CON LAW

Question 1

Article 3 - When does federal judicial power apply?

Answer 1

(1) Interpreting the constitution and (2) disputes between states, states and foreign citizens and citizens of diverse citizenship

Question 2

What is soverign immunity and what does it prohibit?

What are the exceptions to SI?

Answer 2

Jurisdictional bar that prohibits (1)Citezens of one state or a foreign country from suing another state in federal court for money damages and equitable relief AND (2) suits in federal court against state officals for violating state law.

(1) consent by state
(2) Injunctive relief when state offical is named as D if state law violates federal law
(3) individual damages - if state offical and not state has to pay
(4) Congressional authorization if trying to enforce 14th amendment.

Question 3

What are the elements of standing?

Explain taxpayer standing

Third party standing

Organizanational standing

Answer 3

(1) Injury in fact - concrete and particularized
(2) Causation - fairly traceable
(3) Redressability

Taxpayer usually does not have standing but can challange how much she owes and spending in violation of establishent clause.

If P has standing in own right they can assert rights of third party If (1) 3rd party difficult or unable (2) Special relationship or (3) p’s injury adversely affects relationship with 3rd party.

Org can bring action when it has suffered an injury - org can also bring action on behalf of its members if (1) its members would have standing to sue in their own right AND the interests at stake are germance to the orgs purpose.

Question 4

Explain ripeness

Explain mootness and its exceptions

Answer 4

P must have suffered real injury or imminent threat thereof.

You must have live controversey at each stage of review. Exceptions are :

(1) Capable of repetition, yet evading review - abortion once the woman is no longer pregnant
(2) voluntary cessation
(3) class actions - even if named party’s claim is resolved, it wont be deemed moot.

Question 5

What is an advisory opion

What is a declatory judgement?

Answer 5

No opinon on abstract or hypothetical dispute, must be an actual case or controversy.

A declatory judgement is where the court determines the legal effect of proposed conduct without awarding damages or injuctive relief as long as the question poses a real and imminent danger to parties interests.

Question 6

What is a political quesiton and when does it arise?

Answer 6

(1) const has assigned decision making on the matter to diffrent branch OR
(2) matter is inherently not one that the judiciary can decide.

Question 7

What is the necessary and proper clause?

Answer 7

(1) congress can exercise auxillary powers necessary and proper to carry out enumerated powers. howveer, does not stand alone.

Reminder - if congress passes new law, you must first explain their enumerated power.

Question 8

When does congress have the power to tax?

Congress may spend to provide for the?

Answer 8

Taxes will be upheld if (1) bears reasonable relationship to revenue productino or (2) congress has the power to regulate the activity taxed.

common defense and public welfare. Congress may spend for any public purpose. Howerver, remember, congress does not have general police powers. Moreover, “spending strings must relate to purpose of spending and cannot be unduly coercive.

Question 9

What is an independent and adequate state ground?

Answer 9

Supreme court will not review a federal question if the state court decision rests on state law ground.

Question 10

What is the commerce power? and what are the limits on congress under prong 3?

Answer 10

Congress can regulate (1) instrumentalities (2) channels, and (3) substantial affects of interstate commerce.

Subtantial affects - (1) regulation of economic or commercial activity and (2) rational basis on which congress could conclude the activity in the aggregate affects interstate commerce.

However, non commercial and non economic - congress must show direct substantial effect on IC.

Question 11

What is required by congress when delegating legislative power?

Answer 11

(1) intelligeble standards and (2) power cant be uniquely confined by congress.

Question 12

What is the scope of presidential power?

Answer 12

(1) Express or implied authorization - power is highest
(2) Congressional silence - power is diminished and action is invalid if it interferes with power of another branch
(3) Congressional disapproval, power is lowest and likely invalid.

Question 13

What are treaty and executive agreement’s affects on current and future state and federal law?

Answer 13

Treaty - trumps existing and future state law, but only exisiting federal law.

Executive agreements - trumps existing and future state law but federal law alwayst trumps.

Question 14

Executive privilege and immunity

Answer 14

President has privilege to keep certain communications secret - National security given highest deference. In criminal proceedings, communications are allowed if prosecution shows need.

