8/6/21

Question 1

What are the primary sources of a federal district court’s jurisdiction?

Answer 1

1. 28 USC 1331 (federal question),
2. 28 USC 1332 (diversity),
3. 28 USC 1367 (supplemental), and
4. 28 USC 1441 (removal).

Question 2

Ex Parte Young, 209 US 123 (1908)

Answer 2

Holds that sovereign immunity does not extend to suits for prospective injunctive relief against state officers in their official capacities

Question 3

Apprendi v. New Jersey, 530 U.S. 466 (2000) (Stevens)

Answer 3

Held that the Sixth Amendment right to a jury trial, incorporated against the states through the Fourteenth Amendment, prohibited judges from enhancing criminal sentences beyond statutory maximum based on facts other than those decided by the jury beyond a reasonable doubt.

Question 4

When does a court have personal jurisdiction over a defendant?

Answer 4

• When the defendant consents or is tagged (Pennoyer v. Neff) or
• if the coercive exercise of jurisdiction complies with the Due Process Clause.
• General jurisdiction–jurisdiction over a case unconnected to the defendant’s case-specific actions in the state–is generally reserved to residents of a State, but also extends to instances where a defendant’s contacts with the state are “so continuous and systematic as to render it essentially at home in the forum state.”
• Specific jurisdiction may be exercised when the defendant has “minimum contacts” with the forum state such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

Question 5

What is the political question doctrine?

Answer 5

First recognized by Baker v. Carr (1962) (Brennan), the doctrine holds that a federal court should not decide the issue when:

• there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department; or
• a lack of judicially discoverable and manageable standards for resolving it,” Zivitofsky v. Clinton (2012)(Kennedy).

Question 6

What are the four abstention doctrines?

Answer 6

Please Call Your Boyfriend

Pullman, Colorado River, Younger, Burford

Question 7

What is Pullman abstention?

Answer 7

Pullman=POSTURE

Abstention is appropriate where a case “presenting a federal constitutional issue” “might be mooted or presented in a different posture by a state court determination of pertinent state law.”

Question 8

What is Burford abstention?

Answer 8

Burford allows a federal court to dismiss a case only if:

• The case presents “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar,” or
• The adjudication of the case in a federal forum “would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.”

Question 9

What is Younger abstention?

Answer 9

Younger CRIMINAL

Abstention is appropriate where, “absent bad faith, harrassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings.”

Question 10

What is Colorado River abstention?

Answer 10

Colorado River= Exceptional CONCURRENT

Abstention is appropriate in “exceptional circumstances” due to the presence of a concurrent state proceeding for reasons of wise judicial administration.

Question 11

What is the Rule 12(b)(6) standard?

Answer 11

Pursuant to Ashcroft v. Iqbal (2009) (Kennedy), a complaint must be dismissed unless the non-conclusory facts it alleged, if taken as true, present a prima facie claim for relief. The complaint must contain sufficient nonconclusory factual allegations to support a reasonable inference that the conduct occurred.

Question 12

What are the two primary mechanisms by which an individual can seek relief against government actors for violations of their constitutional rights?

Answer 12

1. 42 USC 1983 allows claims against state officers
2. Bivens v. Six Unknown Fed. Narcotics Agents (1971)(Brennen) allows a private right of action against a federal officer who violates the claimant’s Fourth Amendment rights

Question 13

Which case held that the line item veto is unconstitutional?

Answer 13

Clinton v. New York (1998) (Stevens) held that the line item veto violated the Presentment Clause of the United States Constitution because it impermissibly gave the President of the United States the power to unilaterally amend or repeal parts of statutes that had been duly passed by the United States Congress.

Question 14

What is a legislative veto? And is it constitutional?

Answer 14

A legislative veto occurs when a legislative chamber purports to invalidate executive action with a resolution. In INS v. Chadha (1983)(CJ Burger), SCOTUS held that Congress may not promulgate a statute granting to itself a legislative veto over actions of the executive branch (agencies) because such a veto is inconsistent with the bicameralism principle and Presentment Clause of the United States Constitution.

