ALL Flashcards
What is the issues checklist for constitutional law?
- JUSTICIABILITY
- case or controversy
- standing
- ripe
- moot
- 11th amendment - STATE ACTION
- STATE POWER
- FEDERAL POWERS
- Congress (Art I Legislature)
- judiciary (Art III)
- executive (Art II) - LIMITATIONS ON STATE POWER
- supremacy
- DCC
- privileges and immunities clause
- Contracts clause - LIMITATIONS ON FEDERAL POWER
- 10th amendment
- improper delegation of legislative power - STATE & FEDERAL POWER LIMITATIONS / INDIVIDUAL RIGHTS
- 1st amendment: Religion
- 1st amendment: Speech
- freedom of association
- Due process clause (substantive and procedural)
- Equal protection clause
- Takings
Cases or controversies
Article III of the Constitution limits federal courts to deciding actual cases or controversies. As such:
- a Plaintiff MUST have standing to sue in federal court; and
- a court CANNOT give advisory opinions or address hypothetical disputes.
What does the Commerce Clause do?
Grants Congress the authority to regulate commerce between the States (ISC), foreign nations, and Indian Tribes.
What is the Supremacy Clause?
Under the Supremacy Clause, validly enacted federal law will always preempt conflicting state law. State law may be preempted either expressly or impliedly.
What is State Action?
When alleging a Constitutional violation, a Plaintiff MUST show that the violation is attributable to state action, which applies to ALL levels of local, state, and federal government.
Generally, the conduct of private individuals or entities DOES NOT constitute state action and is not protected by the Constitution.
What is the Incorporation Doctrine?
The Bill of Rights was initially applicable ONLY to the federal govt. However, under the incorporation doctrine, most of the Amendments are now also applicable to the states.
The A14 (EPC) is incorporated into the A5, making it applicable to the federal government.
What is Substantive Due Process?
SDP pertains to the govt’s power to regulate certain activities under the DP clause of the A14 (app to States) and the A5 (app to fed govt).
What does the right to privacy under SDP include?
The right to privacy encompasses the right to:
- Marry
- Procreate
- Use contraceptives
- Raise one’s children
- Keep the family together; and
- Maintain custody over one’s children.
What is Procedural Due Process?
The DPC guarantees that no person shall be denied life, liberty, or property without due process of law. Thus, certain procedures are required when the govt deprives a person of life, liberty, or property.
In analyzing a DP claim, court will determine:
- whether a person’s L,L, or P has been taken from her; then
- what process, if any, was due before or after depriving such right.
To determine what procedures are required, the court will balance the 3 Matthews v Eldridge factors.
What is a public nuisance?
A public nuisance is
- an unreasonable interference
- with the health, safety, or property rights
- of the community.
To recover damages, injured party MUST show actual damages.
To constitute a public n, the n must affect a considerable # of people or an entire community or neighborhood.
What is a private nuisance?
A private nuisance is
- A substantial and unreasonable interference
- with a person’s use or enjoyment of her property.
N just be offensive, inconvenient, or annoying to a reasonable person.
P entitled to damages or an injunction to prevent the n (if damages are insufficient).
Primary defenses:
- Coming to the n (a res owner knowingly came into the neighborhood with the n); &
- Statutory compliance.
How is a Joint Tenancy severed
Generally, when one jt unilaterally transfers his o/ship interest in the real property, the jt is severed & the tenants will hold the property as tenants in common.
When a tenant conveys his interest in a jt to a 3P, that party takes the prop as a TinC. If there are only 2 it’s, the jt is severed. H/e, if there are more, the jt remains but only among the other jts.
When a jt takes out a mortgage on her interest, the mortgages wffext on the jt will depend on the JT:
- a line theory jx: mortgage will NOT sever the jt
- a title theory jx: mortgage SEVERS the jt.
What is the rule against perpetuities?
A common law property rule that states that no interest in land is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.
Only applies to FI: vested remainder subject to open, contingent remainders, and FS subject to executors interest.
What is the Issues Checklist for Real Property?
1. HAS THE PROPERTY BEEN ACQUIRED? Adverse Possession Land sales contracts Mortgages Deeds Wills Recording acts/notice
2. WHO HAS AN INTEREST IN THE PROPERTY? Estates in Land - Freehold estates - Future interests Joint Ownership (concurrent estates) - Joint tenants - Tenants in common - Tenants by the entirety Landlord/tenant - Types of tenancies - Rent disputes - Condition of premises - Waste - Fixtures - Assignment and sublease
- ARE THERE LIMITS ON LAND USE?
Easements
Real Covenants
Equitable Servitudes
Evidence issues checklist
RELEVANCE: Logical, Legal, Prop 8
PUBLIC POLICY EXCLUSIONS:
Subsequent remedial measures
Liability insurance
Offers to: pay medical bills/ settle / plead guilty
WITNESS ON STAND: Personal Knowledge Form of the Q objections (NUCALF) Present Recollection Refreshed Opinion (Lay/Expert)
PRIVILEGES: A-C / Dr-Patient / Marital (spousal immunity and marital communications)
CHARACTER:
Character “at issue”
Civil or Criminal
Other purposes for character ev (I PIK A MOP)
IMPEACHMENT
HEARSAY
Non hearsay purposes
HEARSAY EXCEPTIONS
- Admission: Party, Adoptive, Vicarious, Co-conspirator
- W Statements: medical diagnoses, then existing state of mind, PSI, Excitted utterance
- Prior statement of AVAIL W: PIS, PCS, PID
- Documents: Past Rec Recorded, Bus Records, Public Records, Learned writings
- Declarant UNAVAIL: Statement against interest, Former Testimony, Dying Declaration
- Catchall exception
DOCUMENTS ADMITTED INTO EVIDENCE Relevance Authentication BER Hearsay exceptions
JUDICIAL NOTICE