President has absolute immunity from civil damages based on any action he took within his officila responsiblities as president. However, no immunity for acts that occured before.

Question 15

What are the exclusive state powers?

How may congress regulate the states?

Answer 15

10th amendment - all powers not assigned to congress are given to the states.

Virtually unlimited power to regulate states as long as it is pursuant to enumerated power. However, congress may not commendeer states byt may encourage state action through spending and taxing powers.

Question 16

What is the dormant commerce clause?

What are its exceptions?

Answer 16

State action cannot - (1) discriminate against out of state commerce or (2) unduly burden interstate commerce.

Pure discrimintion is subject to strict scrutinity.

A non discriminatory law will be held unconstitional if the burden is clearly excessive to local benefits.

(1) market particpant
(2) Favors state or local gov entities performing traditional government function
(3) congress permits.

Question 17

What is the supremecy clause?

What is implied preemption?

Answer 17

Federal law is supreme law of the land and any state law that directly or indirectly conflicts is void.

(1) field preemption - pervasive regulation
(2) Direct conflict - State law requries conduct forbidden by federal law or makes it impossible to comply with both
(3) Indirect conflict - frustration of federal law purpose.

Question 18

What is the state action requirement?

When does state action exist in cases of private parties?

Answer 18

Constitution only protects wrongful conduct by government.

(1) private party carries on activies traditional or exlusively performed by state
(2) sufficient mutual contacts between gov and private party ( what is degree of state involvement?)

Question 19

What is required by procedural due process under 5th (fed) and 14th(state) amendements?

When can propety be deprived with physcial taking of tangible property? give examples

What is the test for how much process is required?

Answer 19

No intentional deprivation of life, liberty, or property with (1) notice (2) opportunity to be heard (3) nuetral decision maker.

If person has legitimate claim or entitlement that they reasonably expect to continue recieveing ( welfare benefits, continued attendance at public school).

(1) importance of interest
(2) value of specific procedural safegaurds to that interest AGAINST
(3) Government interest in efficinecy.

Question 20

What is the anlaysis for substantive due process?

What are the fundamental rights?

Answer 20

Fundamental interest - SS, non fundamental interest - RBR.

(1) interstate travel
(2) Right to privacy which includes consensual sex,condoms, marriage, right to raise your children how you see fit, right of related persons(cousins case) to live with eachother.
(3) right to vote

Question 21

What is the test for abortion restrictinos post casey?

Do governments have to pay for abortion?

Answer 21

Abortion is a fundemantal right by subject to undue burden standard, not SS.

Pre viability - no undue burden.

Post - can regulate unless mother’s health is in danger.

no.

Question 22

Equal protection defintion

What is the standard of review for different classifications? What are those classifications?

How do you prove intent to disciminate?

Answer 22

14th amendment prevents congress from denying citizens equal protection of the law.

Suspect gets SS - Race, ethnicity, natural origin and alienage. (*state)

Quasi gets IS. - Gender and legitimacy.

A law that is disciminatory on its face, a discriminatory application of a facilly neutral law OR a discriminatory motive behind a facially neutral law that produces disparate effects.

Remember - anything else gets RBR. dont be fooled by mean shit to old people, poor people, or disabled people.

Question 23

What does the law allow under affirmative action plans under equal protection?

Answer 23

The supreme court has held that remedying past discrimintation is a compelling government interest if the group has been subjected to persistent and readily identifiable past discrimination.

Narrowly tailored - no quotas, or outcome determinative point schemes for example.

Question 24

What is required by the takings clause?

What is a regulatory taking and what is the test?

What is a per se taking?

Answer 24

(1) public use - this is easy standard - challenger must show transfer of property is not rationally related to any conceviable gov purpose.
(2) just compensation - fair market value at time of taking.
(1) economic impact (2) interference with investor backed expectations (3) character of regulation.(how must will this benefit society)

Permanent physcial occupation (law requireing landlord to install equipement) or permanent total loss.

Question 25

When can a local government exact promises from a developer? (setting portion of land aside for public use)

Answer 25

(1) essential nexus between legitimate state interest and conditions imposed AND rough proportionality between burden imposed and impact on development.

Question 26

What does the Privileges and immunities clause prevent states from doing?

