Con Law

Question 1

5A Takings Clause

Answer 1

Under the 5A takings clause, the government may not take the private property of another citizen for public use without just compensation. A taking can be total or partial

If total or partial,

Public use (HSW) rational basis

Just compensation (FMV)

Question 2

Total Taking

Answer 2

A total taking occurs when the government physically invades or destroys the owner’s property

Question 3

Partial Taking

Answer 3

A partial taking can occur when the government imposes a regulation that substantially deprives the owner of his or her use of the property

Regulation amounts to partial taking, courts consider:

1. economic value of the property to the owner
2. whether the regulation deprives the owner of his or her investment backed expectations
3. the characteristic of the taking and balancing the benefits to community and burden to owner.

Question 4

Procedural Due Process

Answer 4

Under the constitution, the government or states may not pass laws that deprive a person’s life, liberty, or property without the due process of the law. It’s based on fundamental fairness.

Individuals are entitled to a notice of hearing and an opportunity to be heard before he is deprived of life, liberty, or property.

Typically includes notice, hearing, right to atty

To find whether a state has violated PDP: protected interest affected and if so what process is due

Question 5

PDP: Employment (read)

Answer 5

Guaranteed job = actionable property interest

Not guaranteed = no actionable property interest that required procedural due process beyond receiving written notice as called by the k

When employment can be terminated for any reason, court has held not to be claim of entitlement

Question 6

PDP: Speech (read)

Answer 6

Liberty interest in exercising free speech at community meetings and school board meetings

Argue FOS as a constitutionally protected right and fundamental freedom

Question 7

Speech and Gov Actors

Answer 7

Gov actors are permitted to limit employee speech in certain limited contexts such as political speech inside office buildings but they may not retaliate against employees

Question 8

Content Neutral Speech - TPM

1A Free Speech

Answer 8

Time, place, and manner restrictions may be upheld if they are content neutral, the administrator does not have free reign to decide, and alternative revenues are kept open

The test the court will apply depends on the forum

Question 9

Standing

Answer 9

To have standing, a plaintiff must have suffered harm caused by a government actor and can be redressed by a court.

It cannot be moot nor premature

Question 10

Standing as taxpayers

Answer 10

No standing against state (or atty gen)because their tax contributions are too far removed from state officers to have any actionable interest in state statutory and regulatory actions

Question 11

11th Amendment

Answer 11

Under the 11A, states have a sovereign immunity and may not be sued in federal court unless the state consents or the federal court finds a constitutional violation

Question 12

SDP: Liberty

Answer 12

An impingement on a person’s liberty can occur when state action has retained the person’s physical freedom as well as their freedom to exercise a fundamental right provided by the constitution

SS

Question 13

PDP: Property

Answer 13

A person is deprived of a property interest when the state takes away a legal claim of entitlement provided by a k or law. This can include a gov issued driver’s licenses and public education and state benefits

Question 14

PDP: Notice and Hearing

Answer 14

If a protected right has been deprived, the individual must have had a fair opportunity to be heard and have given notice.

To determine what kind of notice is due court will look at 3 factors:

what protected interest was protected

the danger of the interest to continue to be infringed upon with the current process being provided compared to the changes that may be able to be provided to change that effect

the feasibility of providing more process

Question 15

Establishment Clause

Answer 15

Under the US Constitution, citizens have a 1A right to the freedom of speech, which is also incorp to the states through the 14A. When there is a law in place that seems to promote or encourage religion, the court applies the Lemon test.

Lemon (factors= weigh): action has secular purpose, the action does not encourage or inhibit religion, the action does not constitute excessive entanglement with religion

If does not pass Lemon, SS

Question 16

Free Exercise Clause

Answer 16

Under the US Constitution, citizens have a 1A right to freedom of religion. This is applicable to the states through the 14th amendment.

When a law seems to restrict religion unfairly, the government must look at whether 1) there is a sincere belief in the religion, 2) whether the law intentionally targets religious activity, and 3) whether or not the law is neutral of general applicability

If the law intentionally targets religious activity, apply SS

If the law is neutral and of general applicability, apply rational basis review

Address both

Question 17

FEC: sincere belief or religion

Answer 17

Customs like an established religion and a sincere belief (low threshold)

Question 18

FEC: neutral law of general applicability

Answer 18

Law is neutral with general applicability when it applies equally to everyone

Question 19

Strict Scrutiny

Answer 19

Challenger must show that the law is not narrowly tailored to serve a compelling government interest, not over/under inclusive, and no reasonable alternatives

Question 20

DPC - First Amendment

Answer 20

The USC via the DPC affords its citizens with the freedom of speech. If states violate an individuals freedom of speech, it will be held invalid. First Amendment rights are categorized under SS

