BLL Con Law

Question 1

a private action is really a state action when…

Answer 1

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

Question 2

What is the standard of review for strict scrutiny?

Answer 2

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

Question 3

what is the standard of review for intermediate scrutiny?

Answer 3

upheld if substantially related to an important government purpose

Question 4

what is the standard of review for rational basis?

Answer 4

upheld if rationally related to a legitimate government purpose

Question 5

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

Answer 5

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

Question 6

what is procedural due process?

Answer 6

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

Question 7

what type of process is required by procedural due process?

Answer 7

1. notice
2. hearing
   3 neutral decisionmaker

Question 8

what are the fundy rights?

Answer 8

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

Question 9

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

Answer 9

strict scrutiny

Question 10

what is the difference between substantive DP and equal protection?

Answer 10

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

Question 11

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

Answer 11

rational basis

Question 12

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

Answer 12

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

Question 13

classification of under EP: race

Answer 13

suspect

Question 14

classification of under EP: national origin

Answer 14

suspect

Question 15

classification of under EP: alienage by fed gov

Answer 15

rational basis, non-suspect

Question 16

classification of under EP: alienage by state or local gov

Answer 16

suspect

Question 17

classification of under EP: gender

Answer 17

quasi-sus

Question 18

classification of under EP: legitimacy of children

Answer 18

quasi-sus

Question 19

is the right to travel a fundy right?

Answer 19

yes - SS

Question 20

are the privacy rights fundy rights?

Answer 20

yes - SS

Question 21

Is the right to vote a fundy right?

Answer 21

yes - SS

Question 22

are 1A rights fundy rights?

Answer 22

yes - SS

Question 23

What can the gov take private property for?

Answer 23

only for public use

Question 24

taking found when:

Answer 24

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

Question 25

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

Answer 25

ALL

Question 26

what must the gov provide when taking private prop?

Answer 26

just compensation

Question 27

what is just compensation?

Answer 27

fair market value at time of taking

Question 28

what is the K clause?

Answer 28

gov cannot enact laws that retroactively impair K rights

Question 29

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

Answer 29

int. scrutiny

Question 30

what are ex post facto laws and are they allowed?

Answer 30

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

Question 31

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

Answer 31

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

Question 32

what is a bill of attainder and are they allowed?

Answer 32

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

Question 33

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

Answer 33

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

Question 34

what level of scrutiny for content-based speech regs?

Answer 34

SS

Question 35

what level of scrutiny for content-neutral speech regs?

Answer 35

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

Question 36

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

Answer 36

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

Question 37

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

Answer 37

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

Question 38

student personal speech on campus can be censored when:

Answer 38

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

Question 39

student personal speech off campus can be censored when:

Answer 39

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

Question 40

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

Answer 40

not protected

Question 41

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

Answer 41

not protected

Question 42

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

Answer 42

protected using balancing test: weigh value of speech vs. gov. interest in an effective workplace

Question 43

gov employee speech not made at work on a private concern

Answer 43

protected absent a detrimental effect on the workplace

Question 44

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

Answer 44

may

Question 45

what is an overbroad regulation of speech?

Answer 45

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

Question 46

what is a prior restraint in the 1A context?

Answer 46

prevent/punish speech before it occurs ask: some special societal harm that justifies the restraint?

Question 47

what level of scrutiny is applied to gov speech?

Answer 47

rational basis

Question 48

what is the free exercise clause?

Answer 48

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

Question 49

when does a law burden religion?

Answer 49

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

Question 50

what is the establishment clause?

Answer 50

prohibits gov sponsorship (aiding or formally establishing) of religion