Con Law

Question 1

State Sovereign Immunity
(11th Amendment)

HIGH

Answer 1

Prohibits a party from suing a state or state agnecy in federal court UNLESS:
* state consents
* suit pertains federal laws adopted under Section 5 14th amendment
* suit seeks money damages from a state official

11th Amendment does not apply to:
* local governments
* federal suits brought by one state against another state
* suit by federal government against a state

Congress vcannot arograte state sovereig immunity Except for federal laws adopted under Section 5 of the Fourteenth Amendment
* whether Congress expressed intent to abrograte (repeal) the immunity AND
* whether Congress acted pursuant to a valid grant of constitutional authority

Question 2

Standing

MED

Answer 2

Article III of the Constitution limits federal courts to deciding ACTUAL CASES OR CONTROVERSIES.

Standing exists when plaintiff:
* personally suffered and injury in fact (includes violation fo privacy; violation of constitutional rights, but mere violation of a statute is insufficient if plantiff has no suffered concrete injury)
* injury was caused by the defendant
* Injury can be remedied by a cout order

Note: When Plaintiff seeking injunctive relief, plaintiff must show that there is an imminent threat of future injury.

Question 3

Organizational and Third-Party Standing

MED

Answer 3

Third Party standing enerally not permitted.

Exception:
* close relationship between plaintiff and third-party
* difficult or unliekly for third party to assert rights on their own OR
* third party is an organization

Question 4

Taxpayer Standing

MED

Answer 4

A plaintiff may always bring a suit regardin the specific amounts owed under their tax bill.

However, plaintiff does not have standing to sue solely based on being a taxpayer, except when taxpayer is challenging government expenditures in violation of the Establishment Clause (Freedom from Government establishing a religion) of the constitution.

Question 5

Ripeness
(Case or Controversy)

MED

Answer 5

Ripeness refers to whether the case is ready to be litigated. A case is ripe when there is actual harm or an immediate threat of harm to plaintiff.

Question 6

Mootness

MED

Answer 6

Mootness refers to instances when the dispute has ended or was resolved before review.

Exception: A court may hear a case that has ended or was resolved when
* the wrong alleged is capable of being repeated and escaping review
* the defendant voluntarily stops an offending practice, but can resume it at any time
* in a class action where at least one member of the class has an ongoing injury

Question 7

Commerce Clause
(Congressional Power)

MED

Answer 7

Commerce Clause of the Constitution grants Congress authority to regulate commerce between the States, foreign nations and Indian Tribes.

Congress may regulate:
* channels of interstate commerce (highways, phone lines)
* People and instrumentalities working and traveling in interstae commerce (cars, airplanes, pilots) AND
* economic or commercial activities that have a substantial effecdt on interstate commerce

Question 8

Commerce Clause - Intrastate Activities
(Congressional Power)

MED

Answer 8

Federal regulations of intrastate activities will be upheld if:
* there is a rational basis
* to conclude that the cummulative national impact of the activities
* have a substantial effect on interstate commerce

Cannot be used when activities regulated are NOT commercial or economic (ex: firearms in school zones, general acts of violence)

Question 9

Taxing Power
(Congressional Power)

MED

Answer 9

Congress has power to lay and collec taxes. Must be geographically uniform throughout US.

Under 16th amendment, Congress has power to collect taxes on income.

Question 10

Spending Power - Federal funding conditions for states
(Congressional Power)

MED

Answer 10

Congress has power to spend for the common defense and general welfare of the US>

Allows Congress to attach conditions on states receiving federal funds.

Spending power must satsify five restrictions:
* spending must be for general welfare
* condition must be imposed unambiguously
* condition must be related to federal interest
* condition cannot induce activites that would be unconstitutional AND
* condition cannot be coercive (leaving state with no other option but to give in; usually 10% or more of state budget)

Question 11

Domestic Power
(Presidential Powers)

MED

Answer 11

President has power to:
* Take care clause - faithfully execute the law
* Appoint ambassadors, public ministers, consuls, Supreme court judges, federal court judges and other officers (with Senate advice and consent)
* Appoint inferior officers, when power is given to president by congress
* remove cabinet level appointees (unless congress passes law requiring good cause)
* pardon federal crimes (other than impeachment) AND
* Act as commander in chief of ht military (power to control the troops)

Question 12

Treaty and Foreign Affairs Powers
(Presidential Powers)

MED

Answer 12

The President shares treaty powers with Congress.

