Con Law

Question 1

Strict Scrutiny

Answer 1

Applies to regulations affecting fundamental rights (interstate travel, voting, privacy, & first amendment rights) or involving suspect classifications (race, national origin, and alienage). For strict scrutiny to be applied, there must be intent by the government to discriminate.

Burden is on government to overcome the presumption that the law is unreasonable.

Regulation is upheld if it’s necessary or narrowly tailored to achieve a compelling government purpose. There must be no less restrictive means to achieve this goal.

Question 2

Intermediate Scrutiny

Answer 2

Applies to regulations involving quasi-suspect classifications (gender and legitimacy). For intermediate scrutiny to be applied, there must be intent by the government to discriminate.

Burden is on the government to overcome the presumption that the law is unreasonable.

Regulation is upheld if it’s substantially related to an important government purpose.

Question 3

Rational Basis Standard

Answer 3

Applies to all other regulations that do not affect fundamental rights or involve suspect classifications. Non-suspect classifications include age, disability, and poverty.

Regulation is upheld if it’s rationally related to a legitimate government purpose. The law is usually valid unless it’s arbitrary or irrational. Plaintiff must prove the law is not rationally related.

Question 4

Libel

Answer 4

Defamation in print, writing, or pictures that’s injurious to one’s reputation, exposes one to public hatred, contempt or ridicule, or injures one in his business or profession.

Question 5

Actual Malice

Answer 5

Statement made with knowledge of its falsity or with reckless disregard for its truth.

Question 6

Invasion of Privacy

Answer 6

Publishing private info about a person that would be objectionable to a reasonable person.

Truth is not a defense. If matter is of public concern, publication is privileged absent actual malice.

Question 7

Obscenity

Answer 7

Depiction of sexual conduct that, taken as a whole, by the average person: (1) appeals to the prurient interest in sex using contemporary community standards; (2) portrays sex in a patently offensive way using community standards; and (3) using a national, reasonable person standard, does not have serious literary, artistic, political, or scientific value.

Question 8

When is closure of courts acceptable?

Answer 8

Supreme Court held in criminal cases, trials and pretrial proceedings can be closed only if closure is (1) necessary to preserve an overriding interest, and (2) closure is narrowly tailored to serve overriding interest.

Question 9

Prior Restraint

Answer 9

Court order or administrative system that keeps speech from occurring.

Government must show some special societal harm will otherwise result. To be valid, a prior restraint must follow these safeguards:

(1) standards must be narrowly drawn, reasonable, and definite;
(2) injunction must be promptly sought; and
(3) there must be prompt and final determination of the validity of the restraint.

Question 10

Establishment Clause

Answer 10

Prohibits government from taking action respecting the establishment of religion.

Where no sect preference is involved, government action will be upheld if it: (1) serves a secular purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it doesn’t produce excessive government entanglements with religion. (Lemon Test)

Question 11

Spending Power

Answer 11

Congress may spend (for any public purpose) to provide for the common defense and general welfare.

Question 12

Commerce Power

Answer 12

Congress has power to regulate all foreign and interstate commerce. To be within the power, a federal law regulating interstate commerce must either regulate:

(1) channels of interstate commerce,
(2) instrumentalities of interstate commerce and persons and things in interstate commerce, or
(3) activities that have a substantial effect in the aggregate on interstate commerce.

Question 13

Intrastate Activity

Answer 13

Court will uphold the regulation if it’s of economic or commercial activity and Court can conceive a rational basis on which Congress can conclude the activity in aggregate substantially affects interstate commerce.

Court won’t aggregate noncommercial, noneconomic activity, and regulation will be upheld only if there’s a substantial economic effect on interstate commerce, which is hard to show.

Question 14

Presidential Treaty Power

Answer 14

President can enter into treaties with consent of 2/3 of the Senate.

Question 15

Article IV - Privileges and Immunities Clause (state citizenship)

Answer 15

Prohibits discrimination by a state against nonresidents when the discrimination concerns fundamental rights (rights relating to important commercial activities) or civil liberties. It only applies if the discrimination is intentionally protectionist in nature. Corporations and aliens are not protected by this clause.

Example: a state statute requiring a $1,000 license from nonresident commercial fishermen, while residents pay $25 is invalid. But the same scheme for recreational hunting would be upheld.

Exception: the state law may be valid if the state has a substantial justification for the different treatment. The state must show that nonresidents either cause or are part of the problem the state is attempting to solve and there are no less restrictive means to solve it.

Question 16

Article XIV (14) - Privileges and Immunities Clause (national citizenship)

Answer 16

Prohibits states from denying citizens privileges or immunities of national citizenship, such as the right to petition Congress for redress of grievances, right to vote for federal officers, and right to interstate travel (including right of newly arrived citizens of a state to enjoy the same privileges and immunities as other citizens of the state).

