Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar prep vs2 > Con Law > Flashcards

Con Law Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Standing

A

A person has standing only if they can show a concrete stake in the outcome of the controversy.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

A plaintiff will be able to show a sufficent stake in the controversy only if they can show

A

injury in fact, caused by the D, that can be remedied by a decision in their favor

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Org standing - An org can show standing to assert a claim on behalf of its members if

A

org exists to advance the interest of its members

members have standing

claim does not require the presence of all members

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

State action

A

US constitution generally prohibits government infringement of constitutional rights. Litigants must show the action is attributed to the state, including private individuals who 1) are preforming exclusive public functions and 2) have significant state involvement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Ripeness

A

A federal court will not hear a case before it has fully developed, to do so would be premature and any potential injury speculative.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Mootness

A

A case where the dispute has ended or was resolved before review is considered moot. However, such a case can be heard when the wrong can be repeated, the defendant voluntarily ceased but can restart the offending practice, or in class action suits.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Establishment clause

A

– The government is prohibited from establishing or endorsing/supporting religion. Laws that discriminate against a religion must satisfy strict scrutiny (government must show the law is narrowly tailored to achieve a compelling government interest and the least restrictive means is employed).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Free exercise clause

A

– Congress shall make no law abridging the free exercise of religion. Laws designed to interfere with religion must meet strict scrutiny. Laws of general applicability that cause unintentional burdens on religion are constitutional.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

1st Amendement

A

Congress shall make no law abridging the freedoms of speech, press, association, and religion.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

10A

A

all powers not granted to the federal government, nor prohibited by it to the states, are reserved to the states

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

11A

A

A state is not subject to a suit in federal court by a private party without the consent of the state.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

The 5A guarantees that

A

no persons shall be deprived of life, liberty or property without the due process of law by the federal government

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What is allowed under the 11A

A

If you are suing the state or state agency itself
-Consent. A state may consent to a suit by waiving its 11th Amendment protection.
- Congressional Authorization. Congress may abrogate state immunity from liability if it is clearly and expressly acting to enforce rights created by the 14th Amendment.

If you are suing the state official itself
- Injunctive Relief. When a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law or may be compelled to act in accord with federal law despite state law to the contrary.
- Individual Damages. An action for damages against a state official is not prohibited so long as the official himself (not the state) will have to pay.
- Consent. A state may consent to a suit by waiving its 11th Amendment protection.
- Congressional Authorization. Congress may abrogate state immunity from liability if it is clearly and expressly acting to enforce rights created by the 14th Amendment.
- Representative capacity – must be done in their government official

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Due process applies to the states via the

A

14th amendment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

14A guarantees that no state shall

A

deprive any persons of any life, liberty, or property without due process of law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Substantive due process involves

A

government interfering with fundamental rights

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Procedural due process involves

A

notice and hearing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Substantive due process

A

where a law limits the liberty of all persons to engage in some activity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

For substantive due process, if there is a fundamental right is involvded what test applies

A

SS

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

If no fundamental right is infringed during substantive due process what test applies

A

rational basis

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Fundamental rights - SS test

A

goverment must show the law is necessary to serve a compelling interests

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What are the Fundamental rights included in substantive due process

A

voting, interestate travel, right to privacy (marry, procreate, use contraceptives, raise one’s childern, keep family together, custody, and the right to refuse medical treatment)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Non-fundamental right test - substantive due process

A

rational basis - P must show the law is not rationally related to a legitimate goverment interest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Strict Scrunity applies when

A

classification is based on a suspect class - race, national origin, or aliengage in some instances

law infringes on a fundamental right for a class of people (vote, exercise of religion, have access to the courts, interstate travel)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Under SS who has the burden of the proof

A

goverment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

SS rule

A

the government must show the classification is the least restrictive means necessary to serve a compelling government interest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Intermediate scrunity applies to what type of class

A

quasi-suspect class (gender, non-martial childern)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Intermediate Scrutiny test

A

Government must show that the classification is substantially related to an important government interest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Intermediate Scrutiny test who has the burden

A

goverment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Rational basis who has the burden

A

Plaintiff

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Rational basis test

A

P must show classification is not rationally related to any legitimate government interest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Procedural due process applies through which amendement for the federal or state goverment

