Con Law

Question 1

Article III exceptions clause

Answer 1

Gives Congress power to expand, regulate, or make exceptions to such jurisdiction

Question 2

Adequate and independent state grounds (when it occurs and its effect)

Answer 2

(1) Adequate: state law completely resolves the matter, such that the application of federal law would not affect the outcome of the case
(2) Independent: the state court did not rely on federal law to decide the state-law issue

Effect: SCOTUS must refuse to hear the appeal

Question 3

Standing

Answer 3

To have standing, the plaintiff must establish
- injury-in-fact: actual or imminent harm that is concrete and particularized
- causation: the injury is fairly traceable to the defendant’s challenged conduct
- Redressability: a favorable judicial decision will likely remedy or prevent the alleged injury

Question 4

Article I necessary and proper clause

Answer 4

Gives Congress the power to enact laws that are reasonably appropriate to carry out the President’s express powers

Question 5

Dormant Commerce Clause

Answer 5

Prohibits a state from discriminating against out-of-state commerce UNLESS
(1) if the state or local government can establish that an important local interest is being served, and
(2) no other nondiscriminatory means are available to achieve that purpose

Question 6

Complete Auto test (applicability)

Answer 6

A state tax imposed on interstate commerce

Question 7

Federal Equal Protection clause

Answer 7

Does not exist BUT SCOTUS has held that the Fifth Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause

Effect: subjects discrimination by the federal government to the same standards as discrimination by the states

Question 7

Complete Auto Test requirements

Answer 7

• the activity taxed must have a substantial nexus to the taxing state
• the tax must be fairly apportioned
• the tax may not discriminate against interstate commerce, and
• the tax must be fairly related to the services provided by the state

Question 7

Additional prohibitions on state tax of foreign commerce

Answer 7

State tax must not…
- create a substantial risk of international multiple taxation or
- prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues

Question 8

What does it take for a governmental affirmative action program based on race to survive?

Answer 8

The relevant government entity
(1) must be guilty of specific past discrimination against the group it is seeking to favor
(2) the remedy must be narrowly tailored to end that discrimination and eliminate its effects
*Remedying general societal injustice through affirmative action is not a compelling state interest

Question 9

Standard applicable to noncitizen’s participation in government functions

Answer 9

Only require rational relationship to a legitimate state interest

Question 10

Government regulation of speech in nonpublic forum

Answer 10

Permissible as long as the regulation is
- viewpoint neutral
- reasonably related to a legitimate governmental interest

Question 11

State regulation of content of speech

Answer 11

Permissible if the regulation is
- necessary to achieve a compelling government interest
- narrowly tailored to meet that interest

Question 12

Categories of speech where content-based regulation is generally found constitutional

Answer 12

• obscenity
• subversive speech
• fighting words
• defamation
• commercial speech

Question 13

Fighting words

Answer 13

Words that by their very nature are likely to incite an immediate breach of the peace

Question 14

Subversive speech

Answer 14

speech that is directed to incite or produce imminent lawless action and that is likely to produce such action

Question 15

Standard of review for commercial speech such as advertising

Answer 15

intermediate scrutiny, must be narrowly tailored to serve a substantial governmental interest (reasonable fit between the government’s ends and the means chosen to accomplish those ends)

Question 16

Four-part test for reviewing commercial speech

Answer 16

• it must concern lawful activity and be neither false nor misleading
• the asserted government interest must be substantial
• the regulation must directly advance the asserted interest, and - the regulation must be narrowly tailored to serve that interest.

Question 17

Different kinds of takings

Answer 17

• Taking ownership of private property and modifies it for a public purpose
• Giving a third party (e.g. a utility company) the right to occupy even a small space on the property
• Destruction of private property
• Regulatory taking

Question 18

In what instance is the destruction of private property permitted?

Answer 18

When it is destroyed in response to a public peril

Question 19

Regulatory taking

Answer 19

A government rule adversely affects a person’s property to such an extent that it rises to the level of a taking

Question 20

Factors to consider re: regulatory taking into account

Answer 20

• Gravity of the economic impact
• Extent to which the regulation interferes the with owner’s reasonable investment- based expectation
• Character of the regulation (how much it will benefit society)

Question 21

Two examples of a regulatory taking

Answer 21

• Permanent, physical occupation of property
• Permanent total loss of property’s economic value

Question 22

Third-party standing examples

Answer 22

• Doctor raises the injuries of their patients
• School can raise the injuries of its students
• Bartender can raise the constitutional injuries of her customers
• Parent generally has standing to bring an action on behalf of her minor child

Question 23

Requirements for an organization to be able to sue on behalf of its members

Answer 23

• Members would have standing to sue in their own right
• Interests at stake are germane/relevant to the organization’s purpose