Question 15

Can Congress limit the President’s ability to remove inferior officers who determine policy and enforce laws?

Answer 15

No. In Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd. (2010)(Roberts), SCOTUS held that such congressional limitations intrude upon the President’s obligation to “take Care that the Laws be Faithfully executed.”

Question 16

First Amendment?

Answer 16

• Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof
• Freedom of speech
• Freedom of peaceable assembly
• Freedom to petition the government
• Freedom of press

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Question 17

Second Amendment?

Answer 17

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Question 18

Third Amendment?

Answer 18

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Question 19

Fourth Amendment?

Answer 19

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Question 20

Fifth Amendment?

Answer 20

No self-incrimination or double jeopardy; no deprivation of life, liberty, or property without due process of law; no taking of private property for public use without just compensation.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Question 21

Sixth Amendment?

Answer 21

Speedy trial by jury; notice of crime of which charged; right to confront witnesses; right to counsel

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Question 22

Seventh Amendment?

Answer 22

In suits over $20 there is a right to a jury trial and facts found by the jury can’t be reexamined except as allowed by common law.

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Question 23

Eighth Amendment?

Answer 23

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Question 24

Ninth Amendment?

Answer 24

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Question 25

Tenth Amendment?

Answer 25

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

Question 26

Eleventh Amendment?

Answer 26

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.

Question 27

Twelfth Amendment?

Answer 27

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

Question 28

Thirteenth Amendment?

Answer 28

Abolished slavery

Question 29

Fourteenth Amendment?

Answer 29

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.

Question 30

Fifteenth Amendment

Answer 30

Extends right to vote to the freed slaves.

Question 31

Sixteenth Amendment?

Answer 31

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.

Question 32

Seventeenth Amendment?

Answer 32

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.

Question 33

Eighteenth Amendment?

Answer 33

Prohibition

Passed in 1917 and repealed by 21st Amendment in 1933

Question 34

19th Amendment?

Answer 34

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.*

Question 35

Twenty Sixth Amendment?

Answer 35

Everyone over 18 can vote.

Question 36

What are Congress’ primary enumerated powers?

Answer 36

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.

Question 37

Describe Congress’ power to regulate interstate commerce.

Answer 37

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).

Question 38

What is the dormant commerce clause?

Answer 38

• 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.

Question 39

What framework typically governs challenges to the exercise of presidential power?

Answer 39

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.”

Question 40

What are the key features of the APA?

Answer 40

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.

Question 41

What is the case that established the doctrine of inevitable discovery as an exception to the exclusionary rule?

Answer 41

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

Question 42

When is it okay for Congress to delegate rule making power to administrative agencies?

Answer 42

According to Whitman v. American Trucking Assn. (2001) (Scalia), only where Congress provides an “intelligible principle” to guide the agency.

Question 43

When can a court set aside agency agency under the APA?

Answer 43

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 problem, or
• offered an explanation of its decision that runs counter to the Evidence before the agency

Question 44

What is Chevron deference?

Answer 44

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.

Question 45

What is Booker?

Answer 45

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.

Question 46

What did Ring v. Arizona hold?

Answer 46

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.

Question 47

What is a Batson challenge?

Answer 47

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.).

Question 48

What case held that indigent criminal defendants have a right to counsel?

Answer 48

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.

Question 49

What pleadings are allowed?

Answer 49

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)

Question 50

What federal law creates the federal sentencing system?

Answer 50

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

Question 51

What seven factors does the SRA say that a judge must consider when sentencing?

Answer 51

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.

Question 52

What has SCOTUS described as the “starting point and the initial benchmark” in the sentencing process?

Answer 52

The guideline range.

Question 53

When must a presentence report be provided to the prosecution and defense?

Answer 53

At least 35 days before the sentencing date.

• Objections must be made at least 14 days prior to the sentencing date.

Question 54

What is the difference between a “departure” from the sentencing guidelines, and a “variance” from the sentencing guidelines?

Answer 54

• 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)

Question 55

Do normal evidentiary rules apply at a sentencing hearing?

