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Con Law Flashcards

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1
Q

Sovereign immunity (11th amdt) is not a defense to…?

A
  1. When state has waived it
  2. Pursuant to federal laws adopted under section 5 of 14th amdt.
  3. When federal govt sues state govt
  4. Bankruptcy proceedings
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2
Q

Lower federal courts may NOT review:

A
  1. Suits against state governments

2. Pending state court proceedings (abstention)

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3
Q

Is senate approval require for:

  1. Treaties?
  2. Executive agreements
A
  1. Treaty = yes

2. Ex agreement= no

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4
Q

Rational basis test …
Does it require a least restrictive alternative analysis?
Who has the burden of proof?

A

Means- Rationally related
Ends - legitimate conceivable purpose

NO least restrictive alternative analysis

Challenger carries burden of proof

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5
Q

Intermediate scrutiny test …
Does it require a least restrictive alternative analysis?
Who has the burden of proof?

A

Substantially related to an important actual purpose

NO least restrictive alternative analysis

Government carries burden of proof

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6
Q

Strict scrutiny…
Does it require a least restrictive alternative analysis?
Who has the burden of proof?

A

Necessary and compelling actual purpose
MUST DO LEAST RESTRICTIVE ALTERNATIVE ANALYSIS

Government carries burden of proof

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7
Q

What are the 4 justiciability doctrines?

A
  1. Standing
  2. Ripeness
  3. mootness
  4. Political question
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8
Q

What are the elements of Standing?

A
  1. Injury- has been personally injured or imminently will be.
    A) personally suffered
    B) likelihood of future harm (injunctive or declaratory relief)
  2. Causation
  3. Redressability
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9
Q

What are the exceptions to the general rule that there is no 3rd party Standing to sue?

A
  1. If there is a close relationship between the plaintiff and the injured third party
  2. If the injured third-party is unlikely to be able to assert his or her own rights.
  3. An organization may see you for its members if:
    • members would have standing to sue
    • the interests are germane to the organization’s purpose
    • neither the claim nor relief requires participation of individual members
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10
Q

The plaintiff CANNOT sue solely as a citizen or as a tax payer interested in having the government follow the law because of what rule?

A

No generalized grievances

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11
Q

What is the only exception to the no generalized grievances rule of standing to sue?

A

Taxpayers have standing to challenge government expenditures pursuant to federal (or state or local) statutes as violating the establishment clause.

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12
Q

When you see a request for a declaratory judgment in the question, which justiciability doctrine should you think of?

A

Ripeness

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13
Q

Ripeness is a question of whether a federal court may do what?

A

Grant pre-enforcement review of a statute or regulation.

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14
Q

Ripeness elements are:

A
  1. The hardship will the suffered without pre-enforcement review
  2. The fitness of the issues and the record for judicial review
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15
Q

What are the exceptions to the mootness doctrine?

A
  1. Wrong capable of repetition but evading review- like pregnancy
  2. If defendant voluntarily halts offending conduct bus is free to resume it at any time.
  3. Class action suits - just needs 1 member to have ongoing injury
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16
Q

What are the 4 examples of cases that would be dismissed as non-justiciable political questions?

A
  1. Arising under the republican form of government clause (art 4)
  2. Challenges to the president’s conduct of foreign policy
  3. Challenges to the impeachment and removal process
  4. Challenges to partisan gerrymandering (drawing districts that favor the majority party)
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17
Q

Can federal courts and state courts hear suits against state governments?

A

No.

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18
Q

The principle of sovereign immunity does what?

A

Bars suits against states in federal and state courts under the 11th amendment

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19
Q

Can Congress authorized suits against states under other constitutional provisions other then section 5 of the 14th amendment?

A

No. But states MAY be sued under federal laws adopted under section 5 of the 14th amdt. – exception to the sovereign immunity rule

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20
Q

Can a state officer be sued for :

  1. Injunctive relief?
  2. Money damages to be paid out of their own pockets?
A

Yes to both.

But NOT if the state treasury will be paying retroactive damages.

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21
Q

What is the level of scrutiny? - Equal protection claim based on race.

A

Strict : law must be necessary to achieve a compelling government purpose

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22
Q

What is the level of scrutiny? - Equal protection claim based on national origin.

A

Strict - law must be necessary to achieve a compelling government interest.

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23
Q

What is the level of scrutiny? - Equal protection claim based on alienage

A

Generally, strict scrutiny: law must be necessary to achieve a compelling government purpose.

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24
Q

What is the level of scrutiny? - Equal protection claim based on gender.

