair surprise.

Answer 188

6 major exceptions - SPACES 1. Search incident to lawful arrest - wingspan 2. Plain view exception 3. Automobile exception - those areas that might contain evidence of the type suspected to be present 4. Consent 5. Emergencies/hot pursuit 6. Stop and frisk - suspect armed and dangerous

Answer 189

Substantive due process uses the 14th Amendment’s Due Process Clause to protect un-enumerated substantive rights related to deprivation of life/liberty/property. The due process clause has been found to incorporate provisions of the Bill of Rights that are deemed fundamental to to protect those rights from state interference. * Lochner (1905) - invalidated New York law setting labor limits, saying the right to contract could be found in the liberty component of the due process clause - "life _liberty_ or property" - SDP alive * West Coast Hotel v. Parrish (1937) - upheld minimum wage law for women - SDP dead * Griswold v Connecticut (1965) - court relies on 9th amendment but it marked the revival of SDP

Answer 190

Classifications subject to intermediate scrutiny (laws that are substantially related to an important govt interest) Eg: 1. Gender 2. Illegitimacy

Answer 191

I don’t have an opinion on that, Senator, and in light of the judicial canons and the fact that my personal views cannot and will not play a role in my judicial decisions, I do not think it would be appropriate to discuss any personal views I may have.

Answer 192

The four purposes of punishment as incorporated into the Sentencing Guidelines seem to incorporate both, as a judge is to consider the need for a sentence to provide punishment as well as rehabilitation.

Answer 193

I hesitate to use a label for my judicial approach since scholars have defined these differently. As a judge, my approach has been to consider the arguments of the parties and faithfully apply precedent, the law, and the facts. If the text of the law is clear, my job is done, but if it is not, I look to statutory context and the canons of construction

Answer 194

Since you are dealing with speech this deals with a fundamental right that would trigger strict scrutiny. A court would analyze the issue by evaluating whether the government has proven that it has a compelling interest in the law and that the means it has chosen are narrowly tailored to achieve that interest.

Answer 195

* Relying on the liberty protected in the 14th Amendment's due process clause, the court held that women have a fundamental right to abortion meriting a strict scrutiny analysis * Right to abortion not absolute - adopted a trimester approach * 1st: no prohibition, only regulation the same as regulation of other medical procedures * 2nd: no prohibition but regulation in ways reasonably related to maternal health * 3rd: can outlaw and regulate except if necessary to preserve life/health of mother

Answer 196

* **As to state laws**: * a _neutral law_ of general applicability only has to meet _rational basis_ review, but * _laws that are directed at religious practices_ or government actions based on religious animus have to meet _strict scrutiny_ * As to federal laws, under RFRA courts must use strict scrutiny in analyzing free exercise clause claims, even as to laws of neutral applicability

Answer 197

* In Bob Jones Univ v US (1983), SCOTUS held that the denial of tax-exempt status to private schools that racially discriminated because of sincere religious beliefs did not violate the free exercise clause. Govt has a fundamental interest in eradicating racial discrimination in education that substantially outweighs whatever burden denial of tax benefits placed on petitioners' religious beliefs *

Answer 198

That is a question that may come before me so it would be inappropriate for me to respond to that question

Answer 199

Thank you Senator. I would take advantage of every resource available to me through the federal judicial center, as well as the materials put out by the US Sentencing Commission and the Criminal Law Committee. And the WDWA assigns highly experienced judges to be mentors to new judges, so that would be a resource I would certainly take advantage of as well.

Answer 200

The text is the best reflection of the drafters' intent, but the court has looked to legislative history in interpreting the constitution * INS v Chadha - bicameralism and presentment in considering constitutionality of legislative veto * Rucho v Common Cause - in determining that partisan gerrymandering was a political question

Answer 201

1. I would take my cues from the Supreme Court regarding where to look. Since laws are written for the people, the text is very important. I would first look to the text of the law and the statutory context. I might also look to time-period dictionaries, how the term may have been used in other federal or state laws at the time, and legislative history (minutes from Constitutional Convention, federalist papers).

Answer 202

* John Marshall * O'Connor * NICS judges

Answer 203

1. Under the establishment clause, government cannot prefer one religion over others. If a law is neutral (non-discriminatory among religions), it is subject to the Lemon test: (1) law must have a secular government purpose, (2) its principal effect must be one that neither advances nor inhibits religion, and (3) the law must not foster an excessive government entanglement with religion 2. Under the free exercise clause, a neutral law of general applicability that burdens religion is not unconstitutional unless it fails rational basis review, but a law that is not neutral or of general applicability is unconstitutional unless it survives strict scrutiny. 3. *Note that under RFRA, even a _federal_ law of general applicability cannot substantially burden religious freedom unless it survives strict scrutiny. RFRA doesn’t apply to _states_ per City of Boerne v. Flores, but RLUIPA does with respect to land use laws and laws affecting institutionalized persons.*

Answer 204

1. Senator, yes, in limited circumstances. For example, courts can issue nationwide injunctions under FRCP 65. In the 9^th Circuit nationwide injunctions may issue only where necessary and to the extent necessary to accord the plaintiff relief.

