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rule statements mbe and mee > Con Law > Flashcards

Con Law Flashcards

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1
Q

Individual standing

A
  1. Injury in fact
  2. Causation
  3. Redressability
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2
Q

Organizational standing

A
  1. Individual members have standing
  2. Claim is related to the purpose of the organization; AND
  3. The individual members are not necessary to adjudicate the claim
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3
Q

Mootness

A

No live controversy because already adjudicated or the harm no longer exists

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4
Q

Commerce clause

A

Congress has power to regulate interstate commerce
1) channels of interstate commerce (highways, waterways)
2) instrumentalities of interstate commerce (planes, trains, automobiles)
3) activities that have substantial effect on interstate commerce

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5
Q

Substantial effect on interstate commerce

A

Economic activity may be considered in the aggregate
- even if something is only intrastate. If it is an economic activity, in the aggregate it can have an impact on interstate commerce

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6
Q

Spending power

A

Congress can condition funds and require states to implement certain regulations
- BUT the condition must be related to purpose of the funds

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7
Q

Delegations of legislative power

A

Congress may delegate its power to an agency if provided with an intelligible principle for the agency to follow

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8
Q

Domestic affairs powers

A

President has appointment and removal powers, the pardon power, the commender in chief power, and duty to execute law

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9
Q

Foreign affairs

A

President has power to conduct foreign negotiations, to deploy troops overseas, and to make executive agreements

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10
Q

State supremacy clause

A

If state law conflicts with federal law, federal law governs

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11
Q

Express preemption

A

If federal law explicitly states that it is the only law allowed in that area

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12
Q

Implied preemption

A

Congress passes law intending to occupy the field
- state law either directly or indirectly conflicts with federal law

Note: state law can pass more stringent laws as long as it doesn’t conflict w federal law

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13
Q

Privileges and immunities clause

A

States cannot discriminate against out of state citizens unless there is a SUBSTANTIAL justification for the discrimination
Note: applies only to individuals not corporations and noncitizens

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14
Q

10th amendment commandeering

A

All powers not expressly given to Fed govt are reserved to states

Federal govt cannot force state legislature to pass laws (look for this with the spending power, which they can do bc it’s not forcing)

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15
Q

Dormant Commerce Clause

A

Enables congress to regulate interstate commerce, and limits states ability to regulate interstate commerce since congress already regulates it

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16
Q

State law discriminatory against out of state commerce

A

State must show:
1) it has important state interest
AND
2) there is no other non-discriminatory means available to advance that interest

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17
Q

Market participant exception to discriminating against out of state commerce

A

1) traditional govt function exception
2) the subsidy exception
3) the congressionally permitted discrimination exception

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18
Q

Undue burden on interstate commerce

A

If statute is non-discriminatory, law may still be invalid if it causes undue burden on interstate commerce

Court will balance purpose of statute against burden on interstate commerce and whether there are less restrictive alternatives

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19
Q

5th amendment Takings Clause

A

Government may not take private property for public use without just compensation

Govt: federal, state, or local government physically taking or rezoning or prohibiting development

Private property: usually land, but could be other property (copyright)

Public use: includes public use, health, safety, economic development

Type of Taking:
Physical taking: govt physically occupied the land
Regulatory taking: law has effect of decreasing the value of the P’s property

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20
Q

Regulatory taking

A

Law that has effect of decreasing value of P’s property
1) total taking - leaves no economically viable use of property
2) partial taking - affects some economic use of land, but there is still some economic use available

21
Q

Partial taking (regulatory)

A

1) economic impact - how much value is lost due to regulation
2) reasonable expectations of profit or return on investment (if no effort then who cares right?)
3) Character of the regulation- does the regulation impact a few owners or the entire community?

22
Q

Just compensation for a taking

A

If taking has occurred, landowner entitled to “just compensation” which is fair market value of land AT THE TIME OF TAKING. Not what it would’ve been had you done future stuff w it (development/building)

You also only get paid for the part of land that’s taken (if only partial taking)

23
Q

Procedural Due Process

A

Protections before govt can take life, liberty, or property

24
Q

How much procedural due process

A

1) interest affected (life, liberty, or property
- also includes fundamental rights
2) value of additional safeguards
3) burden/cost of additional process

25
Q

Substantive due process

A

Whether govt action (law or regulation) impermissibly infringes on an individual’s rights

Standard of review:
1) fundamental rights (life liberty property)
- strict scrutiny necessary to achieve compelling interest

2) non-fundamental rights
- rational basis - rat related to leg govt interest

26
Q

Equal Protection Clause
Discrimination requirement

A

Discrimination requirement
- p must show discrimination, for a stricter standard needs to show discriminatory intent