Treaties may be negotiated by the President, but must be ratified by a 2/3 vote of the Senate.

President may enter into Executive Agreements (agreements between President and a head of a foreign country) w/o Senate approval.

Question 13

Delegation of Legislative Powers by Congress

MED

Answer 13

Congess has broad authority to delegate legislative powers as long as:
* Powers are delegable under constiution (cannot delegate power to impeach or declare war) AND
* Congress provides reaonably intelligible standards to guide the delegation

Question 14

State Immunity From Federal Law

HIGH

Answer 14

Under 10th Amendment, all powers not granted to the Federal government are reserved to the states.

Congress cannot compel state governments to impelement legislation, but can incentivize state governmens by attaching restrictions and conditoins on federal funding.

Congress can regulate state activities on same terms as private actors as long as it doesn’t commandeer how states regulate private parties.

Question 15

Negative Commerce Clause

HIGH

Answer 15

State and local governments generally cannot pass laws that
* discriminate against out-of-state commerce OR
* place and undue burden on interstate commerce

Discriminatory when it either (i) facially discriminates or (ii) has a discriminatory impact because it favors in-state commerce over out-of-stae commerce UNLESS
* burden on interstate commerce is narrowly tailored to achieve a legitimate, non-protectionsist state objective (i.e. ther are no less-discriminatory alternatives available) OR
* the state or local government is a market participant rather than a regulator

Note: States cannot use discriminatory means to accomplish even a legitimate environmental purpose (prohibiting the disposal of out-of-state waste in-state).

Question 16

Supremacy Clause and Preemption

MED

Answer 16

Under the Supremacy Clause, federal law always trumps conflicting state law.

Implied preeemption occurs through
* a direct conflict with state law
* field preemption (when its clear fed gov wanted to exclusively occupy a field) OR
* when state law substantially interferes with the objectve of the federal law

Question 17

Governmental Action (“State Action”)

HIGH

Answer 17

Generally, conduct of private individuals or entities do not constitute state actions and is not protected by US Consitution unless:

• involves a traditional public function (powers traditionally reserved to the government) OR
• when signfiicant government involvements exists to authorize or facilitate private conduct that is unconstitutional

Note: Private school or college is not state action, even when funded by government.

Question 18

Substantive Due Process - Fundamental Rights Test
(14th Amendment - state)
(5th amendment - federal)

MED

Answer 18

When gov attempts to regulate fundamental rights, it must satisy strict scrutiny (i.e, government must show that the law is necessary to serve a compelling government interest)

Fundamental rights include:
* right to vote
* right to interstate travel
* right to privacy (including right to marry, procreate, etc)

If not a fundamental right, goverment may egulate activities under the rational basis test. Plaintiff must show that the law is not rationally related t oa legitimate government interest.

Question 19

Procedural Due Process

MED

Answer 19

Guarantees that no person will be denied life, liberty or property without due process.

To analyze court:
* First decides whether a person’s life, liberty (constitutional freedom) or property (an entitlement not fulfilled like welfare or SSI benefits) was taken.
* Then court determines what process was due before deprevation.

Determining what process was due is a blancing test with these factors:
* importance of private interests affected
* risk of error under current procedures and value of additonal procedures
* improtance of state interests and the burdens on the government that would arise from the additonal safeguards.

Note: Procedural due process requires notice and an unbiased hearing.

Question 20

Equal Protection Clause
(14th Amendment)

HIGH

Answer 20

Equal Protection Clause prohibits gov from denying citizens equal protection of the laws.