A

14A for the states, 5A for federal government

33
Q

Procedural due process

A

Guarntees that no person shall be denied life, liberty, or property without due process of the law. Normally process requires notice and hearing

34
Q

Matthews factors are used to determine

A

the amount of process for procedural due process was sufficient

35
Q

Matthews factors for procedural due process

A

what is the importance of interest to the individual

value of safeguards to that interest

what are the government interest

36
Q

Equal protection

A

applies to the states via the 14A and the federal government via the 5A prohibits the government from denying citizens equal protection under the law. Equal protection issues arise when the government treats similarly situated individuals differently based on classifications among individuals

37
Q

Equal protection category (examples of suspect class)

A

race, alienage, or national orgin

38
Q

Equal protection category - Quasi - suspect

A

gender and illegitmacy; apply IS

39
Q

Other cateorgies for = protection

A

age, wealth, disability, education; apply rational basis

40
Q

Discriminatory class - to determine if a discriminatory class exists, it must be show that

A

1) law was discriminatory on its face
2) it is facially neutral but applies in a discriminatory manner
3) there was discriminatory motive

41
Q

How do you analyze a = protection question

A

1- state rule
2- evaluate if it is a discriminatory class
3- apply the level of review

42
Q

Privilege and Immunity clause

A

The Privileges and Immunities Clause prevents a state from treating citizens of other states in a discriminatory manner. It only protects non-residents of the state when the discrimination concerns fundamental rights, i.e. rights relating to important commercial activities or civil liberties. The clause only applies if the discrimination is intentionally protectionist in nature and is not applicable to aliens or corporations.

43
Q

Takings

A

The 5th Amendment as applied to the states via the 14th Amendment, prohibits the government from 1) taking; 2) private property; 3) for public use; 4) without just compensation.

44
Q

A taking is deemed for public use as long as

A

there is a reasonable belief that it will benefit the public.

45
Q

Just compensation for a taking

A

just compensation is measured by the fair market value of the property at the time of the taking (relocation/moving costs are not included).

46
Q

Possessory taking

A

Occurs when the government 1) actually appropriates; 2) destroys or permanently physically occupies the property; or 3) government permanently deprives the owner of all economic value, requiring land be left substantially in its natural state.

47
Q

When do zoning restrictions constitute a total taking

A

Mere zoning restrictions do not constitute total takings unless they deny the owner all economic benefit of the property.

48
Q

Regulatory taking

A

Occurs when the government renders property economically unviable due to a regulation (i.e. zoning ordinance). Courts will determine whether a regulatory taking occurred by balancing private and community interests. Here, courts will determine if the taking is unviable by utilizing the Penn Central Factors.

49
Q

Penn central factors

A

Unviability is determined by evaluating 1) the character of the regulation (degree of benefit to society and burden to the owner); 2) the economic impact on the landowner; and 3) the extent of interference with investment-backed expectations.

50
Q

taking’s clause analysis

A

standing
state action
takings rule
due process
standard of review
then if zoning –> rational basis review

51
Q

Zoning

A

States may enact statutes to control land use under the Tenth Amendment.

52
Q

Delegation of legislative power

A

Congress may delegate some legislative authority to the executive branch as long as Congress specifies an intelligible principle to guide the delegate.

53
Q

Commerce Clause

A

Congress has the power to regulate commerce with foreign nations, among the several states, and with the Indian Nations. This includes the power to regulate channels and instrumentalities of interstate commerce, persons or things in interstate commerce, and economic activities that have a substantial effect on interstate commerce.

54
Q

Dormant commerce clause

A

The state cannot regulate interstate commerce if it is discriminatory or unduly burdensome.

55
Q

If a state law discriminates against out-of-state competition, it is invalid unless

A

1) the law furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives; 2) the state is a market participant; or 3) the government action involved is typically performance of a traditional government function.

56
Q

Free Speech

A

The government is limited in how it may regulate speech. Regulation of speech must not be 1) a prior restraint; 2) overbroad; 3) vague; and 4) unfettered discretion.

57
Q

Prior restraint

A

A prior restraint on free speech restricts speech before it occurs. Prior restraints are presumed unconstitutional except when: 1) a particular harm can be avoided; and 2) there are narrowly drawn, reasonable standards.

58
Q

Content Based regulation

A

Government regulations regarding the content of protected speech (subject matter or viewpoint) must satisfy strict scrutiny - narrowly tailored to achieve a compelling government interest and by the least restrictive means.