Corporations are not protected by this clause.

Question 17

Bills of Attainder

Answer 17

Legislative acts that inflict punishment on individuals without judicial trial. Both federal and state governments are prohibited from passing bills of attainder.

Question 18

Discriminatory Intent

Answer 18

Remember: facially, by application, or motive

Can be shown by: (1) a law that’s discriminatory on its face; (2) discriminatory application of a facially neutral law; or (3) discriminatory motive behind the law (hardest to prove).

Question 19

Fundamental Rights

Answer 19

Right to privacy, vote, and travel.

Question 20

Right of Privacy

Answer 20

Remember "CAMPERS". Strict scrutiny standard.
Contraception
Abortion
Marriage
Procreation
Education (private)
Relations (family)
Sex

Question 21

Right to Vote

Answer 21

Strict Scrutiny. 30 day residency requirement is okay.

Question 22

Time, Place, and Manner Restrictions on Public and Designated Public Forums

Answer 22

To avoid strict scrutiny, which applies to content-based restrictions, a governmental regulation on the time, place, and manner of speech and assembly must:

(1) be content neutral;
(2) be narrowly tailored to serve an important government interest (but it does not have to be the least restrictive means) and;
(3) leave open alternative channels of communication

Question 23

Time, Place, and Manner Restrictions on Limited Public and Nonpublic Forums

Answer 23

Government can regulate speech in such a forum to reserve the forum for its intended use.

Regulations are valid if they are: (1) viewpoint neutral; and (2) reasonably related to a legitimate government purpose (rational basis standard).

Question 24

Public Forum

Answer 24

Public property that’s historically been open to speech related activities.

Examples: streets, sidewalks, parks, the internet.

Question 25

Designated Public Forum

Answer 25

Public property that has not historically been open to speech related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy.

Examples: schoolrooms open for after school use by social, civic, or recreation groups.

Question 26

Limited Public Forum

Answer 26

Government property not historically linked with speech and assembly but opened for specific speech activity.

Examples: school gym open to host a debate on a particular community issue

Question 27

Nonpublic forum

Answer 27

Government property not historically linked with speech and assembly and not held open for speech activities.

Examples: military bases, schools while class is in session, government workplaces, etc.

Question 28

Unprotected Speech

Answer 28

(1) inciting imminent lawless action
(2) fighting words
(3) true threats
(4) obscenity
(5) defamatory speech
(6) some commercial speech (misleading or fraudulent)
(7) child porn

Question 29

Establishment Clause Lemon Test

Answer 29

Government action will be invalid unless that action:

(1) has a secular purpose;
(2) has a primary effect that neither advances nor inhibits religion; and
(3) does not produce excessive government entanglement with religion.

Question 30

Political Questions

Answer 30

Issues committed by the Constitution to another branch of government, or those inherently incapable of resolution and enforcement by the judicial process.

Question 31

Standing Elements

Answer 31

(1) Injury in-fact (usually economic)
(2) Causation (can only sue person who caused injury)
(3) Redressability (court must be able to make you whole)

Question 32

Third Party Standing

Answer 32

Sellers of goods may have third party standing to challenge a law that adversely affects the rights of their customers. Must show (economic) nexus.

Question 33

When can Supreme Court review a state court decision?

Answer 33

(1) It must have been a final judgment, (2) it must have come from the highest state court, (3) it must pose a substantial federal question, and (4) the state court’s decision did not rest on adequate and independent state grounds.

Question 34

Advisory Opinion

Answer 34

Supreme Court cannot issue advisory opinions. If the advise of the court would have no legal affect on the parties, it’s an advisory opinion.

Question 35

Commerce Clause/Power (Intrastate Activity)

Answer 35

Market participant exception: Commerce Clause does not prevent a state from preferring its own citizens when the state is acting as a market participant (buying/selling products, hiring labor, giving subsidies, etc.)

Economic or commercial activity: (aggregation)
Courts will uphold the regulation if court can conceive a rational basis on which Congress can conclude in the aggregate substantially affects interstate commerce.

Non-commercial/non-economic activity: (no aggregation)
Courts will NOT aggregate and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce.
Example: guns in school zones

Question 36

Independent and Adequate State Ground Theory (IASG)

Answer 36

Supreme Court will not review a federal question if the state court decision rests on independent (separate) and adequate (sufficient) state grounds. IASG exists if the outcome would be the same regardless of how the federal question is decided.

The Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds.

Question 37

Dormant Commerce Clause

Answer 37

State regulations must not discriminate against interstate commerce or unduly burden it. For a regulation to discriminate against interstate commerce, it must treat economic interests from within the state differently from those outside the state.

