Con Law Flashcards
The Takings Clause of the Fifth Amendment, applicable to the States via the Fourteenth Amendment, requires that
private property may not be taken for public use without just compensation
State and local governments may regulate the use of land through zoning laws. Generally, a governmental regulation that adversely affects a person’s property interest is not a taking, but under certain circumstances it may rise to the level of one. A per se taking occurs when
there is physical occupation of the land for public use or when a regulation results in a permanent total loss of the property’s economic value.
In determining whether a regulation that is not a per se taking but denies an owner of nearly all economic value amounts to a taking, the following factors are considered:
i) character of the governmental action, (ii) economic impact on the property owner, (iii) the extent to which the regulation has interfered with the owner’s reasonable, investment-backed expectations. (Penn Central Transportation Co.).
For a person to challenge a governmental action as an unconstitutional taking, the person must have a
a property interest
Property interest is liberally defined and may involve a
a fee simple absolute, easement, leasehold interest, or a lien.
Moreover, a property owner who applies for a building permit under the existing regulations is entitled to consideration under that ordinance according to
the vested rights doctrine. It allows projects to be completed in accordance with land use plans and regulations in effect when the projects were approved.
A federal court cannot decide a case unless the P has
standing - a concerte interest in the outcome - to bring it
Standing is when the individual who’s bringing the case has to have some personal injury at stake. Elements are
injury in fact, causation, and redressability.
Injury in Fact
The injury must be concrete and particularized. While the threat of future injury can suffice, it cannot be merely hypothetical or conjectural, but must be actual and imminent.
Casuation
The plaintiff must show that the defendant’s conduct caused the injury.
An organization may bring an action when it has suffered an injury. In addition, an organization may bring an action on behalf of its members (even if the organization has not suffered an injury itself) if its
members would have standing to sue in their own right and the interests at stake are germane to the organization’s purpose.
Ripness
refers to the readiness of a case for litigation. Plaintiff must have experienced a real injury or imminent threat thereof
Why wont a federal court will not consider a claim before it has fully developed?
premature, and any potential injury would be speculative
Mootness
A live controversy must exist at each stage of review, not merely when the complaint is filed. A case has become moot if there is no longer a controversy.
Declaratory relief
When is it appropriate
relief provided by a court that does not change the rights of a party but merely delineates those rights.
to handle questions of whether or not an ordinance is constitutional and appropriate in the context of a municipality
You must do an analysis on whether the ordinance is constitutional
State action is a necessary prerequisite to triggering constitutional protections because
the Constitution generally protects against wrongful conduct by the government, not private parties.
The Free Exercise Clause (“FEC”) of the First Amendment has been construed to include two freedoms:
act and believe
The freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law. Religious conduct, on the other hand,
is not absoultely protected
Law of general applicability is where states prohibit or regulate conduct in general, even if the law incidentally interferes with a person’s ability to engage in religious practices. Such a neutral law of general applicability is subject only to
rational basis review
State laws that ientntionally target religious conduct r subject to
SS
Strict Scrunity applies when the government purposely targets conduct because it is religious or displays religious beliefs To pass muster under the strict scrutiny test, CC must show that the ordinance is
necessary to achieve a compelling interest and that it is the least restrictive means of doing so.
Establishment clause
prohibits the establishment of religion.
If a law includes a preference for one religion over another, or religion over nonreligion, then the court will apply what in an establishment clause question. However, if the law does not have a sect preference, then the court will apply
SS; lemon test
In order to determine whether government action violates the Establishment clause, the court will apply the Lemon test. The Lemon test has three factors.
to be valid the law must have a secular purpose, a primary effect that neither advances nor inhibits religion, and not result in excessive government entanglement with religion.
Lemon test is applied when there is no sectural preference. The action must:
have a secular purpose
a primary effect that neither advances nor inhibits religion, and
not result in excessive government entanglement with religion.
Secular purpose
The regulation must have a secular, nonreligious, purpose.
Primary effect
regulation must neither advance nor inhibit religion.
Even if the county is successful on the first two factors of the Lemon test, it will likely fail on this factor. Under this prong, the government action cannot
The regulation must not result in excessive government entanglement with religion.
The Due Process Clause of the Fourteenth Amendment provides that “no state shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law.” In assessing if there has been violation of the PDP clause, the court will first determine if there has
been a deprivation of a life, liberty, or property (LLP) right. If there has been a taking of an LLP right, then second, the court will determine whether sufficient due process was afforded or what amount of due process is due.
Life Liberty or property
Liberty interests may include fundamental rights, such as those guaranteed by the U.S. Constitution. Moreover “property” rights are loosely defined and include almost any legitimate claim of entitlement, such as rights provided within an employment contract.