Answer 55

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

Question 56

What is the Rooker-Feldman doctrine

Answer 56

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.

Question 57

What must happen after the court orally pronounces sentence?

Answer 57

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.

Question 58

What two types of sentence are available by statute?

Answer 58

Probation or prison.

Question 59

What is the maximum allowable term of probation?

Answer 59

5 years

Question 60

What are the three primary types of financial penalties a court can impose?

Answer 60

Sr. F!

Special assessments, restitution, fines

Question 61

Is parole available?

Answer 61

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

Question 62

What is the three-step sentencing process required by Booker?

Answer 62

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.

Question 63

What is the cornerstone of the federal sentencing system?

Answer 63

• “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.

Question 64

In a civil matter, when must the judge issue a scheduling order?

Answer 64

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.

Question 65

What dates must the court set at the Rule 16 conference?

Answer 65

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.

Question 66

What rule generally governs discovery?

Answer 66

Rule 26

Question 67

Who conducts voir dire?

Answer 67

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

Question 68

What is an Allen charge?

Answer 68

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.

Question 69

When must the Rule 26 meet and confer occur?

Answer 69

• 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.

Question 70

What may be obtained by discovery?

Answer 70

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.”

Question 71

What case holds that a criminal defendant has a right to waive assistance of counsel and proceed pro se?

Answer 71

• 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.

Question 72

Can a criminal defendant waive his right to a jury trial?

Answer 72

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.

Question 73

Can a criminal case be tried with less than twelve jurors?

Answer 73

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.

Question 74

What is a peremptory challenge?

Answer 74

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.

Question 75

Can a peremptory challenge be used by prosecutors to exclude a juror based on race?

Answer 75

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

Question 76

Can a peremptory challenge be used by prosecutors to exclude a juror based on gender?

Answer 76

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

Question 77

Can a defendant use peremptory challenges to exclude jurors based on race or gender?

Answer 77

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

Question 78

Are parties entitled to all discovery that is relevant to the claims and defenses?

Answer 78

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.

Question 79

What is a “non-waiver order”?

Answer 79

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.

Question 80

Is it permissible for a party to use summaries of exhibits at trial?

Answer 80

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.”

Question 81

How many jurors must there be in a civil trial?

Answer 81

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.

Question 82

Must voluntary dismissal be granted?

Answer 82

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

Question 83

Can jurors be excluded based upon their race in a civil trial?

Answer 83

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

Question 84

What rule governs the procedure for the submission and consideration of request for specific jury instructions?

Answer 84

FRCP 51(b)

Question 85

What judicial canon governs the avoiding the appearance of impartiality?

Answer 85

Canon 2

Question 86

Can judges engage in political activities?

Answer 86

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

Question 87

What is Canon 1 of the Code of Conduct for United States Judges?

Answer 87

“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.”

Question 88

What is the case that articulates the “adequate and independent state law grounds” doctrine of appellate jurisdiction?

Answer 88

Michigan v. Long (1983) (O’Connor)

Question 89

Are DUI checkpoints constitutional?

Answer 89

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.

Question 90

What is Griswold v. Connecticut?

Answer 90

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.

Question 91

Eisenstadt v. Baird (1972)?

Answer 91

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)

Question 92

What duties may a magistrate judge perform?

Answer 92

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.

Question 93

What are the differences between civil and criminal contempt?

Answer 93

• 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.

Question 94

What FRE governs contempt proceedings?

Answer 94

FRE 1101.

Question 95

What FRCP governs injunctions and restraining orders?

Answer 95

FRCP 65.

Question 96

What rule governs grand juries?

Answer 96

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.

Question 97

What is the oath required of a judge?

Answer 97

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.

Question 98

What is the oath required of most executive branch officials?

Answer 98

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.”

Question 99

Canon 2C?

Answer 99

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.

Question 100

What FRE governs the form of objections?

Answer 100

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.

Question 101

What FRE governs the authentication of evidence?

Answer 101

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.”

Question 102

What is FRE 404?

Answer 102

“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.”

Question 103

When is character evidence admissible?

Answer 103

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.

