con law Flashcards

1
Q

State Action

A

a private action may be considered state action if the private action was: encouraged by gov, the private actor undertakes a traditional government function or excessive entanglement between private actor and government

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2
Q

State sovereign immunity

A

a fed statute abrogates 11th amendment immunity if 1) the act expressly states that it does so abrogate state immunity and: 2) act was enacted under a congressional power that postdates 11th A.

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3
Q

Dormant Commerce Clause

A

prohibits states from discriminating against interstate (out of state) commerce or placing undue burdens on it. Strike down unless: necessary and least restrictive means to achieve compelling gov purpose (SS)

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4
Q

14th Amendment Equal Protection

A

prohibits states from enacting legislation that intends to discriminate against persons on the basis of race, national origin, and alienage. - state gov only- no feds!
*if classification is likely an equal protection problem

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5
Q

Unprotected speech- Incitement

A

gov has a compelling interest in regulating the content of speech that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (Brandenburg) *must advocate for illegal conduct

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6
Q

Unprotected speech- fighting words

A

words that tend to incite an immediate breach of the peace( likely to cause a violent reaction)

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7
Q

Designated or limited public forum

A

public property is not traditionally open but gov has made it available for speech on a permanent or temporary basis

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8
Q

Content-based speech regulation in public or designated forum

A

content based regulation presumed unconstitutional and upheld only if gov shows regulation necessary to achieve compelling state interest
*exception: governemnt office buildings as long as viewpoint neutral

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9
Q

Time Place and Manner regulation

A

TPM regulations of speech in public forum (streets, sidewalks and designated public forums) are valid of regulation is : content neutral, narrowly tailored , serve substantial gov interest, and leaves open alt channels

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10
Q

regulation of speech-related conduct

A

valid if the regulation is narrowly tailored to serve a substantial gov interest and is unrelated to suppression of expression

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11
Q

Speech in schools

A

Tinker- children in public schools have some first amendmnet rights but scjools have greater leeway to regulate than state

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12
Q

Commandeer

A

congress may regulate the states but may not commandeer the states to regulate private conduct.

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13
Q

Commerce Clause

A

Permits Congress to regulate channels of interstate commerce (highways and phone lines), people, and instrumentalities that work/travel in the channels (planes and pilots) and activities substantially affecting commerce

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14
Q

Activities that substantially affect interstate commerce

A

When congress regulates an economic or commercial activity that affects interstate commerce, the regulation will be upheld if the regulated activity in the aggregate has a substantial effect on interstate commerce

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15
Q

Regulatory Taking (eminent domain)

A

government action that is not a physical taking or occupation may be a regulatory taking. Balance: 1)economic impact, 2)extent to which regulation interferes with investment-backed expectations; and 3)the character of governments action

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16
Q

Taking (eminent domain)

A

a condition imposed by gov in exchange for a benefit is not a taking if: 1)condition is rationally related to the governments purpose for regulating and 2)government makes an individualized determination that the burden created is roughly proportionate to the government reason for regulating