Brainscape's Knowledge GenomeTM

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


See full index

Bar Exam > Con law > Flashcards

Con law Flashcards

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

Article 1

A

Establishes legislative branch, vested in congress

Congress has explicit powers under article 1, and implied power under “Necessary and Proper” Clause: Congress has implied powers that are “useful or essential” to exercise of express powers

(i) commerce power, (ii) taxing power, (iii) spending power (iv) raise/support military, (v) declare war, (vi) regulate immigration, (vii) use taxes/spending to defend country
- MAY NOT: delegate legislative power, but CAN authorize “intelligible principle” to guide other branch to do administrative rulemaking and regulatory enforcement

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

Commerce Clause

A

Congress can regulate interstate commerce: (i) channels of interstate commerce, (ii) instrumentalities/persons/things of interstate commerce, (iii) economic activities that “substantially affect” interstate commerce
- aggregation: small-scale activities that collectively can be considered to effect interstate commerce

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

Dormant Commerce Clause

A

states CAN’T: (a) discriminate against interstate commerce, (b) burden interstate commerce, UNLESS Congress authorizes

  • FACIALLY discriminate: (a) facially favors in-state commerce over out-of-state commerce, or (b) practical effect is to discriminate against out of state commerce, IF SO then MODIFIED STRICT SCRUTINY: (1) legitimate government interest, (2) narrowly tailored (no non-discriminatory alternatives)
  • NON-FACIALLY BUT BURDEN’S: commerce: MODIFIED INTERMEDIATE SCRUTINY: (1) legitimate goal, (2) rationally related, (3) BURDEN DOESN’T CLEARLY EXCEED BENEFITS

EXCEPTION:
- “market participant exception” = if state acting as market participant (buying/selling goods directly) rather than acting as a regulator, than dormant commerce clause doesn’t apply and the state can discriminate by only buying/selling to in-state vendors

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

Taxing/spending power

A

Taxes are valid if (1) provides some revenue, and (2) isn’t a penalty

  • taxes must be uniform throughout country
  • direct taxes must be apportioned among states
  • congress may condition states receipt of federal funds
  • congress may use taxes to encourage or deter specific conduct
  • congress can’t “unduly coerce” states through taxing/spending power

Spending power: congress may spend money for general welfare, interpreted broadly

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

Article 2

A

Executive branch power vested in president

(i) enforce federal law (ii) appoint/remove federal officers, (iii) pardon federal crimes not involving impeachment (iv) recommend legislation to congress (v) foreign relations (vi) commander-and-chief (vii) deploy military without congressional approval if emergency (vii) treaties if 2/3 senate approval

Executive orders: Order used by president to enforce federal law (typically directed toward federal officials/agencies)
- Has “force of law” (can direct agencies on how to enforce law) but cannot actually create or change federal law

Treaty: (a) president may enter treaties on behalf of US ratified by 2/3 senate, (b) rescind treaties unilaterally without approval (c) treaties valid unless violate constitution
- Treaties are on equal footing with other federal laws (one enacted most recently prevails)
- has force of law

Executive agreements: Agreement between president and foreign country
- like treaty but doesn’t need congressional approval, only politically binding on US, so long as doesn’t violate constitution
- executive agreements inferior to federal laws

  • BUT: Treaties/executive agreement supersede state law

Appointment:
- principal officers: president nominates, majority of senate approves (ambassadors, federal judges, cabinet officials)
- inferior officers: president appoints, but congress can decide someone else may appoint them as well

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

Supremacy clause

A

Federal law superior to state law

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

Article 3

A

Establish judicial branch

One supreme court, and other lesser federal courts created by congress

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

Article 3: Federal jurisdiction

A

Judicial branch jurisdiction extends to all cases that arises under constitution/treaties/federal law/US party/2 states/state and citizens of another state/citizens of different states

Supreme court original jurisdiction: (a) state is party, (b) ambassadors/public ministers/consuls

Supreme court appellate jurisdiction: (a) everything else (Marbury v Madison: Judicial review: Judicial branch has final authority to interpret constitution and declare acts unconstitutional)
- appeal as discretionary: most cases
- appeal as matter of right: state party/ambassadors

Congress limitations on supreme court jurisdiction:
- may only limit supreme courts DISCRETIONARY appellate review
- CANNOT limit/expand ORIGINAL jurisdiction of supreme court

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

Checks and balances

A

Executive, legislative, judicial

Legislative: (a) where legislative/executive share power, Congress can limit executive power (b) Congress can impeach president/federal officers
- MAY NOT: delegate legislative power, but CAN authorize “intelligible principle” to guide other branch to do administrative rulemaking and regulatory enforcement
- BUT NOTE: once congress delegates, can’t give itself veto power, must then pass a bill to overturn the delegates decisions
- “Bicameralism and presentment”: Both senate/house must pass bill (bicameralism), then goes to president (presentment), president then signs/vetoes/does nothing

Executive: (a) veto bill entirely (Congress overrides by 2/3 vote), (b) no action on bill (becomes law in 10 days automatically)
- “line item vetoes” (changing specific provisions of passed bill) is unconstitutional, president must completely veto or approve

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

Justiciability doctrines (Case or controversy requirements)

A

(1) case or controversy requirement (2) standing, (3) ripeness, (4) mootness, (5) no advisory opinions (6) political question doctrine

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

no advisory opinion requirement

A

Specific adversarial disputes, not abstract legal questions

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

Standing requirement

A

(1) injury, (2) causation, (3) redressability

  • injury: concrete injury that has occurred or imminent
  • causation: traceable to D’s actions
  • redressability: judicial remedy
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Ripeness requirement

A

Dispute is ready to be decided, is fully formed, involving threat of real and immediate harm

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

Mootness doctrine

A

Court decision will no longer affect any legal interest

Exceptions: (i) defendant voluntarily ceased conduct (ii) issue capable of repetition yet evading review, (iii) plaintiff whose claim is moot is representative member of class action

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

Political-question doctrine

A

(i) matter constitution delegates exclusively to another branch, or (ii) case that lacks judicially manageable standards of decision

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

Doctrine of adequate and independent state grounds

A

Federal courts can’t interpret state law, they can only interpret state court decisions that in some way are decided using federal law

If not clear, federal courts presume federal law was used, and therefore have jurisdiction

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

Due Process

A

Procedural: Regulates procedures government must follow before depriving life, liberty, or property
- life = life
- liberty = change legal status, no discretion
- property = entitled to it
REQUIRES: (1) notice, and (2) opportunity to be heard

Substantive: Regulates content of laws and provides basic rights protected by constitution,
- Fundamental right: Strict scrutiny (1) compelling government interest, (2) narrowly tailored
- other rights: rational basis (1) legitimate government interest, (2) rationally related

NOTE DIFFERENCE BETWEEN DUE PROCESS AND EQUL PROTECTION
- Due process = fundamental rights deprived
- Equal protection = classifying people and treating differently

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

Procedural Due Process

A

No due process = procedural Due Process violation

Some Due Process = 3 part test (a) private interest, (b) risk of erroneous deprivation, (c) government’s interest

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

Substantive Due Process

A

Fundamental Rights guaranteed explicitly or implicitly in constitution

(examples: right to travel, right to raise one’s children, right to marry, right to live with family members, right to engage in consensual sexual activity, freedom of religion, etc. etc.)

Test: Strict Scrutiny: (1) narrowly tailored, (2) achieve compelling government interest

20
Q

Equal Protection

A

5th/14th amendments: government cannot classify/treat individuals differently

(suspect class) Race, religion, national origin, alienage:
- strict scrutiny (1) narrowly tailored, (2) compelling government interest NARCO

(quasi-suspect class) gender, non-married parents: -
- intermediate scrutiny (1) policy substantially related, (2) important government interest SUBIMP

All other classifications:
- rational basis review: (1) policy rationally related, (2) legitimate government interest, RATLEG

Fundamental rights
- voting
- ballot access for candidates
- interstate travel
- marriage
- procreation
- family living
- access to courts

NOTE: Federal laws that target state conduct that it deems a violation of 14th amendment (1) violates 14th amendment, and (2) is “congruent and proportional” to the constitutional harm

21
Q

Takings Clause

A

Government cannot take private property without (a) public purpose, and (b) just compensation

