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Bar Exam > Con law > Flashcards

Con law Flashcards

1
Q

Bill of Rights

A

Individual rights against the federal government

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2
Q

Main Body

A

Establishes a federal government with limited power

Article 1 - Legislature
Article 2 - executive
Article 3 - judicial

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3
Q

Civil rights amendments 13-15

A

Guarantee rights against states

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4
Q

Case or controvery

A

Federal courts can only here matter if there is a case or controversy (justiciability)

  • what is the case requesting (no advisory opinions)
  • when is it brought (ripe or moot)
  • who is bring it (standing)
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5
Q

Advisory opinions

A

Cannot issue
1) lack an actual dispute between adverse parties
2) lack any legally biding effect on the parties

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6
Q

Ripeness

A

1) issue for a judicial decision (legal issue)

and

2) P would suffer substantial hardship in the absence of review

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7
Q

Mootness

A

A live controversy must exist - must be suffering from ongoing injury

Exceptions
- capable of repetition yet evading review - inherently short duration
- D voluntary stops the offending but is free to resume
- Class action where the rep’s controversy is moot but the claim of a class member is still viable

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8
Q

Standing

A

Must have at all stages including appeal

Components
- injury - particularized and concrete, already occurred or imminent
- causation
- redressibility

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9
Q

Exception to no citizenship standing that government action violates federal law or constitution

A

1) challenging own tax liability
2) Tenth amendment violation if person has a redressable injury
3) Congressional spending on establishment clause grounds

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10
Q

Standing to assert rights of others

A

1) difficult for third party to assert own rights
or
2) a close relationship exists

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11
Q

Standing for free speech overbreadth

A

Can bring even if own speech would not be protected - on behalf of others whose speech would be protected

Does not apply to restrictions on commercial speech

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12
Q

Standing or organizations

A

Sue on behalf of members

1) injury in fact
2) the members’ injury is related to the org purpose
3) participation in the lawsuit is not required (ie not seeking individualized damages)

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13
Q

Sovereign immunity - 11th

A

Bars a private party’s suit against a state in federal and state courts

Bars claims against a state in federal and state agencies

Exceptions
- express waiver
- Implicit consent/structural waiver - states yield to certain federal powers
- actions against local governments
- suites by other states or the fed gov
- bankruptcy
- certain actions against state officers (damages personally or injunctions)
- congress can remove state’s immunity to prevent discrimination

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14
Q

Structural waiver to sovereign immunity

A

Federal power is complete in itself

and

the states implicitly consented to the fed gov exercising that power as part of the plan of the constitution

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15
Q

Political questions

A

Cannot be decided

1) constitutionally committed to another branch

or

2) inherently incapable of judicial resolution

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16
Q

Original jurisdiction Supreme Court

A

Cases affecting
- ambassadors
- public ministers
- consuls
- state is a party

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17
Q

Appellate jurisidction

A

Review constitutionality of acts of other branches of fed gov

review state acts under Supremacy clause

Writs of Cert - discretion
- cases from highest state court where consitit. of a fed statute, treaty, or state statute in issue, or a state statute allegedly violates fed law
- all cases from fed COA

Appeal - mandatory must hear

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18
Q

Adequate and independent state ground

A

Supreme court will not hear

state law fully disposes of the case and not based on federal case interpretation of identical federal provisions

can still hear if state does not clearly indicate decision rests on state law

(SC reversal on fed law ground will not change the result in the case)

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19
Q

Congress powers

A
  • Enumerated plus any powers necessary and proper to cary out enumerated powers
  • taxing and spending for any public purpose/general welfare - can influence behavior but cannot compel
  • Commerce power
  • war - declare war, raise and support armies, provide for and maintain navy
  • investigatory power

-property - can dispose, but need enumerated power to take private property

  • exclusive postal power
  • power over citizenship

-admiralty, power to coin money and fix weight and measures, patent and copyright power

No general police powers for health, safety, and welfare of nation
exceptions - DC, federal lands, military bases, indian reservations