Question 104

Can a defendant accused of felony sexual assault introduce evidence of prior sexual activity with the alleged victim?

Answer 104

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.

Question 105

Can character evidence of past crimes be admitted in criminal sexual assault or child molestation cases?

Answer 105

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

Question 106

What is FRE 408?

Answer 106

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.

Question 107

Which article of the FRE governs opinions and expert witnesses?

Answer 107

Article VII. FREs 701-706.

Question 108

What is FRE 602?

Answer 108

Requires that a witness have personal knowledge.

Question 109

What FRE governs admission of pleas?

Answer 109

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.

Question 110

What FRE governs evidence of habit?

Answer 110

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

Question 111

What FRE generally prohibits hearsay?

Answer 111

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.*

Question 112

What is hearsay?

Answer 112

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.

Question 113

What does Article I of the FRE govern?

Answer 113

General provisions (101-106)

Question 114

What article of the FRE governs judicial notice?

Answer 114

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.

Question 115

What does article III of the FRE govern?

Answer 115

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.

Question 116

What article of the FRE governs relevance?

Answer 116

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

Question 117

What article of the FRE governs witnesses?

Answer 117

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

Question 118

What does article V of the FRE govern?

Answer 118

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

Question 119

What article of the FRE governs opinions and expert testimony?

Answer 119

Article VII (701-706)

Question 120

What does article VIII of the FRE govern?

Answer 120

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

Question 121

What article of the FRE governs authentication and identification?

Answer 121

Article IX (901-903)

Rule 901. Authenticating or Identifying Evidence

Rule 902. Evidence That Is Self-Authenticating

Rule 903. Subscribing Witness’s Testimony

Question 122

What does Article X of the FRE govern?

Answer 122

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

Question 123

Where are the FRE’s miscellaneous rules located?

Answer 123

Article XI (1101-1103)

Question 124

What is the Erie doctrine?

Answer 124

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.

Question 125

When is evidence relevant?

Answer 125

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.

Question 126

What is FRE 403?

Answer 126

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.

Question 127

What FRE governs character evidence?

Answer 127

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.

Question 128

Is evidence of subsequent remedial measure admissible?

Answer 128

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.

Question 129

What rule governs the admissibility of compromise offers and negotiations?

Answer 129

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

Question 130

Is evidence of offers to pay medical expenses admissible?

Answer 130

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.*

Question 131

What rule governs use of evidence of a victim’s sexual behavior or predisposition?

Answer 131

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.

Question 132

What does FRE 413 say?

Answer 132

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.

Question 133

What does FRE 414 say?

Answer 133

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

Question 134

What does FRE 415 say?

Answer 134

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

Question 135

What governs a witness’s competence to testify?

Answer 135

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.

Question 136

What is FRE 602?

Answer 136

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

Question 137

What is required by FRE 603?

Answer 137

That the witness be sworn to testify truthfully.

Question 138

Is the presiding judge competent to serve as a witness?

Answer 138

No. FRE 605.

Question 139

Who may impeach a witness?

Answer 139

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

Question 140

Does the Free Exercise Clause require a state to provide unemployment compensation benefits to an employee who quit because of a belief that his religion prohibited him from engaging in the employer’s line of work?

Answer 140

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.”

Question 141

What canon of judicial conduct requires that a judge should perform the duties of the office, fairly, impartially, and diligently?

Answer 141

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

Question 142

What is the holding of Burwell v. Hobby Lobby?

Answer 142

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.

Question 143

What case held that compulsory recitation of the Pledge of Allegiance in K-12 schools violates the First Amendment?

Answer 143

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.”

Question 144

What is the RFRA test?

Answer 144

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.

Question 145

What case established the Fourth Amendment’s third party doctrine?

Answer 145

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.

Question 146

What is the holding of Ledbetter v. Goodyear Tire and Rubber Company?

Answer 146

(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.

Question 147

United States v. Lee?

Answer 147

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.

Question 148

The decision in what case prompted the enactment of RFRA?

