Con law

Question 1

Constitution protecting against conduct of private parties

Answer 1

The constitution generally protects against wrongful conduct by the government, not private parties. A private person’s conduct must constitute state action in order for these protections to apply.

Question 2

When is a private person a state actor

Answer 2

A private person’s conduct is state action when a private person carries on activities that are traditionally performed exclusively by the state, such as running primary elections or governing a “company town”

Question 3

First amendment applicability to the states

Answer 3

The first amendment is applicable to the states through the fourtheenth amendment and protects the freedom of speech as well as the freedom not to speak

Question 4

Right not to say the pledge of allegiance

Answer 4

The supreme court has held that a child in a public school has the right not to recite the pledge of allegiance

Question 5

Kinds of speech protected by 1A

Answer 5

The first amendment protects freedom of speech. Protected speech can include written, oral, and visual communication, as well as activities such as picketing and leafleting.

Question 6

Ability to regulate speech based on forum

Answer 6

The government’s ability to regulate speech depends on the forum in which the speech takes place

Question 7

Traditional public forum

Answer 7

A traditional public forum is one that is historically associated with expression, such as sidewalks, streets, and parks.

Question 8

Regulating speech in a traditionally public forum

Answer 8

In a traditional public form, the government may only regulate speech if the restrictions are (i) content neutral as to both subject matter and viewpoint, (ii) are narrowly tailored to serve a significant governmental interest and (iii) leave open ample alternative channels for communications

Question 9

Absolute prohibitions on a type of expression

Answer 9

Restrictions, such as an absolute prohibition of a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling government interest

Question 10

Cases and controversies

Answer 10

Art III Sec 2 restricts federal judicial power to cases and controversies

Question 11

P needs standing

Answer 11

A federal court cannot decide a case unless the plaintiff has standing to bring it

Question 12

Requirements for standing

Answer 12

To have standing, the plaintiff bears the burden of establishing three elements: injury in fact, the injury was fairly traceable to the challenged action (causation) and the relief request must revent or redress the injury

Question 13

Injury part of standing

Answer 13

Standing requires a concrete and particularized injury, even in the context of a statutory violation. The injury need not be physical or economic.

Question 14

Violation of privacy as injury

for standing

Answer 14

An injury such as the invasion of privacy may be a sufficiently concrete injury in itself even when extensive damages cannot be provided

Question 15

Dormant commerce clause

Answer 15

The DCC is a doctrine that limits the power of states to legislate in ways that impact interstate commerce. If congrses has not enacted legislation in a particular area of interstate commerce, then states are free to regulate, so long as the action does not (i) discriminate against out of state commerce, (ii) unduly burden interstate commerce; or (iii) purposefully regulate extraterritorial (wholly out of state activity)

Question 16

When does a state/local regulation discriminate against out of state commerce

Answer 16

A state or local regulation discriminates against out of state commerce if it protects local enconomic interests at the expense of out of state competitors. However, the mere fact that the entire burden of a state’s regulation falls on an out of state business is not sufficient to constitute discrimination against interstate commerce

Question 17

What does DCC protect

Answer 17

The DCC protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations

Question 18

When may a nondiscriminatory state regulation be shot down

Answer 18

A state regulation that is not discriminatory may still be struck down as unconstitutional if it imposes an undue burden on interstate commerce. The courts will balance, case by case, the objective and purpose of the state law against the burden on interstate commerce and evaluate whether there are less restrictive alternatives

Question 19

When may a discriminatory regulation be upheld

DCC

Answer 19

If a state or local regulation, on its face or in practice, is discriminatory, then the regulation may be upheld if the state or local ogvernment can establish that (i) an imporant local interest is being served and (ii) no other nondiscriminatory means are available to achieve that purpose

Question 20

Market participant exception

Answer 20

A state may behave in a discriminatory fashion and burden commerce if it is acting as a market participant as opposed to a market regulator. If a state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business.

Question 21

Preventing leafletting and 1A

Answer 21

SCOTUS has held that preventing littering is an insufficient governmental interest to justify banning all leafletting.

Question 22

EPC clause

Answer 22

The equal protection clause of the 14th Amendment provides that “no state shall deny any person within its jurisdiction the equal protection of the laws”

Question 23

Who does EPC apply to

entities, not people

Answer 23

The equal protection clause applies only to states and localities– not the federal government (note that feds are kind of bound to it through reverse incorporation thru the 5A tho)

Question 24

Review standard for laws based on age

Answer 24

Laws that make classifications based on age are reviewed under the rational basis standard, a test of minimal scrutiny.

Question 25

Rational basis review

Answer 25

A law satisfies rational basis review when it is rationally related to a legitimate government interest. The challenger bears the burden of proof for this standard.

Question 26

Link between means selected by state and legislature obejctive (rational review)

Answer 26

• it is not required that there actually be a link between the means selected by the state and a legitimate state objective
• however, the legislature must reasonably believe that there is a link

Question 27

presumption of validity under rational basis review

Answer 27

laws are presumed valid under the rational basis standard, and the burden is on the challenger to show that a law does not satisfy this standard.