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20
Q

Spending power conditions

A

Congress can impose conditions on grant of money if
- clearly stated
- related to purpose of program
- not unduly coercive
- do not violate constitution

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21
Q

Commerce power

A

Regulate interstate commerce
- channels
- instrumentalities
- activities that have a substantial effect on interstate commerce

Limitation
- cannot regulate nonec intra in areas traditionally regulated by state or local gov
- cannot compel activity, only regulate existing activity

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22
Q

Delegation of legislative pwoers

A

can delegate rulemaking or regulator power to executive or judicial as long as intelligible standards set and the power is not uniquely confined to Congress

if agency makes adopts regulation with great significance, must be able to point to clear congressional authorization

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23
Q

Separation of powers

A

Bicameralism and presentment

no line item vetoes

no legislative vetoes - congress gives itself authority to amend or repeal existing law without bicameralism and presentment

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24
Q

Executove power inherent orimplied

A

Express or implied authority from congress - Authority at max and are likely valid

Congress silent - constitutionality uncertain, cannot usurp power of another branch or prevent that branch from carrying out its tasks

Against express will of congress and congress had authority to act - likely invalid

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25
Q

President powers

A

-appointment
- removal
- pardons
- veto

  • war - no pawer to declar but is commander in chief
  • treaty - requires 2/3 of senate
  • executive agreement - no consent needed
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26
Q

Treaty conflicts

A

With federal law - last in time wins
with constitution - constitution wins

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27
Q

Executive agreement conflicts

A

With state law - agreement wins
With fed law - fed law wins

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28
Q

Impeachment

A

Majority vote of house to bring charges and 2/3 senate to convict and remove

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29
Q

Executive privilege and immunity

A

Privilege - certain presidential communications
- exception - criminal proceeds where need is demonstrated

Immunity - absolute from civil damages during official responsibilities

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30
Q

State general police powers

A

upheld if rational

health, safety, welfare

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31
Q

Anti-comandeering

A

Congress cannot commandeer states by requiring them to enact state laws or to enforce federal laws

exception - civil rights- restrict states from discriminating or violating due process
- tax or regulation applying to state and private entities (min wage law)

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32
Q

Preemption

A

Express
Implied
- conflict between state and fed law requirements - impossible to follow both
- state prevents achievement of fed objective
- field preemption (ie comprehensive or agency formed)

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33
Q

Privileges and immunities article iv

A

Prohibits discrimination against non residents concerning commercial activities or fundamental rights if it is intentionally protectionist

corporations and aliens not protected by this clause

standard
-necessary to achieve and important gov purpose/substantial justification
no less restrictive means

34
Q

Privileges of national citizenship - 14th

A

State may not deny their citizens the privileges or immunities of national citizenship

  • right to vote for fed officers
  • right to interstate travel
35
Q

Dormant Commerce clause

A

State or local gov cannot discriminate against or unduly burden interstate commerce

Discriminatory - almost always invalid
- necessary to achieve important non-ec state interest
- no reasonable nondiscrim alternatives

Nondiscriminatory - balancing test
- valid unless burden outweighs the promotion of a legitimate local interest

36
Q

Exceptions to dormant commerce clause

A

Congressional approval or prohibition

State as market participant - may prefer own citizens

37
Q

State taxing power that affects interstate commerce

A

Discriminatory - violate commerce clause

nondiscriminatory - valid if substantial nexus between activity and taxing state, fair apportionment, and fair relationship to the servies or benefits provided byt the state

38
Q

Full faith and credit

A

State court judgments must be recognized by other states if

Court had jurisdiction
judgment was on the merits
the judgment was final

39
Q

State action requirement

A

Even if private individual, considered state action if
- perform exclusive public functions
- have significant state involvement

Exclusive public functions
- traditionally the exclusive prerogative of the state no matter who performs