2 types: Physical takings and Regulatory Takings

22
Q

Physical Takings

A

(a) seizes property, or (b) makes permanent physical invasion of property

23
Q

Regulatory Takings

A

(a) law destroys all economically viable use of property (unless nuisance),

(b) law excessively or unforeseeably restricts property use without destroying value,

(c) law requires owner give up property in exchange for a government benefit
- (takings unless (1) essential nexus between condition and government interest)

24
Q

Contracts Clause

A

No STATE shall pass any law impairing contracts
- private contract: (1) K between private parties, (2) state law, (3) substantially impaired contract, IF SO (1) legitimate purpose, (2) appropriately tailored
- public contract: (1) K with state, (2) state law, (3) substantially impaired contract, IF SO (1) legitimate purpose, (2) appropriately tailored

  • NOTE:
    – same test BUT less deference given to state K rather than between private Ks (because state could just self-help remove Ks)
    – only applies to existing contracts, future contracts don’t implicate contract clause
25
Q

Ex post facto laws

A

Constitution prohibits FED and STATE from enacting criminal laws with retroactive effect

26
Q

Bill of attainder laws

A

Prohibits FED and STATE from enacting laws naming specific individuals or groups and imposing punishment without a trial
- “punishment” includes (a) imprisonment, (b) loss of rights, or (c) loss of property

27
Q

Unconstitutional conditions doctrine

A

Prohibits FED and STATE from conditioning receipt of discretionary benefit on waiver of a constitutional right
- BUT: uphold speech restriction if (1) reasonably necessary, (2) for effective performance of employment K
- BUT: uphold easement condition (1) essential nexus between the condition and the state interest at issue, and (2) the extent of the condition must be roughly proportional to the impact of the proposed development.

28
Q

1st amendment

A

(a) freedom of press, (b) freedom of association

NOTE: must be state actor

29
Q

Freedom of association

A

Freedom of association and non-association

Strict scrutiny (1) compelling interest, (2) narrowly tailored (no alternative means), (3) unrelated to suppression of ideas, (4) state actor
- state not allowed to inquire into prior association affiliation

IF expressive/familial organization denies membership: - Step 1: intimate or expressive organization qualifying for freedom of association? (familial characteristics or expressive speech purposes)? Then strict scrutiny

30
Q

Freedom of press

A

Content based: strict scrutiny (1) serves compelling government interest unrelated to suppression of ideas, (2) no less restrictive means

Content neutral: intermediate scrutiny (1) important government interest, (2) narrowly tailored

  • BUT: freedom of press is no immunity from application of general laws (ex: reporter pays 5,000 for material, still obligated to pay contract) (ex: reporter sued for false light tort, reporter still liable)
  • BUT: tax that singles out press needs (1) compelling interest, (2) not achievable through differential tax
31
Q

Freedom of religion

A

Free exercise clause: STATE and FED cannot interfere with “free exercise” of sincerely held religion
- BUT (1) generally applicable law, (2) incidentally burdens: THEN rational basis: (1) legitimate gov interest, (2) rationally related
- BUT (1) deliberate target religion THEN strict scrutiny: (1) compelling gov interest, (2) narrowly tailored

Establishment clause: make no law “respecting an establishment of religion”
- test: historical practices and understandings

32
Q

Article 4 Privileges and Immunities Clause

A

Prohibits states from discriminating against out-of-state residents
- (ex: occupation, private property, access to courts) BUT NOT: (recreational activities)

(1) non-residents “peculiar source of evil”, (2) substantial or close relationship between problem and methods chosen to address it

33
Q

1st Amendment Free Speech

A

GOVERNMENT can’t restrict speech or expressive conduct (doesn’t protect from private actors)

Content-based: restrict speech based on what speech says (strict scrutiny) (1) narrowly tailored, (2) compelling (NARCO)

Content-neutral: restrict speech based on time/place/manner AND commercial speech (intermediate scrutiny) (1) narrowly tailored, (2) substantial interest (NARSUB)

  • BUT:
    (a) “fighting words” (provoke immediate violent response) not protected
    (b) incite crime: (1) advocacy of specific crime, (2) imminent, (3) likely to occur
    (c) defamation
    (d) true threat (threat to specific person/group)
34
Q

