Article III: Judicial Power

Question 1

Article III, Federal Judicial Power extends to cases involving:

Answer 1

1. Interpretation of the constitution, federal laws, treaties, and admiralty and maritime laws; and
2. Disputes between states, states and foreign citizens, and citizens of diverse citizenship.

Question 2

Power of Judicial Review

Answer 2

The Supreme Court may review constitutionality of acts of other branches of the fed govt. It may also review state acts pursuant to the Supremacy Clause.

Question 3

JDX of the SC

Answer 3

1. Original Jdx: the SC has original jdx in all cases affecting: ambassadors, public ministers, consuls, and when a state is a party
2. Appellate Jdx: SC has appellate jdx in all cases in which fed power extends, subject to congressional excpetions and regulations:

Question 4

2 Ways cases come to SC

Answer 4

1. Writ of Certiorari- Most cases
   SC has complete discretion to hear cases that come to it by writ.

2.Appeal - rare cases
SC MUST hear cases that come to it on appeal. These cases are confined to 3 judge panels that grant/deny injunctive relief.

Question 5

Writs come to the SC in two ways:

Answer 5

1. Cases from state courts where (1) the constitutionality of a federal statute, fed treaty, or state statute is in issue, or (2) a state statute allegedly violates federal law.
2. All cases from fed courts of appeal

Question 6

Limitations on Fed Court JDX

Answer 6

1. No Advisory Opinions : specific, present harm or threat of specific future harms
2. Ripeness
3. Mootness
4. Standing

Question 7

Ripeness

Answer 7

When considering a question of ripeness, a federal court considers:

(1) the fitness of the issues for judicial decision, and
(2) the hardship to the parties of withholding court consideration.

Question 8

Fitness for Judicial Decision

Answer 8

Generally, an issue is not fit for judicial decision if it relies on uncertain or contingent future events that may not occur as anticipated.

Question 9

Hardship to Parties

Answer 9

A court will find that an action is ripe for review if a party would have to risk substantial hardship to provoke enforcement of law.

Question 10

Mootness

Answer 10

A real controversy must exist at all stages of review. If the matter has already been resolved- dismissed as moot.

Exception:

1. controversies capable of repetition
2. Class actions: a class rep may continue to pursue a class action after the representative’s controversy has become moot if claims of other class members are still viable.
3. voluntary cessation: if the D voluntarily halts the offending conduct, but is free to resume it at any time will not be found moot.

Question 11

Ripeness v. Mootness

Answer 11

Ripeness has consideration of claims before they have been developed (pre-enforcement review of statute/reg)

Mootness bars their consideration after they have been resolved.

Question 12

Standing

Answer 12

A person must have a concrete stake in the outcome of a case at all stages of litigation, including on appeal.

1. Injury in fact
2. Causation
3. Redressability

Question 13

Injury in fact

Answer 13

(1) particularized injury: an injury that affects the p in a personal and individual way; and
(2) a concrete injury - one that exists in fact.

P’s seeking injunctive/declaratory relief - must show likelihood of future harm
**injury need not be economic.

Question 14

Causation

Answer 14

There must be a causal connection between the injury and the conduct complained of.

Question 15

Redressability

Answer 15

A decision in the litigants favor must be capable of eliminating/remedying the grievance.

Question 16

Common standing issues

Answer 16

1. Congressional conferred of Standing
2. Standing to enforce gov statutes
3. Standing to assert rights of others
4. Standing of Orgs
5. No Citizenship Standing
6. Taxpayer Standing Requisites

Question 17

No generalized grievances

Answer 17

the P must not be suing solely as a citizen or taxpayer interested in having the gov follow the law

Question 18

Taxpayer’s Standing Exceptions

Answer 18

taxpayers have standing to challenge gov expenditure pursuant to fed (state or local) statutes as violating the Establishment clause

Question 19

Examples of Taxpayer standing for fed law’s violating the Establishment clause

Answer 19

1. taxpayer has standing to challenge fed law providing monetary aid to parochial schools
2. Taxpayers do NOT have standing to challenge fed gov grants of property to religious institutions
3. DO NOT have standing to challenge fed gov expenditures from general executive revenues
4. DO NOT have standing to challenge state tax credits that benefit religious institutions

Question 20

Nonjusticiable Political Questions

Answer 20

the political question doctrine refers to constitutional violations that the fed courts will not adjudicate

Question 21

Examples of Nonjusticiable Pol Q’s

Answer 21

1. the “republican form of government clause”
2. challenges to the Prez’s foreign policy
3. challenges to the impeachment/removal process
4. challenges to partisan gerrymandering (where pol party that controls the leg draws election districts to max seats for that party)

Question 22

The SC has original and exclusive for suits between

Answer 22

state govts

Question 23

Final Judgment Rule

Answer 23

Generally, SC may hear cases only after there has been a final judgment of the highest state court, of a US Court of Appeals, or of a three-judge fed district court