In order to be discriminatory, one of the following must be shown:
* law is discriminatory on its face
* law is neutral but is applied in a discrimnatory manner OR
* there is discrimanatory motive

Question 21

Equal Protection Clause - Categories

HIGH

Answer 21

When gov makes laws putting people into categores, constiutionality considered using three levels of scrutiny:
* Strict: Could will apply strict scrutiny when (i) a classification is based on a suspect class (race, national origin, or alienage) OR when the law infringes on a fundamental right for a class of people. Government must show classification is necessary to serve a compelling government interest.
* Intermediate Scrutiny: When a classification is based on a quasi-supsect class (gender/sex, nonmarital children, sexual orientation/gender), court will appy. Government must show that the classification is substantially related to an important government interest.
* Rational Basis: For all other classes, court will apply rational basis test. Plaintiff must show the classification is not rationally related to any legitimate government interest. Conceivable interest okay even if not actual.

Note: Alienage only a suspect class when state is involved. A state may limit a non-ciizen’s participation in a government function, which is subject to rational basis review.

Note: State may treat men/women different if state can demonstrate: justification for seperate treatment AND facilities are substantially equivalent.

Question 22

Takings Clause
(5th Amendment)

HIGH

Answer 22

Under the Takings Clause, the government may take private property for public use if it provides just compensation.

Public Use: Rationally relatedto a conceivable public purpose. (Public safety, aesthetic values, etc).

Just compensation: Measured by fair market value of property to owner at the time of the taking (no relocation costs.

Per Se Taking: When gov physically takes property (even just a portion). Must be permanent.

Regulatory Taking: See Other Card.

Question 23

Takings Clause - Regulatory Taking
(5th Amendment)

HIGH

Answer 23

Three types of regulatory takings:
* Depriving Owner of all economically viable use: Occurs when a regulation completely deprives an owner of all economically beneficial use of their property.
* Penn-Central Taking: Court determines regulatory taking by balancing private and community interests under Penn Central factors: (i) economic impact of regulation on claimant; (ii) extent of interference with investment-backed expectation of use for the property AND (iii) character of the governmental action. Gov has upheld where concluded that health and general welfare promoted by prohibitin particular uses.
* Land Use Exaction: Conditions placed on the approval of permits do not constitute a taking if: (i) there is a nexus between the state interest and the permit condition (exaction) AND (ii) gov makes an individualized determination that condition is roughly proportional to advancing state interest

Question 24

Privileges and Immunities Clause
(Article IV, ection 2)

MED

Answer 24

States may not intentionally discriminate against non-residents concerning:
* Civil liberties (right to vote, to travel interstate) OR
* Importan economic activities (ability to earn a livlihood)

UNLESS state is justidifed for discrimination where:
* there is a substantial reason for the difference in treatment AND
* discriminatory law has a substantial relationship to that reason.

Privileges and immunities clause does not protect alients or corporations from discrimination.

Question 25

Establishment Clause
(1st Amendment)

Answer 25

The Establishment clause prohibits the government from establishing a religion or endorsing/supporting religion.

Laws that discriminate against a religion must satify strict scrutiny: Government must show the law is narrowly tailored to achieve a compelling government interst and that the least restrictive means was used.

Question 26

Free Exercise Clause
(1st Amendment)

MED

Answer 26

The Free Exercise Clause prohibis the government from interfering with the exercise of religion.

Laws designed to intefere with religion must meet strict scrutiny. Government must show that the law is narrowly tailored to achieve a compelling government interest and the least restrictive means was used.

Note: Laws of general applicability that cause unintentional burdens on religion are constitutional and do not offend the Free Exercise Clause.

Question 27

Defamation
(Prima Facie)

MED

Answer 27

Prima facie case of defamation:
* a false defamatory statement; tending to harm the reputation of another
* of and concerning the plaintiff made by the defendant
* publication by the defendant to a 3rd party AND
* damages

Heightened standard for public official/figure: Also have to prove actual malice - that defendant spoke with either recklessness as to the truth of the statement OR with knowledge of its falsity

Note: Proof of negligence is insufficient (for public official/figure)

Note: If plaintiff is a private figure speaking about a matter of public concern, plaintiff must also prove speaker was negligent.