40
Q

Levels of scrutiny

A

Rational basis
Intermediate
Strict

41
Q

Rational basis

A

Do not affect fundamental rights or suspect classes

upheld if rationally related to a legitimate gov purpose

person challenging has burden of proof

42
Q

Intermediate scrutiny

A

Quasi suspect class - gender or legitimacy

upheld if substantially related to important gov purpose

usually BOP on gov

43
Q

Strict Scrutiny

A

Fundamental right or suspect class - race, national origin, alienage

necessary/narrowly tailored to achieve a compelling gov purpose

BOP on gov

44
Q

Due process

A

fair process when gov deprives person of life, liberty, or property

must be intentional or reckless gov action- not negligence

liberty - loses significant freedom of action or is denied freedom provided for in the constitution or statute

property - personal and real, and gov benefits to which there is an entitlement - reasonable expectation of continued receipt

45
Q

Procedural due process

A

Need
- notice
- opportunity to be heard
AND
- neutral decisionmaker

Hearing balances importance of the interest and the specific procedural safeguards against the gov interest in efficiency

46
Q

Substantive due process

A

Guarantees hat laws will be reasonable and not arbitrary

Fundamental rights -SS
- all first amendment
- right to interstate travel
- privacy
- voting

Everything else - RB

47
Q

Fundamental right - unenumerated

A

deeply rotting in nation’s history and tradition and essential to concept of ordered liberty

48
Q

Substantive DB v EP

A

SDP - limits rights of all persons

EP - treats a person or class differently

49
Q

Privacy rights

A

Marriage, procreation, contraception, childrearing, rights or parents, keeping extended family together, obscene reading material in the home

Exception - prisoner’s rights - upheld if reasonably related to legit penological interests

50
Q

Right to travel

A

Interstate - fundamental
- travel state to state
- be treated equally after moving to new state

international - not fundamental

51
Q

Right to vote

A

Fundamental

restrictions allowed - residence, age, citizenship

state and local elections - populations of districts must be substantially equal - variance up to 16% valid

congressional elections - almost exact mathematical equality for districts

gerrymandering - race or suspect classes cannot be predominant factor

52
Q

Right to bear arms

A

Permit law - criteria must be clear, no discretion

standard of review - consistent with historical tradition of firearm regulation

53
Q

Unspecified rights

A

Intimate sexual conduct in private

right to refuse medical treatment
- but state can compel vaccinations against contagious diseases

54
Q

Proving discriminatory classification - ep

A

discriminatory on its face
Discriminatory application plus intent
disparate impact plus intent

55
Q

Remedying intentional school segregation

A

Can remedy based on past effects of segregation
cannot solely promote diversity

56
Q

Affirmative action

A

compelling interest to remedy past gov discrim if it was persistent and readily identifiable

cannot be general past discrimination

57
Q

Alienage

A

Federal classification - rational basis

State and local laws on alienage - strict scrutiny
-Exception - participation in state government and positions importnat to public policy is rational bases

58
Q

Animus

A

Does not meet rational basis

imposing burden on a group because of a dislike of that group

59
Q

The taking clause

A

Private property may only be taken
- for public use (rationally related to legit purpose)
- and the gov must pay just compensation (fmv at time of taking)

includes personal property, real property, and certain intangibles but not welfare benefits

60
Q

Physical takings - confiscation or occupation

A
  • Confiscation of a person’s property
  • a permanent or regular physical occupation of a person’s property by the government
  • a temp occupation depending on degree of invasion, duration, intention, foreseeability of result, interference

exceptions
- development - gov show essential nexus between condition and development and the adverse impact of the development is roughly proportional to the loss from forced transfer
- emergency - public policy such as war

61
Q

Regulatory taking - use restriction

A

denial of all economic value of land

if temporary - look at good faith, reasonable expectation of owners, length of time, effect on value

Decreasing economic value - balancing test - and look at other ec viable use
- gov interest
-loss of value
-wither the regulation substantially interferes with distinct, investment backed expectation of owner

62
Q

Contract Clause

A

Limit ability of state and local gov to enact laws that retroactively impair contract rights (fed gov = dp)