A

Intermediate scrutiny: law must be substantially related to an important government purpose.

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25
Q

What is the level of scrutiny? - Equal protection claim based on illegitimacy

A

Intermediate scrutiny: law must be substantially related to an important government purpose .

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26
Q

What is the level of scrutiny? - Equal protection claim based on undocumented alien children

A

Intermediate scrutiny : la must be substantially related to an important government purpose.

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27
Q

What is the level of scrutiny? - Equal protection claim based on alienage classification related to self government and the democratic process

A

Rational basis test: law must be rationally related to a legitimate government interest

28
Q

What is the level of scrutiny? - Equal protection claim based on congressional regulation of aliens

A

Rational basis test: law must be rationally related to a legitimate government interest

29
Q

What is the level of scrutiny? - Equal protection claim based on age

A

Rational basis test: law must be rationally related to a legitimate government interest

30
Q

What is the level of scrutiny? - Equal protection claim based on disability

A

Rational basis test :law must be rationally related to a legitimate government interest

31
Q

What is the level of scrutiny? - Equal protection claim based on wealth

A

Rational basis test : law must be rationally related to a legitimate government interest

32
Q

Equal protection analysis steps:

A
  1. What is the classification?
    - on face of law
    - or discriminatory intent AND discriminatory impact
  2. What is the level of scrutiny?
  3. Does the law meet the level of scrutiny?
33
Q

What is the Ex Post Facto clause?

A

The Ex Post Facto clause prohibits legislation that retroactively alters the criminal law in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for some past activity.

34
Q

The contract clause______

A

The contract clause places limits on state legislation that retroactively impairs contract rights.

35
Q

A bill of attainder______

A

A bill of attainder is a legislative act that punishes an individual who is identified either by name or in terms of past conduct without a judicial trial. It is constitutionally prohibited.

36
Q

Who does the contract claus apply to?

A

Only states!!!

37
Q

State the relation back rule for claims.

A

Amended pleadings (claims) “Relate back” if they concern the same conduct, transaction or occurrence as the original pleading and therefore treat the amended pleading as though it was filed when the original was filed so it can avoid the statute of limitations problem.

38
Q

What if you want to change defendant after the statue has run?

A

If P sues wrong D first but the right D KNEW ABOUT IT, then…
Including a new defendant will “relate back” if”
1. it concerns the same conduct, transaction or occurance as the original;
2. the new party knew of THIS case within 120 days of filing AND
3. D also knew that but for a mistake, D would have been named originally.

39
Q

What is the purpose of a Rule 11 sanction?

A

To deter not to punish.

40
Q

When, under R. 11 documents are signed, the signee certifies that to the best of her knowledge and belief, after reasonable inquiry…

A
  1. the paper is not for an improper purpose
  2. the legal contentions are warranted by law (nonfrivolous) and
  3. the factual contentions and denials of factual contentions have evidentiary support.
41
Q

Safe Harbor rule —

A

If other party violates R. 11, you CANNOT make a motion for sanction immediately, you serve the motion on the other party but cannot file it for 21 days within which the other party has time to fix the problem and avoid sanctions.

42
Q

Required disclosures include:

A
  1. intitial disclosures
    a) identies of persons you may use to support your case
    b) documents and things you may use to support your case.
    c) computation of monetary relief and documents/ESI supporting it.
    d) insurance coverage - D must disclose any insurance that might cover all or part of the judgment in the case
  2. Expert witnesses (at a time directed by the court)
  3. Pretrial required disclosures
43
Q

Interrogatories -
Who can you send them to?
How long do they have to respond?
Can you answer “Idk”?

A

Can only send to parties.
Have 30 days from service of them to respond
Must answer from information reasonably available to you.

44
Q

Definition of “relevant” in scope of discovery context

A

“reasonably calculated to lead to the discovery of admissible evidence.”

45
Q

Who is a “necessary” party to join the case?

A
  1. Without A the court cannot accord complete relief among existing parties OR
  2. A’s interest may be harmed if he is not joined OR
  3. A claims an interest that subjects a party (usually D) to risk of multiple obligations.
    A JOINT TORTFEASOR IS NEVER EVER “NECESSARY”
46
Q

Factors for co-parties being appropriate

A
  1. Claims arise from same t/o

2. raise at least 1 common question

47
Q

Impleader is a what?

What is the time frame for impleading?

A

3rd party defendant being brought in by the D.

There is a right to implead within 14 days of serving your answer. After that, need court permission.