59
Q

Content neutral regulation

A

The government may regulate the time, place and manner of content neutral speech if the regulation satisfies intermediate scrutiny. Under intermediate scrutiny, the government must show that the regulation is narrowly tailored to achieve a significant government interest and leaves open alternative channels of communication. This regulation is not required to be the least restrictive means of achieving this government objective.

60
Q

Time place manner

A

The government’s ability to regulate time, place and manner of speech varies with the forum in which the speech takes place.

61
Q

Public forum

A

An area that has traditionally open to the public where free speech is permitted (public parks, sidewalks). Government regulation of speech that is content-based must meet strict scrutiny, or if content-neutral, intermediate scrutiny.

62
Q

Designated public forum

A

A designated public forum is one which is not historically open for public speech but can be opened at the government’s discretion. Same scrutiny requirements for a Public Forum apply.

63
Q

Non-public forum

A

The government can limit free speech in non-public forums (jails, schools, courthouses) as long as the regulation is viewpoint neutral and reasonable.

64
Q

Public employees

A

Employees of public companies have the right to express their views on public concerns. The court must weigh the interest of the employer in fulfilling duties against the interests of the employee’s rights. If the speech does not affect the person’s job performance, their firing for comments would be prohibited.

65
Q

Taxing and spending clause

A

Congress has the power to tax and spend for the general welfare, and to condition states’ receipt of federal funds so long as the condition is related to the purpose which the funds are granted, and not unduly coercive. Congress’ spending power is plenary so long as the spending serves the general welfare and is not prohibited by the Constitution.

66
Q

Freedom of association

A

The government may not prohibit or punish group membership unless the law meets strict scrutiny.

67
Q

Overbroad

A

A law is overbroad when it prohibits more speech than necessary.

68
Q

Vague

A

A law will be held vague if it gives no reasonable notice as to what speech is prohibited.

69
Q

Unfettered discretion

A

A regulation must provide defined standards as to how to apply the law to prevent regulating officials from having unfettered discretion in their application of the law.

70
Q

Incitement of illegal activity exception

A

A state cannot forbid advocating the use of force or of law violation unless it is directed at producing or inciting imminent lawless action, and is likely to incite such action. Further, “fighting words” that are “true threats” are not protected when they are statements communicating intent to place an individual in fear of bodily harm.

71
Q

content regulation of speech exceptions

A

The government may limit language that incites illegal activity, obscenity, commercial speech, and defamation.

72
Q

Contract clause

A

The Contracts Clause limits states from enacting or repealing legislation that eliminates the state’s pre-existing contractual burden. Any retroactive impairment of contract rights is thereby prohibited.

73
Q

Congress appointments

A

Congress shall not form executive agencies and appoint Congressmen or their staff to serve in those agencies. If appointments have administrative/enforcement powers, the President appoints the selectees who may require advice and consent of the Senate.

74
Q

SC JDX

A

Federal courts have jurisdiction over all cases and controversies arising under the Constitution, laws, or treaties of the U.S. The Supreme Court has complete discretion to hear cases that come to it by writ of certiorari, to include 1) Constitutionality of a federal statute, federal treaty, or state statute is called into question, or 2) all cases from federal courts of appeals.

75
Q

Congress’ authority

A

– Congress can restrict SCOTUS appellate jurisdiction, but not original jurisdiction, which is established in the U.S. Constitution.

76
Q

Obscenity

A

Obscenity is not protected speech, but a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards 1) appeals to the prurient interest of sex; 2) portrays sex in a patently offensive way; and 3) does not have serious literary, artistic, political, or scientific value using a national, reasonable person standard.

77
Q

Commerical speech exception

A

False advertising is not protected speech. Commercial speech in general is protected speech, however, may be restricted if the government passes legislation that 1) concerns a lawful activity and is not misleading or fraudulent, 2) serves a substantial governmental interest, 3) directly advances the asserted interest, and 4) is narrowly tailored to serve the substantial interest which is looked at by determining if there’s a reasonable fit between the legislation’s end and the means chosen.

78
Q

When can a state sue the federal government

A

A state may not sue the fed government without consent, absent some other exception, such as a federal officer acting outside of scope.

Bar prep vs2 (16 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions