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my bar flashcards > BLL Con Law > Flashcards

BLL Con Law Flashcards

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1
Q

a private action is really a state action when…

A
  1. the private entity is performing a historically exclusive public function or
  2. the state is significantly involved (entanglement)
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2
Q

What is the standard of review for strict scrutiny?

A

upheld if it is necessary to achieve a compelling government purpose (lest restrictive means)

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3
Q

what is the standard of review for intermediate scrutiny?

A

upheld if substantially related to an important government purpose

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4
Q

what is the standard of review for rational basis?

A

upheld if rationally related to a legitimate government purpose

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5
Q

Who has the burden of proof for each of the standards of review?

A

strict - gov
intermediate - gov
rational - challenger (bitch baby)

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6
Q

what is procedural due process?

A

provides that a person has a right to a fair process when the gov intentionally deprives a person of life, liberty, or property

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7
Q

what type of process is required by procedural due process?

A
  1. notice
  2. hearing
    3 neutral decisionmaker
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8
Q

what are the fundy rights?

A
  • all 1A rights
  • right to interstate travel
  • privacy-related rights
  • voting
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9
Q

what standard of review is used when fundy rights are implicated?

A

strict scrutiny

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10
Q

what is the difference between substantive DP and equal protection?

A

EP - person or class of persons treated differently; SDP - all persons treated differently/have rights limited

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11
Q

What level of scrutiny are non-fundy rights subject to?

A

rational basis

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12
Q

What must be shown for SS or IS to be applied in an EP challenge?

A
  1. law discriminatory on face
  2. discriminatory application of facially neutral law
    OR
  3. facially neutral law w/ disparate impact on protected class
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13
Q

classification of under EP: race

A

suspect

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14
Q

classification of under EP: national origin

A

suspect

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15
Q

classification of under EP: alienage by fed gov

A

rational basis, non-suspect

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16
Q

classification of under EP: alienage by state or local gov

A

suspect

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17
Q

classification of under EP: gender

A

quasi-sus

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18
Q

classification of under EP: legitimacy of children

A

quasi-sus

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19
Q

is the right to travel a fundy right?

A

yes - SS

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20
Q

are the privacy rights fundy rights?

A

yes - SS

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21
Q

Is the right to vote a fundy right?

A

yes - SS

22
Q

are 1A rights fundy rights?

A

yes - SS

23
Q

What can the gov take private property for?

A

only for public use

24
Q

taking found when:

A
  1. confiscation of person’s property OR 2. permanent or regular physical occupation of a person’s property by gov
25
Q

If a gov reg denies a property owner of ____ economically viable use of the land, it is a taking.

A

ALL

26
Q

what must the gov provide when taking private prop?

A

just compensation

27
Q

what is just compensation?

A

fair market value at time of taking

28
Q

what is the K clause?

A

gov cannot enact laws that retroactively impair K rights

29
Q

if a private K is impaired, what level of scrutiny is applied under K clause?

A

int. scrutiny

30
Q

what are ex post facto laws and are they allowed?

A

laws that retroactively alter CRIMINAL offenses or punishments. not allowed.

31
Q

when does an ex post facto law alter a law in a substantially prejudicial manner?

A
  1. makes criminal an act that was innocent when done,
  2. imposes greater punishment for act than was imposed when done OR
    reduces the evidence required to convict
32
Q

what is a bill of attainder and are they allowed?

A

legislative acts that inflict punishment w/o judicial trials. not allowed.

33
Q

what are types of speech that are not protected under 1A?

A

incitement, fighting words, obscenity, defamatory speech, false or misleading commercial speech

34
Q

what level of scrutiny for content-based speech regs?

A

SS

35
Q

what level of scrutiny for content-neutral speech regs?

A

Int. scrutiny (must advances important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary)

36
Q

what level of scrutiny is used for content-neutral reg of speech in a public forum or designated public forum?

A

1A int scrut - narrowly tailored to serve an important gov interest & leave open alternative channels of comm

37
Q

standard used for content-neutral reg of speech in a limited public forum or nonpublic forum?

A

regs valid if:
1. viewpoint neutral &
2. reasonably related to a legitimate gov purpose

SS if viewpoint based

38
Q

student personal speech on campus can be censored when:

A

evidence of substantial disruption (unless speech promoting illegal drug use, no need to show disruption)

39
Q

student personal speech off campus can be censored when:

A

to prevent cheating, bullying, threats, or other speech where pedagogical or safety interests are a concern

40
Q

gov employee speech at work regarding private concern and disruptive - protected or not?

A

not protected

41
Q

gov employee speech at work made pursuant to official duties on a private or public matter - protected or not?

A

not protected

42
Q

gov employee speech made at work not pursuant to official duties but on a matter of public concern - protected or not?

A

protected using balancing test:

weigh value of speech vs. gov. interest in an effective workplace

43
Q

gov employee speech not made at work on a private concern

A

protected absent a detrimental effect on the workplace

44
Q

the federal government MAY OR MAY NOT prohibit federal exec branch employees from taking active parts in political campaigns?

A

may

45
Q

what is an overbroad regulation of speech?

A

a regulation that punishes substantially more speech than is necessary. INVALID

46
Q

what is a prior restraint in the 1A context?

A

prevent/punish speech before it occurs

ask: some special societal harm that justifies the restraint?

47
Q

what level of scrutiny is applied to gov speech?

A

rational basis

48
Q

what is the free exercise clause?

A

prohibits gov from punishing someone on the basis of their religious beliefs

49
Q

when does a law burden religion?

A
  1. not neutral on face OR
  2. facially neutral but not generally applicable (discriminatory application by design)
50
Q

what is the establishment clause?

A

prohibits gov sponsorship (aiding or formally establishing) of religion

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