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Bar Exam > Con Law > Flashcards

Con Law Flashcards

1
Q

11th amendment state sovereign immunity

A

prohibits a party from suing a state or state agency in federal court unless
consent
suit pertains to law adopted under section 5 of 14A
suit is against state official

does not apply to local gov, state v. state suits, or suit by fed gov against state

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2
Q

standing

A
  1. injury in fact: concrete and particularized injury
    injunctive/declaratory relief = P must show concrete, imminent threat of future injury
  2. causation and
  3. injury is redressable by court order
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3
Q

third party standing

A

prohibited unless

  1. close relationship exists
  2. difficult or unlikely for third-party to assert their rights on their own or
  3. third-party is an organization and suit is brought on behalf of members and is related to an issue germane to org purpose, members would have standing to sue, and member participation is not necessary
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4
Q

ripeness

A

whether the case is ready to be litigated
case is ripe when actual harm or an immediate threat of harm exists

pre-enforcement review of state statute allowed after considering hardship of parties if no review and fitness of the record

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5
Q

mootness

A

when a dispute has ended or was resolved before review

exceptions:
1. capable fo being repeated but evading review
2. voluntary cessation, but capable of resuming at any time or
3. class actions, where at least one member has ongoing injury

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6
Q

commerce clause

A

applies to channels of interstate commerce, people and instrumentalities of interstate commerce, economic/commercial activity that has substantial effect on interstate commerce

federal regulation of interstate commerce will be upheld when

  1. rational basis
  2. to conclude that the cumulative impact (aggregation)
  3. has substantial effect on interstate commerce

**aggregation not allowed when activity is not commercial or economic in nature

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7
Q

taxing power

A

congress has power to lay and collect taxes, duties, imposts and excises

must be geographically uniform throughout US

16A allows C to collect taxes on income from any source

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8
Q

spending power

A

congress has power to spend for common defense and general welfare

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9
Q

conditions or restrictions on receiving federal funds

A

conditions attached to funding will be upheld if

  1. imposed unambiguously
  2. condition related to federal interest in national program or project
  3. condition is not so coercive as to turn pressure into compulsion and
  4. spending it is attached to is for the general welfare
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10
Q

domestic powers of the president

A

execute laws
appoint ambassadors, counsels, fed judges, and officers (with senate advice and consent)
appoint inferior officers when C gives power
remove cabinet-level appointees without cause
remove independent regulatory agency appointees without cause unless C imposes a law requiring good cause
pardon federal crimes and
act as commander in chief of military

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11
Q

treaty & foreign affair president powers

A

pres shares treaty powers with C. treaties may be negotiated by pres, but must be ratified by Senate

pres has the power to enter into exec agreements without Senate approval

pres has power to control and deploy US troops in other countries

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12
Q

delegation of C powers

A

congress may delegate legislative powers if

  1. the powers are delegable under constitution and
  2. congress provides reasonably intelligible standards to guide the delegation

non-delegation doctrine: C cannot delegate powers it does not have

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13
Q

state immunity

A

all powers not granted to the fed are reserved for the states unless prohibited by constitution

congress cannot compel state gov’t to implement legislation but may induce action by attaching restrictions and conditions pursuant to spending power

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14
Q

dormant commerce clause

A

a state may regulate commerce if congress has not enacted laws on subject matter (if laws regulating it are enacted, state law is preempted)

states cannot pass laws that discriminate against out of state commerce or place an undue burden on interstate commerce

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15
Q

dormant commerce clause - unduly burdensome regulations

A

laws that are not discriminatory, but place undue burden on interstate commerce are unconstitutional when

  1. burden is on interstate commerce
  2. clearly excessive to the putative benefits to state or local gov’t
    * balancing test on case by case basis
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16
Q

dormant commerce clause - discriminatory regulations

A

discriminatory regulations: laws that are discriminatory or have a discriminatory impact are unconstitutional unless