Private contracts - IS
- leg that subs impairs private contract invalid unless important gov interest and narrowly tailored

Public contract - heightened scrutiny

63
Q

Ex post facto laws and bill of attainder

A

cannot retroactively alter criminal offenses or punishments in a subs prejudicial manner for purpose of punishing for some past activity

cannot inflict punishment on individual through legislative act without a judicial trial

64
Q

Retroactive legislation

A

Contract clause
ex post facto laws
bill of attainder

65
Q

Freedom of speech

what is speech

A

Speech - words, symbols, expressive conduct
- inherently expressive or conduct intended to convey a message and reasonably likely to be perceived as conveying a message

66
Q

Unprotected speech - incitement

A

Incitement - intended to produce imminent lawless action and likely to produce such action

67
Q

Unprotected speech - fighting words

A

fighting words - personally abusive words that are likely to incite immediate physical retaliation in an average person
- true threats - words intended to convey to someone a serious threat of bodily harm
- statutes for fighting words cannot be viewpoint based

68
Q

Unprotected speech list

A

Incitement
Fighting words
Obscenity
defamatory speech
some commercial speech

69
Q

Unprotected speech - Obscenity

A

Describes or depicts sexual conduct specified by state that:

  • appeals to the prurient interest in sex using contemporary community standards
  • is patently offensive under contemporary community standards

AND

  • lacks serious value using a national, reasonable person standard
70
Q

Unprotected speech - defamatory speech

A

defamatory statement about a public official or public figure or involves a matter of public concern

must prove all elements plus falsity and some degree of fault

public official or figure - fault is actual malice
- knowledge that it was false or reckless disregard

Private figure but public concern - can only recover actual damages if negligence, punitive if actual malice

71
Q

Unprotected speech - some commercial speech

A

Not protected if false, misleading, or about illegal products or services

any other regulation upheld if
- serves a substantial gov interest
- directly advances interest
- narrowly tailored

72
Q

General speech restrictions - content based regulations

A

Strict scrutiny

restricts speech based on the subject matter or viewpoint of the speech

73
Q

General speech restrictions - content neutral regulations

A

Neutral to subject matter and viewpoint

intermediate scrutiny

form of time, place, and manner restrictions (conduct related to speech)

74
Q

Public forum - traditional and designated

A

Traditional public forum - Public property historically open to speech related activities - streets, sidewalks, public parks

Designated public forum - not historically open to speech related activities, but gov opened for such activities

Content based - ss
Content neutral - IS and must leave open alternative channel of communication

75
Q

Public forum - limited and nonpublic

A

limited - not historically open for speech but open for specific speech activity

nonpublic - gov property not held open for speech

Regulate to reserve forum for its intended use if
- viewpoint neutral
- reasonably related to legit gov interest - RB

If viewpoint based -SS

76
Q

Speech restriction in public schools

A

Not public forums

reasonably regulate to serve schools educational mission

  • student speech on campus cannot be censored absent substantial disruption
  • student speech off campus- limited to prevent cheating, bullying, threats, etc
  • teaching - reasonably related to legit pedagogical concern
77
Q

Speech in public employment

A

at work and private concern - can punish if disruptive to work environment - no 1st A

on job and pursuant to official duties - punish even if public concern - no 1st A

Public concern not pursuant to official duties - balancing test - value of speech against gov’s interest in efficient operation of workplace

Private concern outside of workplace - can be punished if detrimental effect on workplace

78
Q

Prior restrain

A

Some special societal harm

Content based- SS
content neutral - IS

Licenses and permits cannot five officials broad discretion over speech issues - otherwise void on its face

79
Q

Free exercise clause

A

cannot punish someone on the basis of their religious belief or related relig status or conduct

can question sincerity but not truthfulness of belief

discriminatory if not netural or neutral by not generally applicable - by design targets - SS

80
Q

Establishment clause

A

Prohibits government sponsorship of religion - gov cannot aid or formally establish a religion

Bar Exam (12 decks)

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