27
Q

EP standards of review

A

Strict: fundamental right or suspect classification (race, ethnicity, national origin, religion)
Intermediate: gender or non marital children
Rational basis: other rights and classifications

NOTE: If different categories involves, different provisions of the statute may be evaluated under different levels of scrutiny

28
Q

Strict Scrutiny

A

Govt must show
- least restrictive means necessary
- to achieve a compelling government interest

29
Q

Intermediate Scrutiny

A

(Gender and children born outside marriage)

Govt must show law is:
- substantially related
- To important government interest

For gender needs intermediate Scrutiny w bite (bc biting is hot)
- must also demonstrate an exceedingly persuasive justification for the law

30
Q

Rational Basis

A

Rationally related
To a legitimate government interest

BURDEN IS ON PLAINTIFF

31
Q

Government regulation of expressive speech is upheld if

A
  1. Regulation furthers an important government interest
  2. The interest is unrelated to the suppression of speech
  3. The burden on speech is not greater than necessary; AND
  4. Regulation is within government’s authority to enact
32
Q

Overbreadth

A

Statute is overbroad if it regulates more speech than necessary to protect a compelling government interest

33
Q

Vagueness

A

Statute is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited

34
Q

Prior Restraint

A

Prohibits speech before it occurs (need a license or permit before speech or expressive conduct)

  1. Is there particular harm govt is seeking to avoid
  2. Prior restraints are narrowly drawn, reasonable, and definite
  3. There must be prompt review of the validity of the restraint
35
Q

Unfettered discretion

A

For permitting or licensing process allowing government official to regulate or restrict speech
- Cannot have unfettered discretion
- Must have definite standards in place as to how to apply the law

36
Q

Content-based regulation

A

Strict scrutiny
- necessary to achieve
- compelling government interest
AND narrowly tailored to meet that interest

37
Q

Content-neutral time, place, and manner regulation

A
  1. Narrowly tailored
  2. To serve significant government interest
  3. Leave open ample alternative channels for communication
38
Q

Commercial Speech that isn’t protected

A

Commercial speech that is false, misleading, or unlawful

39
Q

Protected commercial speech regulation

A

1) government interest is substantial
2) regulation directly advanced interest AND
3) regulation is narrowly tailored

40
Q

Obscenity speech

A

Not protected under 1st amendment
To be obscene:
1) appeals to prurient interest (shameful or morbid)
2) depict sexual conduct in a patently offensive way
3) lacks serious literary, artistic, political, or scientific value

41
Q

Traditional public forum

A
  • sidewalks, street, park
    Place where free speech has been historically engaged in
    Content based: strict scrutiny
    Content-neutral: time place manner test
42
Q

Designated Public Forum

A

Ex. City allows bulletin boards within subway stations (not traditional but if govt is opening it up we consider it designated)

Content based: strict scrutiny
Content neutral: time place manner test

43
Q

Non-public forum

A

Govt office, schools, jails, military bases, airport terminals, private building held open to public, malls

Government can regulate speech in these forums if:
1) regulation is viewpoint-neutral and
2) reasonably related to
3) a legitimate govt interest

Ex. Military base can ban all speech about war (content), but it cannot ban just pro-war speech or anti-war speech (viewpoint)

44
Q

Establishment Clause

A

Prohibits govt from establishing a religion, preferring a particular religion over another, or preferring religion over non-religion

45
Q

Facially religion preference

A

When a law facially shows preference to one religion over another (or pref to religion over non-religion)

Strict scrutiny applies

46
Q

No facially religious preference

A

When a statute has an impact on favoring religion

Look at “historical practices and understanding” test. Look at the facts for this

Ex. Public school allowing a Christian organization to use its cafeteria for after-school meetings did not violate establishment clause

47
Q

Free-Exercise clause

A

Prohibits govt from interfering with person’s religious belief or conduct

Religion: must be genuine (not philosophy)
Belief: religious beliefs are absolutely protected
Conduct: law that intentionally targets religious conduct is subject to strict scrutiny
Neutral laws: laws that do not target religion and are generally applicable are subject to the rational basis test

48
Q

8th amendment

A

Protects against cruel and unusual punishment
Disproportionate to crime:
1. Sentence imposed grossly exceeds the nature of the crime (D given life in prison for shoplifting)
2. Punishment violates a categorical rule based on D’s characteristic (e.g. juvenile) or nature of offense (non homicide)

49
Q

No death penalty for

A

Juveniles
Intellectually deficient persons
Adults convicted of non homicide offenses

rule statements mbe and mee (15 decks)

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