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Bar II > Con Law > Flashcards

Con Law Flashcards

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1
Q

when can citizens sue states/ state officials

A

 Consent
 Injunctive relief
 Enforcement of 13th, 145th, 15th

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2
Q

original jdx of SC

A

All cases affecting ambassadors, public ministers and consuls and in which a state is a party

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3
Q

what is appellation jdx of SC

A

By certiorari (discretionary) and direct appeal (mandatory)

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4
Q

when can SC not hear a final state court judgement

A

A final state-court judgement resting upon adequate and independent state law is not reviewable
* Adequate grounds = state law fully resolves the matter
* Independent grounds = no federal precedent was used in the decision

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5
Q

elements for standing

A
  • injury in fact
    -causation
    -redressability
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6
Q

what can taxpayer have standing for

A

own tax bill, violations of establishment clause

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7
Q

when can third party have standing

A
  • special relationship
  • third party can’t assert own rights
  • risk that disallowing third party standing will dilute third party’s rights
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8
Q

when can organization sue on behalf of member

A

members have standing in own right
interests at stake are germane to org’s prupose

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9
Q

political questions not reviewed when

A

constitution assigned decision making to different branch

matter is inherently not one judiciary can decide

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10
Q

what are the kinds of abstentions

A

pullman: unsettled state law

younger: pending state criminal case

burford: parties seeking injunctive relief that would interfere with complex state regulation system

colorado river: case is substantially similar to another case being heard in state court

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11
Q

what does DPC say about recusal

A

judge must recuse if direct, substantial pecuniary interest or serious objective risk of actual bias

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12
Q

what can congress regulate under commerce power

A
  1. channels of interstate commerce
  2. instrumentalities of interstate commerce and
  3. any activity that substantially affects interstate commerce
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13
Q

rule for if taxes should be upheld

A

if reasonable relationship to revenue production

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14
Q

what can congress spend for/ do conditional funding for

A

condition must be related to the purpose
clear and unamibguous
doesn’t require unconstitutional activity
not unduly coercive

no commandeering of state legislatures

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15
Q

when can congress directly tax states

A

fine as long it is evenly apportioned among states and
reasonably related to revenue raising

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16
Q

when can congress take private property

A

for public use with just compensation or to effectuate an enumerated power

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17
Q

test for when congress passes legislation to enforce EPC and DPC

A

no expansion

must be congruence and proportionality between the injury to be prevented and means to achieve that goal

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18
Q

what is dormant commerce clause

A

if congress hasn’t spoken, states can regulate interstate commerce as long as they don’t

discriminate against out of state commerce or

unduly burden interstate commerce or

purposefully regulate wholly out-of-state activity

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19
Q

what are the exceptions that allow a state to discriminate against other states in commerce (dormant commerce clause)

A

important local interest served and no other nondiscriminatory means are available

market participant exception (state is buyer/seller)

traditional government functions (like garbage)

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20
Q

what is the test for if a stat is unduly burdening interstate commerce

A

balance purposes of state law against burden on interstate commerce and evaluate if there are less restrictive options

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21
Q

rule for state taxation of interstate commerce (if congress hasn’t already acted and the tax doesn’t discriminate/unduly burden)

A
  • substantial nexus between activity being taxed and state
  • fair apportionment such that interstate doesn’t pay more than local
  • nondiscrimination (no direct advantage to local)
  • fair relationship between tax and services provided
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22
Q

when does implied preemption happen

A
  • congress intended for federal law to occupy the field
  • state law directly conflicts with federal law
  • state law indirectly conflicts and creates obstacles

but feds just set a floor not ceiling on what state can do

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23
Q

when do states have to give full faith and credit

A

court had jdx

final judgement on merits

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24
Q

test for significant state involvement for state action

A

sufficient mutual contacts between conduct of private party and state such that the government is pervasively intertwined with the entity and
- constitutional standards should apply to the private actor or
- mutual benefit or
- state creates private entity for furtherance of gov objectives and retains control

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25
Q

what is not significant state involvement for state action

A

just licensing/regulation or receiving federal funds

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26
Q

fundamental rights for procedural due process

A

notice and hearing if liberty or property being taken

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27
Q

fundamental rights for substantive due process

A

travel
voting
privacy
second amendment

28
Q

test for fundamental right or suspect class

A

Least restrictive means to achieve a compelling government interest

29
Q

test for classification based on gender or legitimacy

A

substantially related to an important governmental interest

30
Q

default scrutiny test

A

Rationally related to legitimate governmental interest

31
Q

special test for segregating sexes

A

Government must show that there is an exceedingly persuasive justification for the gender distinction and that separate facilities are equal

32
Q

Fundamental rights unique to EPC only

A

o One person one vote
o Gerrymandering (partisan ok, race no)

33
Q

what is comity clause

A

Prohibits state discrimination against nonresident citizens for jobs, transfer of property, access to court etc

exception: substantial justification

34
Q

types of takings

A

o Seizure of property
o Damage of property
o Taking private for public
o Regulatory taking
o Exaction of promises from developer