Speech regulation on government forums

A

(i) traditional public forums, (ii) limited public forums, (iii) nonpublic forums

Traditional: Traditional speech locations (streets, sidewalks, parks)
- (apply normal content based/content neutral rules)

Limited: designated as place for limited purposes (auditorium or stadium)
- (apply normal content based/content neutral rules) BUT Gov can deny access for non-designated uses in a viewpoint neutral manner

nonpublic: not open to public (military base, courthouse, jail)
- (rational basis) (1) reasonably related, (2) legitimate government interest

35
Q

Commercial speech

A

Commercial speech: proposes commercial transaction
- Intermediate scrutiny: (1) substantial government interest, (2) isn’t more extensive than necessary (NARSUB)

BUT: (a) false/deceptive/misleading, or (b) proposes illegal transaction, NOT protected by 1st amendment

36
Q

Expressive Speech

A

Acts intended to portray a message:

  • if purpose to regulate underlying message, THEN strict scrutiny, (1) compelling interest, (2) narrowly tailored (least restrictive)
  • If purpose to regulate conduct itself, THEN intermediate scrutiny (1) substantial interest, (2) narrowly tailored (no more than necessary)
37
Q

Government funding particular speech

A

Government can fund particular viewpoints without violating 1st amendment

38
Q

Overbreadth and vagueness

A

Overbroad: punishes “substantial” amount of constitutionally protected conduct

Vague: reasonable person cannot tell what speech is prohibited and what is permitted

39
Q

Prior restraint

A

Court orders the inhibit speech prior to it occurring is unconstitutional
- UNLESS: (a) national security, (b) protect trial integrity

40
Q

11th amendment: Sovereign immunity

A

States are immune from being sued by PRIVATE parties/foreign citizens
- state can consent
- doesn’t bar declaratory or injunctive relief against state officials in their OFFICIAL capacities for federal law violations, BUT can’t recover money damages in these exception cases
- doesn’t bar suits for declaratory/injunctive/money damages for state officials acting in their private capacity
- only applies to state itself, counties, cities, towns etc can still be sued
- NOTE: congress can expressly limit “abrogate” state’s 11th amendment rights if: (1) unequivocally express intent to remove 11th amendment state immunity, (2) congressional act under 13th/14th/15th amendment (postdates 11th amendment)

41
Q

10th amendment/supremacy clause limit to STATE/FEDERAL power

A

10th amendment: All power not granted to federal government goes to the states

“anticommandeering doctrine”: prohibits the federal government from interfering with the states in their sovereign capacities as regulators of their own citizens aka: (1) forcing a state to enact particular legislation or (2) compelling a state to perform federal executive duties
- BUT: states must follow federal laws of general applicability (AKA: fed law must apply equally to states and to private citizens)

Supremacy clause: federal law supreme to state law

Federal immunity: STATE may not regulate federal employees if “substantially interferes”, BUT not if (a) only incidentally interferes, or (b) congress consents

42
Q

Valid-excuse rule

A

(1) neutral rule, (2) about court administration, is a valid excuse for state court to refuse to hear federal cause of action

43
Q

Federal preemption

A

Supremacy clause: federal law supreme to state law

  • express preemption: federal law explicitly states preemptive over state law
  • conflict preemption: federal/state law requirements OR goals conflict
  • field preemption: federal law has occupied the entire field of regulation
  • regulatory preemption: federal administrative regulations that have force of law also preempt state law
44
Q

Free speech: State action doctrine (speech regulation by private entity deemed state action)

A

Constitution only protects harm from state actors NOT private actors
- UNLESS private actor deemed state actor:

(a) conduct traditionally exclusively performed by state (ex: private entity running a town)

(b) state interdependence with the private actor (ex: private shop leasing space out of government building)

(c) state commands/facilitates/encourages private actor’s conduct (ex: civil plaintiff using peremptory strikes relies on government to facilitate peremptorys)

(c) state inextricably intertwined with private actor (ex private athletic org that made up of 84 percent public schools)

45
Q

Campaign expenditures/contributions

A

Contribution restrictions: Intermediate scrutiny SUB/IMP

Expenditure restrictions: Strict Scrutiny NARCO

Bar Exam (17 decks)

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