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Bar Prep Rules > Con Law > Flashcards

Con Law Flashcards

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1
Q

What is required for standing?

A
  1. Injury in fact (particularized)
  2. Causation
  3. Redressability
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2
Q

What is the injury requirement for standing?

A

It must be particularized and concrete.

A future injury must be imminent.

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3
Q

When is there taxpay standing?

A

Only under the establishment clause.

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4
Q

When is there third party standing?

A

!. Harmed party unable to assert their own rights
2. Special relationship
3. Third party adversely affected

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5
Q

When does an organization have standing?

A

When its members have standing and the issues germane to its purpose.

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6
Q

What is the doctrine of Ripeness?

A

Ripeness means the case is ready for trial. Typically denied where there is not a particularized injury yet.

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7
Q

What is the doctrine of mootness?

A

A case must be a live controversy. If it is no longer an issue it is moot.

Exceptions if it will reoccure because of other plaintiffs or the party temporarily stopped.

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8
Q

When can congress use the commerce clause?

A

It can regulate the channels and instrumentalities that substantially affect commerce.

This power is based on aggregate effect

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9
Q

What is Peemption?

A

Congress can Peempt state law expressly, meaning that only congress can regulate can also be implied preemption.

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10
Q

When does implied preemption occurs?

A

Preemption is implied where Congress intends to occupy the field.

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11
Q

Where does procedural due process come from?

A

State 14th Amendment

Fed Fifth Amendment

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12
Q

What is the rule of procedural due process?

A

Before depriving a person of life, liberty, or property, the state must provide due process. Typically (1) notice and (2) an opportunity to be heard (3) before a neutral decision maker.

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13
Q

What is substantive due process?

A

The level or review that is due. If the action infringes on a fundamental right, strict scrutiny. Otherwise rational basis.

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14
Q

What is the test for Strict scrutiny?

A

The law must be the least restrictive means of achieving a compelling governmental interest.

The burden on the state

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15
Q

What is the test for rational basis review?

A

The law must be rationally related to a legitimate government interest.

Burden on person challenging action.

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16
Q

What are the fundamental rights?

A
  1. Interstate travel
  2. Right to vote
  3. Privacy
  4. Second Amendment (sorta)
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17
Q

What is covered under the right to privacy?

A
  1. Marriage
  2. Contraception
  3. Sexual behavior
  4. Abortion????
  5. Parental rights
  6. Family relashions
  7. Obscene material
  8. Refusal of medical treatment
18
Q

What is the source of the equal protection clause?

A

State: 14th Amendment
Fed: 5th Amendment due process cluase

19
Q

What are the three levels of review for equal protection?

A
  1. Strict scrutiny
  2. Intermedeate scrutiny
  3. Rational Basis
20
Q

What is the test for strict scrutiny?

A

The law must be the least restrictive means of achieving a compelling government interest.

Burden on the state

21
Q

What is the test for intermediate scrutiny?

A

The law must be substantally related to an important government interest.

Burden not clear but appears to be on government.

22
Q

What is the test for rational basis review?

A

The law must be rationaly related to a legitimate government interest.

Burden on person challenging.

23
Q

When does strict scrutiny apply under equal protection?

A

When the law uses a suspect class.
They are:

  1. Race
  2. Ethnicity
  3. National Origin
  4. Citizen Status (if used by state).
24
Q

When does intermediate scrutiny apply?

A

Quasi Suspect class
They are:

  1. Gender
  2. Parantage
25
Q

When does a law implicate equal protection?

A
  1. Facially discriminatory
  2. Discriminatory motive
  3. Discriminatory application

Does not include desperate outcome

26
Q

When will a federal law be struck down for discriminating against non citizens?

A

If it is arbitrary and unreasonble.

27
Q

What are some key non suspect classes?

A
  1. Age
  2. Poverty
  3. Sexual Orientation
28
Q

What is the takings cluase?

A

The Fifth Amendment states that property may not “be taken for public use, without just compensation.”

29
Q

What is a regulatory taking?

A

Regulation can be a taking without removing possession, where it removals all economically viable use of the property.

30
Q

When can Congress delegate?

A

Congress is vested with all legislative power and generally cannot delegate. However, courts have held that Congress can delegate some authority where it provides intelligible standards.

31
Q

What is the establishment cluase?

A

The First Amendment provides that Congress shall make no law respecting the establishment of religion.

32
Q

What is the free exercise clause?

A

The First Amendment provides that Congress shall make no law prohibiting the free exercise of religion.

Includes freedom to believe and act.

33
Q

What is the Religious Freedom Restoration Act?

A

Many states and the federal government have established laws that allow people to challenge natural laws that impact religion and subject them to strict scrutiny.

34
Q

What is required to regulate expressive conduct?

A
  1. Regulation is within the government’s power to act
  2. Furthers an important governmental interest
  3. Regulation is not related to the impression of ideas
  4. No greater than necessary
35
Q

When can goverment regulate the time place and manner of speech?

A

Depends on the forum. Public, Non Public, Private Property

36
Q

When can government regulate speech in a public form?

A

Regulation must be:
1. Content netrual
2. narrowly tailored
3. Leave alternative channels of communication avalible

37
Q

When can government regulate speech in non-public forums?

A
  1. Viewpoint natural
  2. Reasonable (rational Basis)
38
Q

When can government regulate speech on private property?

A

Basically, never if it is content based.

39
Q

When is material obscene?

A

When the average person applying contemporary community standards would find:
1. Appeals to pruient interest
2. depectis sexual content in a patently offensive way , and
3. Lacks serious artistic, scientific, literary or political value (national Standard)

40
Q

What is the Comity Clause?

A

Prohibits one state from discriminating against citizen of another state.

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