Question 38

13th Amendment

Answer 38

Neither slavery nor involuntary servitude shall exist within the US. Gives Congress the power to adopt appropriate legislation to enforce the proscription.

Question 39

14th Amendment

Answer 39

Prohibits states from discriminating on the basis of race. Does not extend to private conduct.

Question 40

Compensating for past discrimination against women

Answer 40

Substantially related to an important government objective.

Question 41

Commercial Speech Restrictions

Answer 41

If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid if it: (1) serves a substantial government interest, (2) directly advances the interest, and (3) is narrowly tailored to serve the substantial interest.

While this test doesn’t require least restrictive means be used, there must be a reasonable fit between legislation’s end and means chosen. The greater the restriction, the less likely it will be deemed reasonable.

Question 42

11th Amendment

Answer 42

Prohibits federal courts from hearing most private actions against state governments, including actions in which the state is named as a party or will have to pay retroactive damages.

Exception: parties may bring actions to enjoin an officer from future conduct that violates Constitution or federal law, including enjoining appropriate state official from enforcing unconstitutional state laws.

11A Exception: Congress can remove 11th Amendment immunity as to actions created under the 14th Amendment (state racial discrimination).

Question 43

Moot

Answer 43

Federal courts may only decide live controversies where plaintiff suffers ongoing injury.

Though injury has passed, a suit is not moot if: (1) injury is capable of repetition yet evades review because of inherently limited duration (like pregnancy), (2) defendant voluntarily ceases challenged activity, but may restart at will, or (3) in class actions, one plaintiff suffers ongoing injury.

Question 44

War Power

Answer 44

Congress alone has power to declare war, but the President as Commander in Chief has broad discretion to deploy troops internationally to protect American lives and property.

Question 45

One Person, One Vote

Answer 45

Congressional/Federal Representatives: must use almost exact mathematical equality when creating congressional districts within a state. (0.7% variance was invalidated).

State and Local Representatives: requires population of voting districts be substantially equal. A variance in number of people in district must not be unjustifiably large, but districts need not be within a few percentage points of each other. (16% variance upheld as reasonable in light of state interest in preserving political subdivisions and geographical factors. Below 10% is presumed valid.)

Question 46

Takings

Answer 46

Federal government may not take private property unless there’s (1) a public use (any legit public purpose the government reasonably believes will benefit the public), and (2) just compensation (fair market value at time of taking).

Bright-line rule: if the regulation leaves no economically viable use (not merely diminished property value), it’s a taking!

Question 47

Contracts Clause

Answer 47

No state shall pass any law impairing the obligation of contracts. Applies to state and local laws only, not the federal government or judicial decisions.

Private contracts: substantial impairment of existing rights invalid unless there’s a legit/significant purpose and reasonable/appropriate means.

Public contracts: heightened scrutiny (intermediate or strict).

Question 48

What is Speech?

Answer 48

Words, symbols, or expressive conduct.
Expressive conduct is inherently expressive, intended to convey a message, and reasonably likely to be perceived as conveying a message.

Question 49

Incitement

Answer 49

Unprotected speech. Advocacy of lawless action is incitement if it is (1) intended, and (2) likely to produce imminent lawless action. Thus, must show imminent illegal conduct is likely and that the speaker intended to cause it.

Mere advocacy of lawlessness is protected speech.

Question 50

Fighting Words

Answer 50

Unprotected speech. Words likely to provoke an immediate violent response in someone.

Question 51

True Threats

Answer 51

Unprotected speech. Words intended to convey a serious threat of bodily harm or personally abusive words likely to incite immediate physical retaliation in the average person.

Question 52

Appointment Clause

Answer 52

Permits Congress to vest appointments of inferior officers only in the President, courts, or heads of departments. Enforcement is an executive act; therefore, Congress cannot appoint its own members to commissions to exercise enforcement powers. A duly appointed commission does have power to make rules and regulations governing subject matter for which it is appointed.

Question 53

14th Amendment Equal Protection Clause

Answer 53

Prohibits states and subsidiary state governments and entities from treating similarly situated people in a dissimilar manner without adequate justification.

Question 54

When does private action constitute state action?

Answer 54

(1) When the private actor is performing a traditional and exclusive state function.

The Supreme Court has found only running a town or election to be a traditional and exclusive state function.

(2) When the state is significantly involved in the private action.

The Supreme Court has found significant state involvement when enforcement of the private action involves the use of courts or when private entities are entwined with government entities.

Question 55

Defamation

Answer 55

Unprotected speech.

Tortious statement that injures a 3rd party’s reputation. Statement must’ve been published to a 3rd party, including libel (written) and slander (spoken).

Public figures must show actual malice to bring defamation action.