Answer 148

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

Question 149

What is the role of precedent in making important or difficult legal decisions? And how would you balance the importance of respect for precedent versus personal experience or other sources of information or insight in making difficult judicial decisions?

Answer 149

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.

Question 150

Could you just explain for me the difference between the role of legal advocates and the role you perceive as a judge and exactly how you will rely on precedent in making decisions on the federal circuit court?

Answer 150

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.

Question 151

How will you ensure that positions you have developed as an advocate will not unduly influence your judgment if confirmed to this court?

Answer 151

• 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.

Question 152

Would you tell us why you think gender diversity, as well as diversity in terms of race or other forms of background, is vital for the judiciary, and, if seated on the bench, you would be the voice of the rule of law without regard to background or personal experience or faith or other critical features?

Answer 152

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. ​

Question 153

In the federal court system, in the criminal process, at what point are the scales balanced? At what point does the criminal defendant really believe they have as much power as the prosecutor in terms of asserting their constitutional rights and asserting their innocence, which most do? What is your observation having been witness to and as part of that process for so many years?

Answer 153

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.

Question 154

Could you comment a little bit on your view on the role of the American jury both as a pure judicial institution and in the broader context of its role within the American system of government given its history?

Answer 154

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.

Question 155

Who has the responsibility to ensure that laws are faithfully executed like the Constitution requires? Do the courts have any role to play?

Answer 155

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

Question 156

I would like to have you describe for us some traits or judicial philosophy that you would like to emulate as a judge if confirmed. Is there are particular justice that you admire?

Answer 156

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.

Question 157

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.

Answer 157

(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.”

Question 158

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.?

Answer 158

(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.”

Question 159

Has SCOTUS ever recognized a “reporter’s privilege”?

Answer 159

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.

Question 160

What is Cruzan?

Answer 160

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.

Question 161

What case held that the federal RFRA cannot be applied to the States?

Answer 161

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

Question 162

What is a fundamental right and examples of such rights?

Answer 162

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)

Question 163

What is the holding of Marbury v. Madison?

Answer 163

(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.

Question 164

What is the holding of Brown v. Board of Education?

Answer 164

(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.

Question 165

What is the holding of Plessy v. Ferguson?

Answer 165

(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.”

Question 166

What is the holding of Dred Scott?

Answer 166

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.

Question 167

What is the holding of Korematsu?

Answer 167

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.

Question 168

What are the Slaughterhouse Cases?

Answer 168

(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).

Question 169

What is Lochner?

Answer 169

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.

Question 170

What is the well-pleaded complaint rule?

Answer 170

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.

Question 171

What case held that parents have the right to teach their children the languages of their choice?

Answer 171

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.”

Question 172

What is RLUIPA?

Answer 172

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.

Question 173

What is the Ginsburg standard?

Answer 173

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

Question 174

District of Columbia v. Heller?

Answer 174

(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

Question 175

McDonald v. Chicago?

Answer 175

(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.

Question 176

Do you personally believe the meaning of the Eighth Amendment has changed over time?

Answer 176

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)

Question 177

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC?

Answer 177

(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

Question 178

Gross v. FBL Financial Services, Inc.?

Answer 178

(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.

Question 179

University of Texas Southwestern Medical Center v. Nassar?

Answer 179

(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.

Question 180

What is the primary source of federal law on disqualification?

Answer 180

28 USC 455

Question 181

In addition to 28 USC 455, what statute allows a district court to be disqualified when a litigant files an affidavit alleging bias or prejudice?

Answer 181

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.

Question 182

What is the IDEA?

Answer 182

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.

Question 183

What case created the framework for evaluating IDEA claims?

Answer 183

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.”

Question 184

What case establishes a person’s ability to bring a qui tam action under the False Claims Act?

Answer 184

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.

Question 185

What case establishes that state and local governments are subject to the Fair Labor Standards Act?

Answer 185

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.

Question 186

Must States provide a free public education to children of illegal immigrants?

Answer 186

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.

Question 187

Epic Systems Corp. v. Lewis (2018)

Answer 187

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.

Question 188

Sessions v. Dimaya (2018) - the violent felony case

Answer 188

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.”