  1. burden is narrowly tailored to achieve a legit, non-protectionist state objective or
  2. state is a market participant rather than a regulator of economic activity
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17
Q

preemption

A

under the supremacy clause, a validly enacted federal law will always preempt conflicting state law
- express - occurs when the fed law specifically states that it is exclusive
implied - occurs when direct conflict with state law or state law substantially interferes with the objective of federal law
- field preemption - fed law is so expansive the state law is unnecessary or consumed by application of federal law

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18
Q

incorporation doctrine

A

amendments are applicable to the states by incorporation through 14A Due Process clause
exceptions: 3A, 5A, 7A

14A Equal Protection is incorporated into 5A DP clause, making it applicable to fed gov’t

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19
Q

government action of a private actor

A

courts will find gov’t action when

  1. traditional public function (powers traditionally and exclusively reserved to the gov’t) or
  2. significant gov’t involvement exists to authorize, encourage, or facilitate private unconstitutional conduct
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20
Q

Due Process

A

no person shall be denied life, liberty or property without due process of law
states - 14A
federal - 5A

  1. substantive - gov’t power to regulate activities
    when regulating fundamental rights (marry, procreate, contraceptive, family, custody, vote, privacy, interstate travel) strict applies (necessary to achieve compelling gov’t interest)
    non-fundamental rights = rational basis test
  2. procedural - certain procedures req when gov’t deprives a person of life, liberty, or property (entitlement)
    adequate due process requires notice, opportunity to be heard, unbiased hearing
    determining procedure req is done by balancing
    - importance of private interests
    - risk of error under current procedure and the value of additional procedures and
    - importance of state interest and burden imposed by additional safe guards
21
Q

equal protection

A

prohibits gov’t from denying citizens equal protection of laws. discriminatory classification exists when law is discriminatory on its face, is applied in discriminatory manner or a discriminatory motive exists

the test is based on the basis of discrimination 
suspect class or infringes on a fund right = strict
quasi-suspect = intermediate 
all other classes = rational basis
22
Q

suspect classes

A

race, nationality, alienage classification under state law

23
Q

quasi-suspect class

A

gender, non-martial children, and likely sexual orientation

24
Q

strict scruit

A

gov’t has burden of showing classification is necessary to serve compelling gov’t interest

25
Q

intermediate scruit

A

gov’t has burden of showing classification is substantially related to an important gov’t interest

26
Q

rational basis

A

plaintiff must show classification is not rationally related to a legit gov’t interest

27
Q

regulatory taking categories

A
  1. depriving owner of all economically viable use (per se taking)
  2. penn central taking - court will balance economic impact of regulation on claimant, the extent of interference with investment-backed expectations and character of regulation
  3. conditions on approval of a permit (land-use exaction) - do not constitute taking if there is an essential nexus b/t state interest and permit condition exists and gov’t makes an individualized determination that condition is roughly proportional to advancing state interest
28
Q

possessory taking

A

gov’t physically occupies the proeprty

29
Q

valid gov’t taking

A

gov’t may take private property for public use if it provides just compensation

public use = rationally related to a conceivable public purpose

just compensation = FMV at time of taking

30
Q

privileges and immunities clause

A

under PI clause of Art IV states cannot intentionally discriminate against non-residents concerning

  1. civil liberties (vote, travel, etc.) or
  2. important economic activities (ability to earn livelihood)
    * *does not protect corps or aliens

discriminatory regulations will be upheld if the state is justified when

  1. substantial reason exists and
  2. discriminatory law has a substantial relationship to that reason
31
Q

establishment clause

A

prohibits govt from est a religion or endorsing/supporting religion

laws discriminatory against religion must meet strict – govt must show

  1. law is narrowly tailored
  2. to achieve compelling interest and
  3. least restrictive means to achieve that interest

laws that do not discriminate, but have a relationship with religion will be upheld if:

  1. secular purpose
  2. primary effect does not advance or inhibit religion and
  3. does not excessively entangle the gov’t with religion
32
Q

free exercise clause

A

prohibits govt from interfering with the exercise of religion

laws designed to interfere with religion are subject to strict – must show:

  1. narrowly tailored
  2. to achieve compelling govt interest and
  3. least restrictive means

laws of general applicability that cause unintentional burdens on religion are constitutional and do not offend the free exercise clause

33
Q

content-based speech restrictions

A

gov’t regulations regarding content of speech (subj matter or viewpoint) are subj to strict scruit (narrowly tailored, compelling interest, least restrictive)

34
Q

content-neutral speech regulations

A

time place manner test: govt may regulate the time, place, and manner of content-neutral speech if gov shows that

  1. the regulation is narrowly tailored
  2. to achieve a significant gov interest and
  3. leaves open alternative channels of communication
35
Q

public forum speech

A

place traditionally available to the public for speech (parks, sidewalks, streets, etc)

content-based – strict

content-neutral – time, place, manner test

36
Q

designated forum

A

a place not traditionally made available for public speech, but gov chose to make it available (school makes classroom open for club meetings)

content-based – strict

content-neutral – time, place, manner test

37
Q

limited public forum

A

non-public forums that were specifically designated by the gov as open to certain groups or topics

gov may regulate speech if reasonable and viewpoint neutral regulation

38
Q

non-public forum

A

places traditionally limited for speech (military bases, schools, jails, airports)

gov may regulate if reasonable and viewpoint neutral

39
Q

unprotected types of speech

A

fighting words - words by which their very utterance inflict injury or tend to incite an immediate breach of peace

incitement of imminent lawless action - clear and present danger test applies – speech advocating the use of force or illegality, intent to direct imminent lawlessness, and likely to incite such action

obscenity - material that appeals to sexual interest of an avg person under today community standards, is patently offensive AND lacks serious artistic, literary, or scientific value (private possession by adult inside home cannot be made criminal other than child porn)

commercial speech - not protected if false or misleading

40
Q

regulation of commercial speech

A

gov may regulate truthful, non-misleading commercial speech if the regulation directly advance a substantial govt interest and is no more extensive than necessary to serve that interest (strict scruit)

41
Q

regulation of speech in public school

A

a school may regulate speech if it shows the conduct regulated would materially and substantially interfere with the operation of the school

42
Q

vague or over-broad regulation of speech

A

vague = does not put the public on reasonable notice as to what is prohibited

overbroad = regulates more speech than is constitutionally permitted

43
Q

punishing a persons membership to group

A

gov may punish a person’s membership in group if proves the

  1. group actively engaged in illegal activity or incites lawless action
  2. person has knowledge of group’s illegal activities and
  3. person has specific intent of furthering those activities
44
Q

regulation of gov employee speech

A

two step process to determine if their speech is protected
1. did employee speak as citizen on a matter of public concern? if no, speech is not protected. if yes, go to step 2
2. did the gov entity have adequate justification for treating employee differently from gen public? (based on gov interest as employer)
the court must balance employees rights vs. gov employer interest

if a gov employee speaks pursuant to their official duties, then speech is not protected

45
Q

prior restraint on speech

A

occurs when gov’t attempts to regulate speech before it happens through court order or licensing req. generally disfavored except in limited circumstances. must satisfy strict.

46
Q

freedom of association regulation

A

the gov may only regulate right to associate if it meets strict scrutiny

show regulation is necessary, to achieve compelling gov interest, and least restrictive means to achieve such interest

47
Q

bill of attainder

A

statute imposing punishment without any trial

applies where DP doesnt b/c DP procedure doesnt apply to legislative acts

48
Q

procedural safeguards required for licensing involving speech or fund rights

A

procedural safeguards for licensing req:

  1. gov has important reason
  2. specific, articulated standard to remove discretion and
  3. procedural safeguards in place, including prompt final judicial decision when denied
49
Q

right against self-incrimination

A

only available for compelled testimonial evidence

testimonial = verbal or otherwise communicative 
compelled = elicited or induced (evid. from free will or given with immunity is not compelled)

***does not apply to companies

Bar Exam (17 decks)

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