When congress is sending cases directly to the SC they are
enlarging/restricting the orginal jursidiction of the court and that is illegal because it violates the separation of powers
If the case is being appealed to the SC can congress have a say in it
Yes
does congress have jursidiction over the lower federal courts and how
yes because they have the power to establish more additional lower federal courts and can even determine the kinds of cases they hear
what can prevent a case going to federal courts
mootness
ripness
Actual dispute
Independent and adequate state ground
Political question
Standing
Political question
federal courts will not hear cases regarding a subject of another branch of government, presidential or Congress
11A
the citizens of one state cannot sue its own state or another state.
exceptions to 11A
state consents
goverment offical may be sued
Substantive due process is whether
govemernt action such as a law or regulation impermissibly infringes on the indiviuals rights
What r the fundamental rights associated with substantive due process
life, liberty, and property
When, in substantive due process, life, liberty and property rights are affected, what standard do you apply
SS
SS means that
only valid if necessary to achieve a compelling governmental
interest
Non fundamental rights in substantive due process get tested under
rational basis
Rational basis test as it relates to a Non Fundamental rights
rationally related to a legitimate government interest
Procedural due process is when
Under the 14th Amendment procedural Due Process Clause, no person shall be
deprived of life, liberty, or property without due process of the law. This requires a
showing that
1) there was a deprivation of a protected interest,
2) without due process
protections (namely, notice and a hearing).
Outline for answering a PDP
Interested affect- life, liberty (fundamental rights), or property
value of additional safegaurds
Burden / Cost of Additional process
Free speech questions you should discuss
symobolic speech
vagueness & overbreath
prior restraint
forum
content based v. content netural
When the symbolic speech is expressive conduct you should discuss
(1) The regulation furthers an important governmental interest;
(2) The interest is unrelated to the suppression of speech;
(3) The burden on speech is not greater than necessary; and
(4) The regulation is within the government’s authority to enact.
Overbreath
overbroad if it regulates more speech than necessary to protect a compelling
government interest
Vagueness
if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited
Prior restraint
generally not allowed unless speific procedural safegaurds are in place
What are the safeguards in place needed for prior restrint
standards are narrowly drawn, reasonable and definte
prompt review of the valdity of the restraint
Unfettered discretion
lacks definite standards in place on how to apply the law and allows a goverement offical to regulate or restrict speech
Content based regulation must show (SS)
1)Necessary to achieve;
2) A compelling governmental interest; and
3) Narrowly tailored to meet that interest
Content netural: time place and manner speech for public fourms gets IS which is
narrowly tailored
to serve an significant goverment interest and
leaves open ample alternative channels for comms
what are the 2 lesser protected speeches
commerical and obscenity
When is commerical spech considered less protected
false, misleading or unlawful
Protected commercial speech can only be regulated if
a) The government interest is substantial,
b) The regulation directly advances the interest, and
c) The regulation is narrowly tailored
How is material considered obscene
- Appeal to the “prurient interest”;
- Depict sexual conduct in a patently offensive way; and
- Lack serious literary, artistic, political, or scientific value
In order to argue a EPC issue, P must show
there is discrimination
In order to under EPC apply a stricter standard of review P must show
discriminatory intent
Fundamental right or suspect class examples
Race, ethinicty or national orgin
Fundamental right or suspect class applies
SS
General or nonmartital childern will get
IS
Other rights and classification
Rational basis
SS test for EPC, goverment must shoq
least restrict means to achieve a compelling goveremnt interest
IS
Substantially realted to an important government interest
Speifically for gender P must demonstrate an
exceedingly persuaive justification for the law ie IS with bite
You apply Dormant Commerce Clause when
States are discriminating against interstate commerce or unreasonably burdening it
Discrimination against interstate commerce under DCC can appear
on the face of the regulation or on the impact
Discrimatory effect for DCC, State must show
an important State interest
and
there is no other means available to acheive that interest
Exceptions to raise under DCC
Market Participation
traditional goverment function
Subsidy
Congressional permitted discrimination exception
Undue burdent on Interestate Commerce - DCC Courts will
balance the purpose of the statute against the burden on interstate commerce and whether there are less restrictive alternatives.
When there is a religion question, you must discuss
free exercise clause
establishment clause
Establishment clause
Prohibits the government from establishing a religion, preferring a particular religion over another, or preferring religion over non-religion
When the law facillaly shows a preference to one religion over the other you apply
SS
When the statute has an impact on favoring religion you apply the
historical practice and understanding test
Historical practice and understanding test
If the display also communicates a secular moral message, or its context conveys ahistorical and social meaning, it may be upheld
Free exercise clause
prohibits goverement from interferring with person’s religious beliefs
For free exercise clause you must prove
it is a sincerely held religious belief
it is speifially targeting a religion or it is not
Under the FEC if you are targeting a speific relgion, ct will apply
SS
Under the FEC if you are not targeting a speific religion, CT will apply
RB