Question 189

Rucho v. Common Cause and Lamone v. Benisek (2019)

Answer 189

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.

Question 190

American Legion v. American Humanist Assn (2019)

Answer 190

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.

Question 191

Espinoza v. Montana Department of Revenue (2020)?

Answer 191

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.”

Question 192

Law on the right to petition on private property?

Answer 192

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

Question 193

Levels of scrutiny?

Answer 193

SIR. Strict scrutiny, intermediate review, rational basis.

Question 194

What are unenumerated rights and examples of such rights?

Answer 194

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)

Question 195

What is the adequate and independent state grounds doctrine?

Answer 195

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.

Question 196

What is a federal question?

Answer 196

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.

Question 197

Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020)

Answer 197

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.

Question 198

What is rational basis?

Answer 198

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.

Question 199

What is intermediate scrutiny?

Answer 199

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)

Question 200

What is strict scrutiny?

Answer 200

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

Question 201

What is a penumbra?

Answer 201

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.

Question 202

Can you tell me what the Daubert standard is?

Answer 202

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.

Question 203

Do you know what a motion in limine is?

Answer 203

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.

Question 204

What are some hearsay exceptions?

Answer 204

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.]

Question 205

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018)

Answer 205

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.

Question 206

In your opinion is all legislative history equal? Or are there some kinds of legislative history–some legislative history data points that are more reliable or less reliable than others?

Answer 206

• 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.”

Question 207

Roe v. Wade (1973)

Answer 207

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

Question 208

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

Answer 208

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

Question 209

Tandon v. Newsom, 593 U.S. ___ (2021).

Answer 209

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.

Question 210

Bostock v. Clayton County, 140 S. Ct. 1731 (2020)

Answer 210

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.

Question 211

What case held that the Establishment Clause permits a state legislature to open its daily session with a prayer given by a chaplain paid by the State?

Answer 211

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.

Question 212

Lawrence v. Texas (2003) - overruled Bowers v. Hardwick

Answer 212

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.”

Question 213

To what extent can a university consider race with regards to admission?

Answer 213

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

Question 214

Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361 (2018)

Answer 214

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.

Question 215

Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council (2018)

Answer 215

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.

Question 216

What is Auer deference

Answer 216

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.

Question 217

What are the exceptions to the warrant requirement?

Answer 217

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

Question 218

What is substantive due process?

Answer 218

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

Question 219

What are quasi-suspect classes?

Answer 219

Classifications subject to intermediate scrutiny (laws that are substantially related to an important govt interest)

Eg:

1. Gender
2. Illegitimacy

Question 220

In the U.S., do you think acts of violence are committed more on the political right than on the political left?

Answer 220

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.

Question 221

Do you believe that crime is a – is a disease that needs a cure, or is it antisocial behavior that deserves punishment?

Answer 221

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.

Question 222

Are you a textualist or a purposivist?

Answer 222

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

Question 223

Suppose that there’s an academic study done that says that one of the stimulating effects of young men engaging in mass shootings is the internet. Suppose it says that if you eliminate all the postings on social media with the words “kill,” “murder,” “dead,” and “gun,” then that would help reduce mass shootings. Government says in response that any postings using these words must be approved by the government first. Is that constitutional? How do you analyze the issue?

Answer 223

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.

Question 224

Roe v Wade (1973)?

Answer 224

• 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

Question 225

Explain to me the status of the law regarding what laws I have to comply with and don’t have to comply with due to religion?

Answer 225

• 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

Question 226

Can I discriminate based on my religion? What if my religion doesn’t allow me to be around black people?

Answer 226

• 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
  *

Question 227

Are there rights that are fundamental that haven’t been determined?

Answer 227

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

Question 228

How would you prepare to handle criminal law matters?

Answer 228

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.

Question 229

Is legislative history something that can be considered in Constitutional issue adjudication? What are some examples?

Answer 229

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

Question 230

1. How do you determine original public meaning?

Answer 230

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).

Question 231

Is there a particular justice you admire or would want to emulate?