35
Q

when is exaction of promises from a developer not at aking

A

 An essential nexus exists between legit state interests and the conditions imposed on property owner and
 Rough proportionality between the burden imposed on the property and the impact of proposed development

36
Q

what is the rule for laws that retroactively impair an ordinary right like the right to raise SOL as a defense

A

must undergo rational basis scrutiny

under this test, the law is presumed valid until the challenger shows that the law’s retroactive application has no rational relation to any legitimate government interest

37
Q

Regulation of expressive conduct upheld if

A

Regulation is within government’s power to enact

Furthers important government interest

Unrelated to suppression of ideas and

Burden on speech is no greater than necessary

38
Q

regulation of speech before it is expressed is presumed unconstitutional, except

A
  • If there is particular harm to be avoided and
  • Procedural safeguards are provided to speaker
39
Q

rule for campaign contributions

A

statutes limiting campaign contributions get intermediate scrutiny

40
Q

rule for campaign expenditures

A

restrictions on expenditures get strict scrutiny

41
Q

regulation for time place manner of expression

A

Restrictions must
* Be content neutral
* Be narrowly tailored to serve a significant governmental interest
* Leave open alternative channels

42
Q

when can you have content based restrictions in a public forum

A

if government can prove that the restriction is necessary to achieve a compelling interest

43
Q

tests for injunctions on speech

A

o Content neutral: whether it burdens no more speech than is necessary for important governmental interest

o Content based: must be necessary for the government to achieve compelling governmental interst

44
Q

test for obscenity

A

Average person applying contemporary community standards finds that the material
 Appeals to prurient interest (community standard)
 Depicts sexual conduct in a patently offensive way (community standard)
 Lacks serious literary, artistic, political or scientific value (national standard)

45
Q

define incitement

A
  • Speech directed to incite imminent lawless action
  • Likely to do so
46
Q

what do you need for fighting words

A

Must be genuine likelihood of imminent violence

47
Q

what do public/ private πs have to show for defamation

A

P is public figure or defamation involves public concern, then P must prove fault and falsity of statement

Private P must show negligence

48
Q

test for commercial speech

A

o Must concern lawful activity and be neither false nor misleading
o Asserted government interest is substantial
o Asserted regulation directly advances that interest
o Regulation narrowly tailored to serve interest

49
Q

what restriction on media does get strict scrutiny

A

Strict scrutiny for right to publish about matters of public concern

50
Q

when can media publish illegally obtained info

A

o Matter of public concern and
o They didn’t know obtain it unlawfully or don’t know who did

51
Q

levels of scrutiny for cable tv and internet

A

content based gets SS

52
Q

when can you be denied public employment based on association

A
  • Active member of subversive group
  • Knows about group’s illegal activity
  • Has specific intent to further those illegal goals
53
Q

when can you criminalize membership in group

A
  • Group is actively engaged in unlawful activity or is engaging in advocacy that passes the clear and present danger test and
  • Defendant knows of and specifically intends to further this
54
Q

what are ordinary voting rights that get RB

A

o Voter registration
o ID
o Write ins

55
Q

what are fundamental voting rights that get SS

A

o Poll tax
o No 3rd party candidates
o Property ownership requirement

56
Q

test for if gov can seize real property prior to notice and hearing

A
  • private interest involved
    -risk of erroneous deprivation/ value of safeguards
    -gov’s interest
57
Q

when can personal property be seized before notice and hearing

A

seizure involves significant gov interst

interest would be frustrated by advance notice and

seizure performed by gov

58
Q

what restrictions on firearms are ok

A

unusually dangerous firearms (grenades)

imposing conditions and qualification on commercial sales

forbidding possession by felons and mentally ill and

prohibiting the open carry in certain areas or concealed carry in public

59
Q

who can issue a writ of habeas corpus for person in federal custody

A

only a federal court

60
Q

when can congress limit president’s ability to remove a federal officer

A

only for non partisan body with no executive power or
they lack policy making

can’t directly do this because of separation of powers. But can impeach

61
Q

what is a federal officer

A

someone who i) holds continuing public office and ii) has significant discretionary authority to administer or enforce laws (executive powers)

62
Q

pike balancing test for state laws that do not discriminate against other states

A

nondiscriminatory law will be upheld unless challenger shows law’s burden clearly exceeds its local benefits

63
Q

what do courts consider when determining if activities have substantial effect on interstate commerce

A

i. if the activities are economic in nature –> if yes, substantial effect presumed
ii. regulation has a jurisdictional element that limits reach to activities with direct connection to interstate commerce
iii. express congressional findings on the effect
iv. strong link between activity and effect on interstate commerce

64
Q

states can tax fed government affiliates like contractors unless

A

i. congress granted affiliate immunity
ii. tax is discriminatory
iii. tax substantially interferes with affiliate’s purpose or duteis

65
Q

the 11th amendment prohibits individuals or foreign governments from suing a state in federal court except for when

A

when a civil right amendment is being enforced

66
Q
A

Bar II (16 decks)

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