Con Law

Question 1

Privileges and Immunities - Article IV

Answer 1

Non-residents, commercial activities or fundamental rights, state law must be necessary to achieve an important gov purpose and there are no less restrictive means available

Question 2

14 - P & I

Answer 2

Applies ot NEW residents, e.g., right to travel
Residency requirements
Will also violate Equal Protection (right to travel is a fundamental right!)

Question 3

Dormant Commerce Clause

Answer 3

(1) Has Congress authorized in this area?
(2) Preempted?
(3) Discriminates?
if so, must be necessary to achieve important non-economic gov purpose AND no nondiscriminatory alternative available
EXCEPTION: Market Participant
(4) Unduly burdens?
Balance benefit/local legit interest and burden, which outweights

Question 4

11th amendment

Answer 4

State cannot be sued by private parties in federal court; applies to private parties, foreign nations, Tribes
Exceptions:
Another state/U.S. can sue a state in Fed Court
Congress can authroize suits under 13/14/15
Can sue state official for injunction

Question 5

Rights

Answer 5

Must have state action! Private companies acting not subject to 14/5 unless they are acting like a state

Question 6

Procedural due process

Answer 6

Deprivation of life, liberty, property
Public employees AT WILL don’t have more protection than private employees
Liberty includes exercise of freedom of speech (e.g., gov employer fires becuase of speech related to public concern but not related to official duties, balance the interests)
Public education, welfare, exc

Question 7

standing

Answer 7

injury in fact (concrete, particularlized)
Causation, redressability
Senator can’t sue over legislative veo

Question 8

Standing - third party

Answer 8

Can assert if (1) difficult for third party to assert own rights and (2) close relationship exists between claimant and third party

Question 9

Organizational standing

Answer 9

(1) members are injured
(2) members injury relates to org purpose
(3) members do not need to be participating in the lawsuit

Question 10

Hierarchy of laws

Answer 10

Constitution –> Treaties and federal statutes –> Executive Agreements –> State Law

Question 11

What might a discriminatory law against interestate commerce invalidate?

Answer 11

Dcc, Article 4, Equal Protection

Question 12

State Taxes

Answer 12

(1) is the tax preempted?
(2) Does the tax discriminate against interstate commerce (invalid if so)
(3) does the state tax unduly burden interstate commerce (no substantial nexus, unfair apportionment, or no fair relationship between tax and benefits) –> invalid if so

Question 13

Due process property interests

Answer 13

welfare benefits, public education, government liceneses, tenured gov employment or term employment (but not at will)

Question 14

Balancing factors for OTBH

Answer 14

Important of the individual’s interest; value of procedural safeguards and adequacy of current ones, against government interest in efficiency

Question 15

Due process rights

Answer 15

Can be waived voluntarily and knowingly

Question 16

Substantive due process

Answer 16

Applies to the fed gov 
Fundamental right (privacy, voting, travel, 1st amendment) SS

Question 17

Equal Protection & Residency Requirements

Answer 17

thirty-day residency to vote and 1 year for divorce are upheld, other 1 year (voting, medical care, welfare) are NOT

Question 18

Right to vote - proportions

Answer 18

Remember, 0 Congressional must be almost exactly proportionaly, state/local must be substantially similar (up to 16% variance is ok)

Question 19

14: Discrimination

Answer 19

(1) discriminates on its face
(2) discrimininates in its application
(3) discriminatory motive/purpose and P shows disparate impact AND discriminatory purpose (impact alone not enough)
Challenger bears the burden of showing discriminatory!

Question 20

Contract Clause

Answer 20

State and local gov cannot impair contract rights that are in existance at time of regulation
If private contract: must narrowly tailored to achieve an important state interet
if public: strict scrutiny

Question 21

Ex post facto laws?

Answer 21

Only apply to criminal cases

Question 22

Speech

Answer 22

Expressive conduct, words, symbolic speech

Question 23

Unprotected speech

Answer 23

Incitment
Fighting words
True threats 
Obscenity
Defamatory speech
Some commercial speech

Question 24

Incitment

Answer 24

intended to produce imminent lawless action and likley to produce such action

Question 25

fighting words

Answer 25

personally abusive words that are likley to incite immediate physical retaliation

Question 26

True threats

Answer 26

Words that are intended to convey to someone the serious threat of bodily harm

Question 27

Obsensity

Answer 27

(1) applies to purient interest (2) patentely offensive (3) lacks serious value

Question 28

Zoning / obscenity

Answer 28

allowed if doesn’t ban entirely and reduces secondary efects froms uch businesses

Question 29

defamation

Answer 29

if abput public official or public figure or public concern, elements of defamation AND falsity and fault must be proven
Public figure suing: must show malice
private: negligence

Question 30

Commercial speech

Answer 30

False/misleading can be regulated
True can be regulated so long as it (1) narrowly tailored to (2) substantial gov interest and (3) directly advances the interest (not least restrictive means)

Question 31

content based speech

Answer 31

subject to SS

Question 32

content-neutral in a public forum

Answer 32

must be (1) narrowly tailored to serve important gov interest and (2) leave open channels of communication 
Can't be overbroad, vague, unfettered! Those are facially invalid, and even one doing unprotected speech won't be subject ot them

Question 33

non-public forum

Answer 33

Viewpoint neutral AND RB applies
if viewpoint, subject to SS

Note - if content-based, that’s fine - it has to be viewpoint neutral

Question 34

Gov employee speech

Answer 34

If within gov official duties, can be regulated or punished based on content, even if issue of public concern
If not within duties, and within public concern, speech can be punished (e.g., fired) only if gov interest in providing public service outweights interest as citizen on commenting upon matters
public issue is taken expansively
if fired in violation (e.g., not within duties, matter of public concern), then entitlted to hearing on if 1st amendment rights were violated

Question 35

Prior restraints

Answer 35

Presumptively unconstitutional, SS of highest order (e.g., war)

Question 36

Nude dancing, zoning laws on adult theatres

Answer 36

IS (important gov interest)

Question 37

right of press

Answer 37

Cannot be restricted, except for narrowly tailored sanction designed to further state interest of highest order

Can publish things of matter of public concern!
Applies to unlawfully obtained speech so long as (1) person publishing wasn’t one who obtained it illegally and (2) relates to matter of public concern and (3) speaker did not have a high expectation of privacy

Question 38

Schools

Answer 38

Speech can be regulated to serve purpose

Question 39

13th amendment

Answer 39

likley to apply if congress is regulating PRIVATE action that is badge or incident or slavery (e.g., private contracts)