Question 28

Freedom of the Press
(1st Amendment)

MED

Answer 28

Press protected from liablity when publishing:
* truthful private facts
* on a matter of public concern
* where such information is legally obtained AND
* there is no knowledge that any information was obtained illegally

Note: photo taken in pbulic place is likely not a private fact
Note: Does not protect press from liablity for violating generally applicable laws, even if reduce ability to report news.

Question 29

Content Based Restrictions
(Freedom of Speech)

HIGH

Answer 29

Government regulations regarding content of protected speech (subject matter or viewpoint) must satisfy strict scrutiny.

Government must show:
* that regulation is narrowly tailored to achieve a compelling government interest AND
* gov has used least restrictive means to accomplish its purpose

Question 30

Content Neutral Restrictions
(Freedom of Speech)

HIGH

Answer 30

Government may regulate the time place and manner of content-neutral speech if the regulation satisfies intermediate scrutiny.

Government must show that regulation
* is narrowly tailored to achieve a significant government interest AND
* leaves open alternative channels of communication

Note: traffic safety and aesthetic preservation have been deemed to be substantial government interests.

Question 31

1st Amendment - Freedom of Speech
(Generally)

HIGH

Answer 31

The 1st Amendment protects the right to freedom of speec hand expressive activities that contitute speech.

Applicable to state and local governments.

Question 32

Public Forum
(Freedom of Speech)

HIGH

Answer 32

Conduct of speec hand assembly in public spaces can be regulated by government depending on the type of forum.

A public forum is one that has traditionally been available to the public for free speech. (sidewalks, parks, streets)

Content Based: Gov cannot rgulate speech in public forums based on content unless it satisfies strict scrutiny (gov must show reg is narrowly tailored to achieve compelling gov interest AND gov used least restrictive means to accomplish its purpose)

Content Neutral: Government mayh regulate time,place and manner of content-neutral speech in public forum if regulation satisfies intermediate scrutiny. (gov must show regulations is narrowly tailored to achieve a significant gov interest AND leaves open alternative channels of communication. Regulation does not need to be least restrictive means.

Note: Citing littering as gov interest doesn’t work.

Note: In a public forum, religious speech is treated equal to non-religious speech; content -neutral access rules do not violate the Establishment Clause.

Question 33

Designated Public Forum
(Freedom of Speech)

HIGH

Answer 33

A designated public forum is one that has not traditionally been available to the public for free speeech, but that the government chooses to make available (ex: school makes room avilable for club meeting).

Designated public forums are treated the same as pbulic forums.

Note: Government is able to remove designation at any time.

Question 34

Limited Public Forums
(Freedome of Speech)

HIGH

Answer 34

Limited public forums are non-public forums that have been specifically designated by the government as open to certain groups or topics (ex municipal meeting rooms).

Limited public forums are treated the same as non-public forums.

Note: If a school opens itself as a limited public forum, then it can’t deny access based upon religious content of speech.

Question 35

Non-Public Forums
(Freedom of Speech)

High

Answer 35

Non-public forums are other public places that have traditionally been limited for free speech (schools military bases, jailes, inside of courthouses and airports).

Government may regulate speec hin non-public forums if the regulations is:
* Reasonable AND
* viewpoint neutral

Question 36

Private Property
(Freedom of Speech)

HIGH

Answer 36

Generally, a person does not have right to access another’s private property (ex, shopping center) to deliver free speech or expressive conduct.

Question 37

Licensing Requirements
(Freedom of Speech)

HIGH

Answer 37

Licensing rquirements are permitted if:
* government has an important reason for licensing
* specific,articulated standards used to grant the licenses (to remove licensing body discretion) AND
* procedural safeguards are in place, incuding assuring a final decision when license is denied

Question 38

Fighting Words
(Unprotected Speech)

MED

Answer 38

1st Amendment does not protect fighting words or true threats.