48
Q

Initial 4 requirements for a class action

A 
Numerosity - too many class members for practicable joinder 
Commonality - some issue in common to all class members so resolution will generate answers for everyone in one stroke. 
Typicality - Re's claims are typical of those of the class AND
Representative adequate - class rep will fairly and adequately represent the class.
49
Q

Once a class meets the initial 4 requirements for a class action, what categories must it find to fit into?

A

Then must fit within one of these:

  1. Prejudice
  2. Class seeks injunction or declaratory jgmt because D treated class alike (emplymt discrim – can’t seek damages)
  3. Damages
    1. common question predominates over individual question AND
    2. class action is the superior method to handle the dispute. (mass tort)
50
Q

Rule for when Ex parte temporary restraining order is proper:

A

Applicant files a paper under oath clearly showing that if the TRO is not issued, he will suffer immediate and irreparable harm if he must wait until other side heard.
And applicant’s lawyer certifies in writing his efforts to give oral or written notice to D/D’s lawyer or why such notice should not be required here.

51
Q

How can you “get” a default judgment?

A

The clerk of the court can enter it if all of following are true:
1. D made no response at all
2. The claim itself is for a sum certain in money
3. Claimant gives an affidavit of the sum owed and
4. D is not a minor or incompetent.
IF one is false, then P must apply to the court itself for judgment.

52
Q

Motion to dismiss for failure to state a claim - rule # and explain

A

FRCP 12(b)(6) - Court looks only at P’s allegations of FACT in the complaint and asks if these facts were true, would P win a judgment? IF no, dismiss because those facts do not support a legally recognized claim.

53
Q

Factors to show summary judgment is necessary:

A
  1. there is no genuine issue of a material fact and
  2. that movant is entitled to judgment as a matter of law.
    - The court may look to evidence, and may also give partial summary jgmt to one/ few of the claims.
54
Q

What if a case involves both law and equity? Do we have a jury trial or not?

A

The jury decides the facts underlying the damage claim but not the equity claim. (7th amdt right to jury trial does Not apply to suits in equity).

55
Q

How do you demand a jury trial in a civil case?

A

In writing no later than 14 days after service of the last pleading raising jury triable issues.

56
Q

Which are ok in state court? federal court?
Remittitur
Additur

A

Remittitur - hardball w/ P is okay in both state and fed

Additur - hardball with D is okay in state but NOT okay in federal court.

57
Q

Requirements for valid claim preclusion (Res judicata)

A
  1. the 2 cases were brought by same P and D.
  2. the first case ended with a valid final judgment on the merits.
  3. the 2 cases assert the same claim.
58
Q

Issue preclusion (collateral estoppel) requirements

A
  1. First case ended in a valid, final judgment on the merits
  2. The same issue was actually litigated and determined in first case.
  3. the issue was essential to the judgment in first case.
59
Q

General verdict -

Special verdict -

A

General - jury finds for P or D and determines damages or relief. It is assumed that all essential issues were found in favor of prevailing party.
Special verdict- jury receives a series of questions regarding each ultimate fact, then the court makes a legal conclusion based on those facts.

60
Q

A new trial may be granted where the verdict is:

A

excessive, inadequate, or against the weight of the evidence. Or because of an error during the trial, or jury misconduct.

61
Q

To be relieved from a judgment where the court had PJD but the D didn’t know about the suit, what does D have to show?

A
  1. reasons justifying the relief (from the judgment) and

2. that innocent 3rd persons will not be prejudiced by granting relief.

62
Q

How does SCOTUS define obscenity?

A

It is not protected speech under teh 1st amdt. “a description or depiction of sexual conduct that taken as a whole, by the average person, applying contemporary community standards, appeals to the prurient interest in sex, portrays sex in a patently offensive way and using a national reasonable person standard does not have serious literary, artistic, political or scientific value.

63
Q

Congresses’ power to investigate is limited to ___

A

matters on which it can legislate.

64
Q

A municipality may use zoning to limit the location of adult theaters and nude dancing establishments as long as :

A

1) the ordinance is designed to promote important government interests (ex eliminate 2ndary effects)
2) does not prohibit all such entertainment in the community
This type of speech is marginally protected.

65
Q

Does the fundamental right to travel from state to state apply as a limit to the federal government?

A

No. Just to states.

66
Q

If a govt employer seeks to fire an employee for speech-related conduct when the speech involved a matter of public concern but is not made pursuant to her official duties, how do the courts approach this?

A

They must carefully balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interests as an employer in the efficient performance of public service.

Con Law (1 decks)

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