Answer 231

• John Marshall
• O’Connor
• NICS judges

Question 232

What is the state of the law on the extent to which the government can or cannot burden my religious beliefs?

Answer 232

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.

Question 233

1. Can a court bind parties that are not before it?

Answer 233

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.

Question 234

Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council (2018)

Answer 234

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.

Question 235

What is Auer deference

Answer 235

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.

Question 236

What are the exceptions to the warrant requirement?

Answer 236

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

Question 237

What is substantive due process?

Answer 237

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

Question 238

What are quasi-suspect classes?

Answer 238

Classifications subject to intermediate scrutiny (laws that are substantially related to an important govt interest)

Eg:

1. Gender
2. Illegitimacy

Question 239

In the U.S., do you think acts of violence are committed more on the political right than on the political left?

Answer 239

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.

Question 240

What is a taking?

Answer 240

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

Question 241

Is solitary confinement cruel and unusual punishment?

Answer 241

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

Question 242

What is the legal basis for a district court’s authority to issue nationwide injunctions?

Answer 242

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 inappropriate 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)

Question 243

What is the test in the 9th Circuit to analyze whether a statute violates the Second Amendment?

Answer 243

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.

Question 244

Explain to me the status of the law regarding what laws I have to comply with and don’t have to comply with due to religion?

Answer 244

• 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

Question 245

Can I discriminate based on my religion? What if my religion doesn’t allow me to be around black people?

Answer 245

• 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
  *

Question 246

Are there rights that are fundamental that haven’t been determined?

Answer 246

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

Question 247

How would you prepare to handle criminal law matters?

Answer 247

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.

Question 248

How do you think the mens rea requirement is consistent with principle that ignorance of law is no excuse?

Answer 248

• 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)

Question 249

What is the primary test used for the establishment clause?

Answer 249

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

Question 250

What is the substantive due process analysis?

Answer 250

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

Question 251

Standard for preliminary injunction?

Answer 251

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)

Question 252

What if an inmate was denied sexual reassignment surgery? How are you going to evaluate that lawsuit?

Answer 252

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)

Question 253

What rights do prisoners lose?

Answer 253

• 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.

Question 254

Do laws enjoy a presumption of constitutionality?

Answer 254

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

Question 255

June Medical Services v. Russo, 140 S. Ct. 2103 (2020).

Answer 255

• 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.

Question 256

In your view, what limitations exist on searches of computers or information stored by an electronic device in a cloud server? What role do you believe the exclusionary rule should play in these types of searches?

Answer 256

• 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

Question 257

• What is your view of the extent to which the Bill of Rights continues to operate and protect our liberties even in a time of crisis? [Ted Cruz]

Answer 257

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.

Question 258

• Now, just as an opportunity to have you think about if we’re a government based on enumerated and limited powers, and the federal government is limited by the Tenth Amendment, could you give an example of an activity that the federal government does not have the authority to regulate? [Chuck Grassley]

Answer 258

• 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

Question 259

What is the 9th Circuit’s view of the Second Amendment?

Answer 259

• 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.

Question 260

• Do we have a fundamental right to travel? Why don’t we have a fundamental right to travel internationally? What’s the reason for that? Assuming Great Britain says it’s okay to come, how can the U.S. restrict my right to travel to Great Britain in a way they can’t block my travel to Mississippi? Give me one more shot on why I can travel state to state but not internationally? What’s the legal basis for my fundamental right to travel to Mississippi?
  *

Answer 260

• 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)

Question 261

• Let’s suppose a state passed a statute that said that all state printing must be bid out, and then the state wanted to take the printing in house. Could it do so?
  *

Answer 261

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.

Question 262

• Do federal judges have inherent authority to enjoin state actions without authority from statutes or the constitution?

Answer 262

• 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.

Question 263

• Can you share with this committee your views on why separation of powers matters, and what it does for the average American citizen? [Ted Cruz]

Answer 263

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.

Question 264

What is the general rule on government regulation of speech?

Answer 264

• 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

Question 265

Describe the government’s power to regulate speech in public forums

Answer 265

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

Question 266

Describe my associational rights

Answer 266

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