Fighting words are words that:
* inflict injury OR
* tend to incite an immediate breach of peace (must be likely to cause a violent reaction from others)

Note: Laws that punish offensive, rude type speech have been deemed unconstitutional as overbroad or vague.

Question 39

Obscenity
(Unprotected Speech)

MED

Answer 39

Obscenity is not protected under 1st Amendment.

Material is obscene when:
* it appeals to the prurient interest (sexual) of an average person applying today’s community standards
* it is patently offensive under the law prohibiting obscenity AND
* it lacks any serious artistic, literary or scientific value based on national standard

Mere private possession of obscene material (other than child pornography) by an adult inside the home cannot be made criminal.

Question 40

Regulation of Commercial Speech
(Freedom of Speech)

MED

Answer 40

Government may regulate truthful, non-misleading commercial speech if the regulation:
* directly advances
* substantial government interest AND
* it is no more extensive than necessary to serve that interest

False or misleading commercial speec his not protected.

Question 41

Public School Students
(Freedom of Speech)

MED

Answer 41

Public school students do not lose their 1st amendment rights to freedom of speech when they step onto school property, but schools are given a greater latitude to regulate speech by a student or teacher.

School must prove that conduct would materially and substantially intefere with the operation of the school.

Question 42

Government Employee
(Freedom of Speech)

MED

Answer 42

For a gov employee’s speech to be protected under 1st Amendment employee must have spoken:
* as a citizen AND
* on a matter of public concern (must relate to any mattter of political, social or other concern to the community).

If both are met, then questions is whether gov entity had an adequate justification for treating the mpoyee differently from any other member of the public.

An employee’s statements made pursuant to their official duties are not protected.

Question 43

Prior Restraint on Speech
(Freedom of Speech)

MED

Answer 43

Occur when gov attempts to prohibit speech before it happens through a court order or licensing requirement.

Prior restraints are generally disfavored and unconstitutional.

Court orders for prior restraint must satisfy strict scrutiny (compelling gov interest, narrowly tailored, least restrictive means).

Question 44

Vague and Overbroad Laws
(Freedom of Speech)

MED

Answer 44

Laws that are unduly vague or overbroad are unconstitutional.

• A statute is unduly vague if it does not put the public on reasonable notice as to what is prohibited.
• A statute is overbroad if it regulates more speech than is constitutionally permitted.

A defendant cannot be convicted under a law that is deemed overbroad or vague, even if speech falls iwthin an unprotecgted category.

Question 45

Freedom of Speech for Corporations and Unions

MED

Answer 45

Corporations and Unions are entitled to political speech, as a fundamental right.

Supreme Court has held that corporations and unions have a right to engage in political expenditures under the 1st amendment.

A government cannot suppress political speech based on the speaker’s corporate identity.

Question 46

Bill of Attaindder

MBE

Answer 46

A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon individuals who are designated either by name or in terms of past conduct.

Both federal and state governments are prohibited from passing bills of attainder.

A statute barring particular individuals from government employment qualified as punishment within the meaning of the constitutional provision prohibiting bills of attainder.

Question 47

Speech and Debate Clause

MBE

Answer 47

The Speec hand Debate clause shields members of Congress from (i) civil or criminal suits relating to their legislative actions; and (ii) grand jury investigations relating to those actions. There is no requirement that the speech be germane to pending legislative business.

The immunity extends to aides who engage in acts that would be immune if performed by a legislator.

Conduct that occurs in the regular course of the legislative process and the motiviation behind that conduct are immune from prosecution.

Question 48

Apellate Jurisdiction of SCOTUS

MBE

Answer 48

The US Supreme Court may determine whether a state court has reached a decision that is not in conformity with the Constitution, but it may not review state court decisions that merely adjudicate questions of state law because the Court’s review of state court judgments is limited to questions of federal law.

Evben if there is a federal question in the state court case, the Court may nto review it if there is an “independent and adequate” state ground for the state court’s decision.