Answer 205

Illinois law permits public employees to unionize. If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees, even those who do not join. Nonmembers are required to pay what is generally called an “agency fee,” i.e., a percentage of the full union dues. The state law authorizing agency fees from nonconsenting public-sector employees violates the First Amendment bc it forces free and independent individuals to endorse ideas they find objectionable. * Agency fees cannot be upheld on the ground that they promote an interest in “labor peace” or preventing free riders. Experience shows that unions can be effective even without agency fees. * Overruled Abood * States and public-sector unions may no longer extract agency fees from nonconsenting employees.

Answer 206

Deference to an agency's _own ambiguous regulation_ (as opposed to the agency's interpretation of a _Congressional statute_). Reaffirmed/clarified in Kisor v. Wilkie (2019). The new Kisor five-step doctrine for deference to agency regulatory interpretations: 1. The regulatory provision must be “genuinely ambiguous” after applying all of the traditional tools of interpretation (Chevron step one). 2. The agency’s regulatory interpretation must be “reasonable,” and “[t]hat is a requirement an agency can fail” (Chevron step two). 3. The agency’s regulatory interpretation must be the agency’s “authoritative” or “official position,” which means it must “at the least emanate from [the agency head or equivalent final policymaking] actors, using those vehicles, understood to make authoritative policy in the relevant context” 4. The agency’s regulatory interpretation must implicate the agency’s substantive expertise 5. The agency’s regulatory interpretation must reflect “fair and considered judgment” — not an ad hoc litigating position or otherwise an interpretation that causes regulated entities unfair surprise.

Answer 207

6 major exceptions - SPACES 1. Search incident to lawful arrest - wingspan 2. Plain view exception 3. Automobile exception - those areas that might contain evidence of the type suspected to be present 4. Consent 5. Emergencies/hot pursuit 6. Stop and frisk - suspect armed and dangerous

Answer 208

Substantive due process uses the 14th Amendment’s Due Process Clause to protect un-enumerated substantive rights related to deprivation of life/liberty/property. The due process clause has been found to incorporate provisions of the Bill of Rights that are deemed fundamental to to protect those rights from state interference. * Lochner (1905) - invalidated New York law setting labor limits, saying the right to contract could be found in the liberty component of the due process clause - "life _liberty_ or property" - SDP alive * West Coast Hotel v. Parrish (1937) - upheld minimum wage law for women - SDP dead * Griswold v Connecticut (1965) - court relies on 9th amendment but it marked the revival of SDP

Answer 209

Classifications subject to intermediate scrutiny (laws that are substantially related to an important govt interest) Eg: 1. Gender 2. Illegitimacy

Answer 210

I don’t have an opinion on that, Senator, and in light of the judicial canons and the fact that my personal views cannot and will not play a role in my judicial decisions, I do not think it would be appropriate to discuss any personal views I may have.

Answer 211

A taking occurs where there is a: 1. possessory taking (govt confiscates or physically occupies property) or 2. regulatory taking (where the regulation leaves no reasonable economically viable use of the property). Relevant factors to determine whether there has been a regulatory taking include: 1. economic impact of the regulation on the party protesting it 2. extent to which the regulation interferes with distinct investment expectations 3. the nature of the governmental action, eg a physical occupation of the property

Answer 212

1. Inappropriate for me to answer bc it may come before me 2. Would evaluate 8th amendment cruel and unusual punishment case based on precedent and the record before me relating to the particular solitary confinement practice at issue

Answer 213

FRCP 65 governs injunctions. * The Ninth Circuit has held that although “there is no bar against ... nationwide relief in federal district court or circuit court,” such broad relief must be “_necessary to give prevailing parties the relief to which they are entitled_.” * “[N]ationwide injunctive relief may be **_in_**appropriate where a regulatory challenge involves important or difficult questions of law, which might benefit from development in different factual contexts and in multiple decisions by the various courts of appeals.” California v. Azar, 911 F.3d 558, 582–84 (9th Cir. 2018)

Answer 214

A two-step test, which 1. asks whether the challenged law burdens conduct protected by the Second Amendment based on a ‘historical understanding of the scope of the [Second Amendment] right" and 2. if so, directs courts to apply an appropriate level of scrutiny. United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). The appropriate level of scrutiny to apply to a Second Amendment challenge of a law that does not implicate the core Second Amendment right is intermediate scrutiny.