Question 28

fed powers being enumerated

Answer 28

The federal government may exercise only those powers specifically enumerated in the constitution

Question 29

Enabling clause

Answer 29

The 14th amendment Enabling Clause permits congress to pass legislation to enforce the equal protection and due process rights guaranteed by that amendment

Question 30

Limits of the enabling clause

Answer 30

However, the enabling clause does not grant congress the authority to expand rights or create new ones.

Question 31

Can congress override a state law that does not vioalte the constitution

Answer 31

Although congress may override state action that infringes upon the 14th Amendment if the congruence and proportionality test is satisfied, its enforcement power would not stretch to prohibit a law that does not violate the constitution.

Question 32

Congruence and proportionality test

Answer 32

In enforcing 14th amendment rights, there must be a congruence and proportionality between the injury to be prevented and the means adopted to achieve that end.

Question 33

11th Amendment

Answer 33

The 11A is a jurisdictional bar that prohibits the citizens of one state from suing another state in federal court.

Question 34

Effect of 11A

Answer 34

The 11th Amendment immunizes a state from suit in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state.

Question 35

Waiving immunity under 11A

Answer 35

One exception to the 11th Amendment is that a state may waive its immunity.

Question 36

Suing a state official and 11A

Answer 36

When a state official, rather than the state itself, is named as a defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law.

Question 37

Standard of review for DCC

Answer 37

A state law that discriminates against out of state commerce is subject to strict review and is virtually per se unconstitutional

Question 38

Nondiscriminatory state laws that impose an incidental burden on interstate commerce

Answer 38

A nondiscriminatory state law that imposes an incidental burden on interstate commerce will nontheless be unconstitutional if the benefits of the state law are grossly outweighed by the burdens on interstate commerce

Question 39

What does the takings clause provide

Answer 39

The 5th Amendment takings clause, as applied to the states and municipalities through the 14th Amendment due process clause, provides that private property may not be taken for public use without just compensation.

Question 40

regulations that don’t affect a property interest

Answer 40

Generally, a governmental regulation that adversely affects a person’s property interest is not a taking

Question 41

When can a regulation rise to the level of being a taking

Answer 41

It is posisble for a regulation to rise to the level of a taking, such as when a regulation results in a permanent physical occupation of the property by the government or a third party, or when a regulation results in a permanent total loss of economic value

Question 42

3 factor test to determine whether an ordinance is a regulatory taking

Answer 42

The following factors are considered in determining whether a regulation is a taking
1. the economic impact of the regulation on the property owner
2. the extent to which the regulation interferes with the owner’s reasonable, investment backed expectations regarding use of the property; and
3. the character of the regulation, including the degree to which it benefits society, how burdens/benefits are distributed, and whether it vioaltes any of the owner’s essential attributes of property ownership

Question 43

Exactions

Answer 43

A local government may exact promises from a developer in exchange for necessary construction permits

Question 44

When do exactions not violate the takings clause

Answer 44

Exactions do not violate the takings clause when
1. there is a substantial nexus between a legitimate government interest and the conditions imposed on the property owner (i.e., the conditions substantially advance a legitimate government purpose); and
2. there is a rough proportionality between the burden imposed by the conditions on the property owner and the impact of the proposed development

Question 45

how to tell whether there is rough proportionality between burden and impact for an exaction

Answer 45

In determining whether there is a rought proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact

Question 46

When is a law content based

Answer 46

A law is content-based if it applies to certain speech because of the subject discussed or the idea expressed

Question 47

When is a law content neutral

Answer 47

A law is content-neutral when it is not necessary to hear/read the language in order to apply the regulation.

Question 48

Validity of content based regulations

Answer 48

Any governmental regulation of speech that is content based on its face will only be upheld if the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest (i.e., subject to strict scrutiny test)

Question 49

Identification of problems to be solved with content based regulations

Answer 49

The government must identify an actual problem, and the regulation of speech must be necessary to solve that problem. This standard is incredibly stringent and not often met.

Question 50

Strict scrutiny and 1A

Answer 50

The test for strict scrutiny means that the law must be the least restrictive means to achieve a compelling governmental interest. Under strict scrutiny, the law should be neither over-inclusive (reaching more people or conduct than is necessary) nor under-inclusive (not reaching all of the people or conduct intended).

Question 51

What is a “compelling” gov interest

Answer 51

There is no precise definition of what is “compelling,” but it is generally understood to be something that is necessary or crucial, such as national security or preserving public health or safety.

Question 52

Requirements for content neutral regulations

Answer 52

The government may impose restrictions on time place and manner so long as they are
1. content neutral as to subject matter and viewpoint
2. are narrowly tailored to serve a significant government interst; and
3. leave open ample alterantive channels of communication

Question 53

narrow tailoring in context of time place manner restrictions

Answer 53

When dealing with time, place, or manner regulations, the requirement that the regulation be “narrowly tailored” does not mean that the regulation must employ the least restrictive means, it need only promote a substantial government interest that would be achieved less effectively absent the regulation.

Question 54

What is a “substantial” gov interest with regard to 1A

Answer 54

The Supreme Court has held that aesthetic preservation and traffic safety are substantial government interests.

Question 55

When is a time place manner restriction narrowly tailored

Answer 55

To determine if the ordinance is narrowly tailored, it has to be determined that the ordinance promotes a substantial government interest that would be achieved less effectively without the ordinance.