cn law

Question 1

11 precludes

Answer 1

federal courts from exercising jurisdiction of a private party to recover damages from the state without abrogation from states.

Question 2

what is a taking

Answer 2

“physical” and “Regulatory”
“physical” - permanent physical occupation regardless of what public interest
“Regulatory” - deprives the owner of all economically benifcial use of investment-backed expectations, it is a taking.. &

Question 3

what is an exaction

Answer 3

government enacts a regulation that restricts the owner’s use of a property as a condition to allowing the owner to develop the land.

Exception
“legitimate government interest”

and

“rough proportionality”

(i.e., the adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner).

Question 4

Start first amendment essay by saying

Answer 4

“The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.”

“government regulation”
of “private speech”

Question 5

Symbolic Speech

Answer 5

Symbolic speech: a law which regulates conduct and places an incidental burden on speech is constitutional if the regulation is

“narrowly tailored”
to an

“important governmental interest”
and is

“unrelated to the suppression of the speech.”

Question 6

Unprotected Speech

Answer 6

A law regulating unprotected speech needs to pass “rational basis” scrutiny. The following categories of speech are not protected under the First Amendment:

Question 7

Speech inciting immediate lawless or violent behavior (“clear and present danger”):

Answer 7

speech that is “directed at inciting” and “likely to incite” imminent lawlessness.

Question 8

Fighting words:

Answer 8

words likely to incite an “immediate violent reaction.”

Question 9

True threats or words as conduct:

Answer 9

defamation, harassment, and other forms of “words

as conduct.”

Question 10

Obscene speech:

Answer 10

The test for obscenity examines whether the speech appeals to a
prurient interest in sex, whether it depicts or describes sexual conduct in a patently offensive way, and whether it lacks serious literary, artistic, political, or scientific value. Obscene speech is not usually tested.

Question 11

Commercial speech:

Answer 11

the law must meet the Central Hudson test, which states that

(1) the speech must be “lawful and not misleading,” (2) the statute must serve a “substantial governmental interest,”
(3) the statute must “directly advance that interest”, and
(4) the statute must be “narrowly tailored.”

Question 12

Sexual or indecent speech:

Answer 12

the law must serve a “substantial governmental interest” and leave open “reasonable alternative channels” of communication.

Question 13

Time-place-or-manner restriction:

Answer 13

A restriction in a public forum—i.e., one historically associated with free speech rights (e.g., streets, sidewalks, parks), or a designated public forum (e.g., a school that opens its doors to after-school activities) must be “content neutral, narrowly tailored
to serve an
“important governmental interest,”
and leave open
“alternative channels”
of
“communication.”
A restriction in a nonpublic forum (e.g., airports, government workplaces, etc.) must be
“viewpoint neutral”
and reasonably
“related to a legitimate governmental interest”

Question 14

Speech in public schools:

Answer 14

students have free speech rights; however, speech in schools may be regulated so long as the regulations are “reasonably related” to “legitimate pedagogical” (educational) concerns.

Question 15

Principles to keep in mind:

Answer 15

There is a presumption against a “prior restraint”
(stopping speech before it happens). If a law is “overbroad”
(prohibits substantially more expression than necessary) or “vague” (a reasonable person could not tell what is prohibited by the law), it is unconstitutional.

Question 16

Rights of the press:

Answer 16

The press has no greater free speech rights than anyone else. The press may publish information that is lawfully obtained and that is a matter of public concern.

Question 17

Rights of corporations:

Answer 17

independent political expenditures by a for-profit corporation constitutes free speech protected by the First Amendment.

Question 18

the Equal Protection Clause has three standards to be aware of:
Strict scrutiny:

Answer 18

The government must prove that the law is narrowly tailored (necessary) to achieve a compelling interest. (The government usually loses under a strict scrutiny analysis.) Strict scrutiny applies to fundamental rights, racial or ethnic discrimination, and alienage when the classification is made by the state (though there are exceptions for alienage where strict scrutiny does not apply—e.g., if the public- function doctrine applies or if the law regulates illegal aliens).

Question 19

Intermediate scrutiny:

Answer 19

The government must prove the classification is substantially related to an “important government interest.”
This applies to classifications regarding gender and illegitimacy.

Question 20

Rational basis:

Answer 20

The plaintiff must prove that the law is not rationally related to a legitimate government interest. (The plaintiff usually loses.) This applies to every other classification—poverty, wealth, age, education, etc.

Question 21

state action is required in order to sue under the First, Fourteenth, or Fifteenth Amendment.

General rule:

Answer 21

f a plaintiff is suing under the First, Fourteenth, or Fifteenth Amendment (for free speech, due process, Equal Protection Clause issues, or voting rights) the plaintiff needs to find a government actor or action “fairly attributable to the government.” (One cannot sue a business or a private individual
for, say, violating one’s free speech rights under the First Amendment.)

Question 22

State action:

Answer 22

state action is present when a state passes a law, when a state permits its officials to take action, when a private actor is performing a traditional and exclusive government function (e.g., conducting elections, or running a company town—this is pretty narrow), or when private action is
closely controlled by the state.

Question 23

Congress can regulate the channels and instrumentalities of interstate commerce, persons and things in interstate commerce, or anything that has a

Answer 23

“substantial effect” on interstate commerce—meaning, it can regulate anything economic or anything noneconomic that “substantially affects” interstate commerce (even if it is purely “intrastate”—i.e., within a state).

Question 24

Congress cannot, however, “commandeer” states and force states to enforce federal laws.

Answer 24

Congress will either have to regulate directly (if within its commerce power) or regulate indirectly by threatening to take away funding if the state does not adopt a law (under Congress’s spending power). (

Question 25

States lack the power to discriminate against interstate commerce or unreasonably burden it. (This is known as the Dormant Commerce Clause or negative Commerce Clause.)

Answer 25

If a law discriminates against interstate commerce, it is invalid unless the state can show that the law was necessary to serve a compelling state interest and there is no reasonable nondiscriminatory alternative (strict scrutiny). ***A state law that discriminates against interstate commerce is usually unconstitutional.

Question 26

Non-discriminatory

Answer 26

If a state law is nondiscriminatory on its face(i.e.,it imposes the same burden on those in-state and out-of-state) but it still burdens interstate commerce, it is valid only if it serves an important state interest and does not impose an unreasonable burden on interstate commerce. ***A state law that merely burdens interstate commerce is more likely to be constitutional.

Question 27

Exception to Dormant commerce clause

Answer 27

A tested exception to the Dormant Commerce Clause is the market-participant doctrine (i.e., the state is acting as a market participant or business rather than regulator). If the state is acting as a “market participant,” it is allowed to favor its own residents.