Answer 215

* **As to state laws**: * a _neutral law_ of general applicability only has to meet _rational basis_ review, but * _laws that are directed at religious practices_ or government actions based on religious animus have to meet _strict scrutiny_ * As to federal laws, under RFRA courts must use strict scrutiny in analyzing free exercise clause claims, even as to laws of neutral applicability

Answer 216

* In Bob Jones Univ v US (1983), SCOTUS held that the denial of tax-exempt status to private schools that racially discriminated because of sincere religious beliefs did not violate the free exercise clause. Govt has a fundamental interest in eradicating racial discrimination in education that substantially outweighs whatever burden denial of tax benefits placed on petitioners' religious beliefs *

Answer 217

That is a question that may come before me so it would be inappropriate for me to respond to that question

Answer 218

Thank you Senator. I would take advantage of every resource available to me through the federal judicial center, as well as the materials put out by the US Sentencing Commission and the Criminal Law Committee. And the WDWA assigns highly experienced judges to be mentors to new judges, so that would be a resource I would certainly take advantage of as well.

Answer 219

* The maxim that “ignorance of the law is no excuse" normally applies where a defendant possesses the requisite mental state in respect to the _elements of the crime_ but claims to be unaware of a _law forbidding his conduct_. * That maxim does not normally apply where a defendant's mistaken impression about a collateral legal question causes him to misunderstand his conduct's significance, thereby negating an element of the offense. * Rehaif's status as an alien “illegally or unlawfully in the United States” refers to what commentators call a “collateral” question of law, and a mistake regarding that status negates an element of the offense. Rehaif v. United States, 139 S. Ct. 2191 (2019)

Answer 220

Lemon test from Lemon v. Kurtzman - the govt violates the establishment clause if: 1. the govt's primary purpose is to advance religion 2. the principal effect is to aid or inhibit religion 3. there is excessive govt entanglement with religion

Answer 221

Court is to look at history of rights, whether rooted in the common law, and are necessary for the purposes of ordered liberty Recent cases - Obergefell - looked at history of marriage in the country and determined that that should not be limited to an opposite sex institution

Answer 222

LIEP 1. The movant has shown a _likelihood of success on the merits_ 2. There is a likelihood that the movant will suffer _irreparable harm_ in absence of a preliminary injunction. 3. The balance of _equities_ tips in the movant’s favor. 4. The injunction is in the _public interest_. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)

Answer 223

Brought under section 1983 for violation of 8th Amendment rights * Deliberate indifference to the serious medical needs of an inmate is “cruel and unusual punishment” under the Eighth Amendment. * To demonstrate deliberate indifference, “plaintiffs must show that [prison officials] were (a) subjectively aware of the serious medical need and (b) failed to adequately respond.” * An inmate challenging denial of treatment must allege that the denial “was medically unacceptable under the circumstances,” and made “in conscious disregard of an excessive risk to [the inmate]'s health.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015)

Answer 224

* The right to free speech can be limited if necessary for maintaining security or some other important governmental interest * The right to freedom of association * The right to privacy - Prisoners have no Fourth Amendment right to freedom from unreasonable search and seizure.

Answer 225

Yes. Under this presumption, courts should, if possible, interpret ambiguous statutes to avoid rendering them unconstitutional. * “canon of constitutional avoidance” — the idea that courts should try to interpret statutes so as to avoid raising difficult questions of constitutional law * separate canon that favors avoiding actual unconstitutionality — the longstanding principle that courts should not lightly interpret a statute in a way that makes it unconstitutional if some other interpretation is available

Answer 226

* Louisiana’s Act 620, which is almost word-for-word identical to the Texas “admitting privileges” law at issue in Whole Woman’s Health v. Hellerstedt, requires any doctor who performs abortions to hold “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced.” * To determine if this imposes an undue burden, courts weigh the law’s “asserted benefits against the burdens” it imposes on abortion access. * The evidence supported the District Court’s conclusion that Act 620 was unconstitutional because the admitting-privileges requirement would drastically reduce the number and geographic distribution of abortion providers, making it impossible for many women to obtain a safe, legal abortion in the State and imposing substantial obstacles on those who could.