Answer 26

Out of state citizens are protected from discrimination with respect to fundamental rights or essential activites ( employment, political process). However, this will be allowed if state can show substantial reson for discrimination

(1) out of state citizens cause or apart of the problem state is attempting to solve AND
(2) no less restrictive means to solve.

Question 27

What does the contract clause prevent? Does it apply to fed?

Answer 27

annot enact law that retroactively impairs contractual rights.

Private k - legitimate or signifcant purpose and appropriate means.

Public k - SS or IS.

Question 28

What are ex post facto laws?

What are the three ways they occur?

Answer 28

Retroactively atlers or punishes criminal offenses in a substantially prejudical manner of past activity.

(1) makes criminal an act that was innocent when done
(2) Greater punishment then when act was done
(3) Reduces evidence required to convict of crime.

Question 29

What is a bill of attainder?

Answer 29

Legislative acts that inflict punishment without a judicial trial.

Question 30

When can the government regulate symbolic acts?

Answer 30

important interest independent of supression and incidental burden on speech is no greater than necessary.

Question 31

What is the overbreadth doctrine?

What is the vaugness doctrine?

Answer 31

A Regulation that punishes substnatial amount of protected speech in relation to its plainly legislative sweep, is facially invalid. ( LAX ban on first amendment activity).

Does not put public on reasonable notice as to what is prohibited.

Question 32

WHen is a prior constraint allowed?

Answer 32

If there is a particular harm to be avoided( troop movement example or

WHen procedural safegaurds, which are narrowly drawn, reasonable, and definite, are provided to the speaker.

Question 33

What is the free speech analysis steps?

Answer 33

1. is it speech?
2. Is it protected?
3. General restrictions which are CB get SS, but if they are content nuetral get IS.
4. If it is a public forum or designated forum, same as 3.
5. If it is limited or non public forum, then needs to be reasonable and not view point based. If VB, SS.
6. If in school, content based must show substantial disruption. SChool speech, legitimate pedagocial concern.
7. Public employment - no protection for private concern at workplace or public concern pursuant to duty. Balancing test for private concern outside workplace or public concern as citizen.
8. Is the restriction vauge, overbroad, or a prior restraint?

Question 34

What are the categories of unprotected speech?

Answer 34

1. incitement
2. fighting words
3. obscentiy
4. true threats
5. Defamatory speech
6. Some commercial speech.

Question 35

What are the elements of incitement speech?

Answer 35

1. Imminent unlawful conduct is likely and (2) speaker intended.

Question 36

What are fighting words?

Are viewpoint based fighting word stattues allowed?

Answer 36

Likley to incite immediate physcial retation in average person.

No, supreme court will not tolerate.

Question 37

What are the elements of obsecne material?

Answer 37

(1) sexual conduct which taken as a whole by the average person in the community (2) appeals to prurient interest in sex (3) is patently offensive and (3) lacks sersious social value.

Question 38

When commerical speech be regulated?

Answer 38

(1) substantial government interest
(2) directly advances interst
(3) narrowly tailred.

Therefore, complete bans on truthful commerical speech are never allowed.

Question 39

What does FOA protect?

When can the government bar someone from public employment based on association?

Answer 39

The right to form or particpate in any group, gathering, club or org without gov interference. However, the government may interfere if they sastify SS.

(1) subersive org
(2) knowledge of org illegal actvitiy AND
(3) specific intent to further those activities.

Question 40

What is the free exercise clause and what does it prevent?

Answer 40

Government cannot punish based on religion.

(1) reglious oath
(2) excluding clerics from public office AND
(3) declaring religious belief to be false.

However, congress can deny benefits or impose restriction on someone based on relgion if they satisfy SS - this has never happend.

Question 41

What does the establishment clause compel by the governemt?

When gov action is challenged under EC, what is the test of the regulation or conduct?

Answer 41

Neutrality toward relgion .

(1) secular purpose
(2) primary effect neither advances or inhibits religion AND (3) no execessive entanglement with religion.

Question 42

What is the rule on defeamtory speech?

What is the anlaysis?

Answer 42

Speech made about public officials, public figures, or matters of public concern are protected unless made with actual malice.

Is the P( public offical, public figure, or private figure?

What is the subject matter (public or private concern?)