Question 24

If a state court decision rests on two grounds, one state and one fed law, if the SC’s reversal of the fed law ground will not change the result of the case t

Answer 24

the Supreme court can not hear it - independent and adequate state-law ground decision

Question 25

sovereign immunity

Answer 25

i) the 11th A bars suits against states in fed court

ii) sovereign immunity bars suits against states in state courts or federal agencies

Question 26

exceptions to sovereign immunity

Answer 26

states may be sued under the following circumstances:

I) waiver is permitted (must be explicit, no such thing as implicit waiver)

ii) states may be sued pursuant to fed laws adopted under 14th A. Congress cannot authorize suits against states under other constitutional provisions
iii) the fed gov may sue state gov’s
iv) bankruptcy proceedings

Question 27

Under the Privileges and Immunities Clause of Article IV, Section 2, __________.

Answer 27

states may not discriminate against nonresidents regarding fundamental rights-i.e., those involving important commercial activities (such as pursuit of a livelihood) or civil liberties-absent a substantial justification: i.e., the state shows that nonresidents either cause or are part of the problem the state is attempting to solve, and that there are no less restrictive means to solve the problem.

For example, states may not charge nonresident commercial fishermen substantially more for a license than they charge residents absent substantial justification.

Question 28

Who is not protected under the Article IV Privileges and Immunities Clause?

Answer 28

Corporations are NOT protected as well as natural persons under the Article IV Privileges and Immunities Clause. The Clause has been held to extend only to natural persons.

Aliens are NOT protected as well as citizens under the Article IV Privileges and Immunities Clause. The Clause has been held to extend only to citizens.

Question 29

What does the Fourteenth Amendment Privileges or Immunities Clause protect?

Answer 29

prohibits states from denying their citizens the rights of national citizenship, such as the right to petition Congress for redress of grievances, the right to vote for federal officers, the right to enter public lands, the right to interstate travel, and any other right flowing from the distinct relation of a citizen to the United States Government.

**Corporations, aliens, and legal residents are not citizens of the United States and are not protected by the Fourteenth Amendment Privileges or Immunities Clause.

Question 30

What test is applied to determine whether a state has discriminated against nonresidents?

Answer 30

The statutes violate the Privileges and Immunities Clause of Article IV, which prohibits discrimination against nonresidents with respect to essential activities (e.g., pursuing a livelihood) unless (i) the discrimination is closely related to a substantial state purpose, and (ii) less restrictive means are not available.

Question 31

What speech is protected under the First A?

Answer 31

commercial speech

However, false or misleading commercial speech is not protected by the First Amendment. Moreover, commercial speech can be regulated if the regulation serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest.

Question 32

Speech may be punished or banned under the clear and present danger test whenever it is directed

Answer 32

to producing or inciting imminent lawless action and is likely to produce such action.

Question 33

regulation of fighting words

Answer 33

True threats-statements meant to communicate an intent to place an individual or group in fear of bodily harm-may be punished;

Fighting words-words or epithets that, when addressed to an ordinary citizen, are inherently likely to incite immediate physical retaliation-may also be punished; and

Fighting words statutes are often struck down for overbreadth. The overbreadth problem arises because of the difficulty in precisely describing what is or is not a “fighting word.”

Question 34

Under the clear and present danger test, speech may be sanctioned whenever it __________.

Answer 34

is directed to producing or inciting imminent lawless action and is likely to produce such action

Question 35

In First Amendment free speech cases, public property that historically has been open to speech-related activity is called a __________.

Answer 35

public forum

Question 36

For a governmental regulation of speech in a public or designated public forum to avoid strict scrutiny and be upheld, the following is necessary.

Answer 36

content neutral and narrowly tailored to serve an important government interest, and it must leave open alternative methods of communication.

***even if these requirements are met, the regulation may be invalidated for other reasons, such as for being vague or overbroad.

Question 37

To be valid, a time, place, and manner regulation of a limited public forum must be __________.

Answer 37

viewpoint neutral and rationally related to a legitimate government purpose

Question 38

Speech in a nonpublic forum or limited public forum may be reasonably regulated but the regulation must be
__

Answer 38

viewpoint neutral-it cannot permit presentation of one side of an argument and exclude the other.

Question 39

What speech is unprotected or less protected by the First A?

Answer 39

1. incitement of illegal activity - may punish if there is a substantial likelihood of imminent illegal activity and fi the speech is directed to causing imminent illegality
2. obscenity and sexually oriented speech
3. zoning ordinances to regulate locations of adult bookstores/movie theaters
4. child pornography * the gov may not punish private possession of obscene materials but they can for child porn
5. may seize the assets of businesses convicted of violating obscenity laws
6. profane and indecent speech is usually protected w/excpetions: over the broadcast media, schools