Answer 227

* The core inquiry in 4th Amendment search and seizure questions is reasonableness - When an individual “seeks to preserve something as private,” and his expectation of privacy is reasonable, we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause. * In Riley v California, the Supreme Court held that officers could not search cell phones without a warrant as part of searches incident to lawful arrests * The third party doctrine is still evolving, but for example in Carpenter v US the Supreme Court held that law enforcement must obtain a warrant for cell site location records

Answer 228

My understanding is that the Bill of Rights continues to operate and protect our liberties in times of crises but must be weighed against government interests and military discretion in times of emergency.

Answer 229

* The federal government cannot commandeer the state, as for example what it did in requiring states to have anti-gambling laws that the Supreme Court invalidated in the PASPA case. * As another example, in the federal govt’s commerce clause authority it can generally not regulate intrastate non-activity or instrastate economic activity that doesn’t discriminate against insterstate commerce or otherwise run afoul of interstate commerce

Answer 230

* We have previously held that individuals do not have a Second Amendment right to carry concealed weapons in public. Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc). * The question presented in this case is whether individuals have a right to carry weapons openly in public. In order to answer that question, we ask, first, whether Hawai‘i’s law affects conduct protected by the Second Amendment. If so, we then determine if the law can survive the appropriate level of scrutiny. * After careful review of the history of early English and American regulation of carrying arms openly in the public square, we conclude that Hawai‘i’s restrictions on the open carrying of firearms reflect longstanding prohibitions and that the conduct they regulate is therefore outside the historical scope of the Second Amendment. Accordingly, Hawai‘i’s firearms-carry scheme is lawful.

Answer 231

* In US v. Guest (1966), the Supreme Court expressly declared that there is a fundamental right to interstate travel. It is subject to strict scrutiny review. * Ever since the Articles of Confederation, the right to free movement among the states has been acknowledged as a basic liberty, and is historically seen as a method of breaking down state provincialism and facilitating creation of a true federal union * Facilitates federalism interests as well - the right to relocate to a place with a different political climate and environment * The same considerations aren't present with foreign travel; the foreign policy aspects of international travel make it different, and it is subject to rational basis review. Matters relating to the conduct of foreign relations are so exclusively entrusted to the political branches as to be largely immune from judicial inquiry or interference (eg in Zemel v Rusk (1965) the Supreme Court upheld the constitutionality of the secretary of state's refusal to issue passport for travel to Cuba around the time of the Cuban missile crisis)

Answer 232

That analysis would involve a factual inquiry into whether the state had created a property right protected by the 14^th amendment, and the court determines this based on the expectations created by the relevant state action.

Answer 233

* Not without authority from statutes or the constitution. * Under the Anti-Injunction Act, 28 U.S.C. § 2283 (2008) (hereinafter “AIA”), federal courts are statutorily prohibited from enjoining state court proceedings except in three narrowly defined cases. * The first exception is if Congress expressly authorizes the enjoinment. 28 U.S.C. § 2283. * The second exception occurs in a case where it is necessary for the federal court to aid its jurisdiction. Id. * The third exception occurs in cases where it is necessary for the federal court to protect or effectuate its judgments. Id.

Answer 234

The separation of powers protect liberty. If you didn't have separation of powers, you could have a great bill of rights, but no mechanism to enforce it without separation of powers. In other words the concentration of power allows a tyranny that could ignore the bill of rights without reprise.

Answer 235

* _content-based_ restrictions of speech must meet _strict scrutiny_, while _content-neutral_ regulation only need meet _intermediate scrutiny_ * content-neutral= _viewpoint neutral_ (no regulation based on ideology) AND _subject matter neutral_ (no regulation based on the topic of the speech) * there might be secondary effects considerations that render a non-neutral reg neutral, eg banning nude dancling to eliminate gang activity associated with it, not the dancing

Answer 236

The govt may regulate speech in public forums only if 3 requirements are met: 1. the regulation must be content neutral unless the content restriction is justified by strict scrutiny 2. must be a reasonable time, place, manner restriction that serves an important govt interest and leaves open adequate alternative forums for speech 3. a licensing or permit system must serve an important purpose and provide clear criteria to the licensing authority leaving almost no discretion This does NOT need to be the least restrictive alternative

Answer 237

Freedom of association is a fundamental right, but infringements on the right may be justified by compelling state interests. Freedom of association still protects a right to discriminate: * if the activity is an intimate association OR * where discrimination is integral to expressive activity (ag Hurley v Irish-American Gay Lesbian and Bisexual Group of Bostson, Boy Scouts of America v. Dale - would send message that Boy Scouts accepts homosexual conduct) In Roberts v. US Jaycees (race and sex discrimination), the court held the government's interest in prohibiting discrimination was compelling an unrelated to suppression of any message