Question 21

First Amendment Rights to Religion

Answer 21

1A rights are determined by SS. For the state to pass SS, the law must be narrowly drawn to serve a compelling government interest with no reasonable alternatives. Burden on state

Question 22

1A - Attack Plan

Answer 22

1A Rule 
1A Right to \_\_\_\_\_? 
Narrowly Drawn 
Serve a Compelling Gov Interest
No Reasonable Alternatives
Conclusion

Question 23

Ripeness

Answer 23

Actual case and controversy

Question 24

Moot

Answer 24

Exists at all stages of review

Question 25

Organizational Standing

Answer 25

Standing (ICR)
Germane to org’s purpose
Individual member participation not required

Question 26

3P Standing

Answer 26

Needs own standing

3P cannot or difficult to assert on their own rights or special relationship

Question 27

13th Amendment

Answer 27

The 13A is one of the broadest amendments in the constitution, applying to both the government and private actors.

A regulation is unconstitutional under the 13A if it compels one person to work for another, even if compensation is paid

Question 28

14A DPC

Answer 28

There are 2 prongs of the DPC of the 14A

The PDP clause strikes down any law that deprives a citizen of a fundamental right without proper procedure

The SDP clause strikes down any law that deprives a citizen a fundamental right in

Question 29

SDP: Privacy

Answer 29

USSC has held that there is a fundamental right to privacy

SS

Question 30

14A EPC

Answer 30

EPC provides that no state shall enact a law favoring one citizen over another

NS: RB (PWDA)
QS: IS (GI)
SUS: SS (ANR)

Question 31

1A Prior Restraint

Answer 31

PRs are subject to SS because they put a barrier on speech before speech can occur

Valid:

• further important gov interest
• involve little to no discretion by issuer
• clear criteria to obtain
• procedure for timely resolution or immediate appeal

Question 32

1A Overbroad

1A Free Speech

Answer 32

A gov regulation is overbroad and invalid where it regulates more speech than intended

Question 33

1A Vagueness

1A Free Speech

Answer 33

A reg is vague and invalid where it is unclear what speech is allowed and what is not allowed

Question 34

T/P/M Restrictions

Answer 34

One way government may validly regulate speech is by controlling TPM of speech

These regulations are put under SS because they are not limiting what they say but how they say it

Go into P/NP/SP

Question 35

TPM Limited Public Forum

Answer 35

LPFs are not traditionally open to public speech but the government opens them up to the public

While open to speech, a LPF may only regulate the TPM if

content neutral

alternative channels of com available

regulations are narrowly tailored to achieve sig gov interest

Question 36

TPM Non Public

Answer 36

A NPF is where speech has traditionally been able to be severely limited

(mil bases, airports, gov buildings)

Gov can regulate in non public as long as it is reasonable and view point neutral

Question 37

Commercial Speech

Answer 37

Commercial speech can be regulated if not false, misleading, directly advances substantial gov interest and narrowly tailored to do it

Question 38

Fundamental Rights (SS)

Answer 38

T
V
P
F
F

Question 39

EPC Non-Sus

Answer 39

P
W
D
A

Question 40

EPC Q Sus

Answer 40

G

I

Question 41

EPC Sus

Answer 41

A
N
R

Question 42

Unprotected Speech (IS)

Answer 42

Fighting words (directed at another, likely to provoke violent offense)

Obscene (prurient interest of sex, patently offensive, no redeeming value LAPS)

Illegal activity (imminent)

Defamation

Commercial (no protection for false or deceptive ads)

Symbolic (specific msg, see msg/know msg, important interest of gov no greater than necessary)

Question 43

1A General Rule

Answer 43

Congress shall make no law abridging the FOS. This is incorporated to the states via the 14th amendment

Question 44

1A Attack Plan

Answer 44

1A General Rule
Content based v content neutral (address both)
Prior restraint 
Overbroad
Vagueness

Question 45

State/Government Action (address first)

Answer 45

Before X can raise his constitutional defenses, he must first prove there is state action. State action exists whenever the government or a government official is acting, or when a private party with sufficient government entanglement with the state is acting.

Question 46

Content-based Regulation

1A Freedom of Speech

Answer 46

It is presumptively unconsitutional to place burdens on speech because of its content with few exceptions. If the regulation restricts the content of the speech, then the restrictions have to be narrowly tailored and necessary to promote a compelling government interest (SS).

Necessary = no less burdensome alternatives

Question 47

Designated Public Forum

Content-neutral - 1A Freedom of Speech

Answer 47

A designated public forum is public property not traditionally open to speech related activities, but which the government has made available for such activities on a permanent or limited basis.

The test for designated public forums requires a showing that the regulation is (i) content neutral, (ii) narrowly tailored, (iii) serves important government interest, and (iv) leaves open alternate means.