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Bar Review > Con Law > Flashcards

Con Law Flashcards

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1
Q

What are the requirements for standing?

A

Have to show injury- either already or imminent.
Show likelihood of future harm.
Show that D caused injury and that decision will remedy it.
No 3rd party standing unless exceptions
No generalized grievances. Not just a citizen or taxpayer, except for Establishment Clause.

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2
Q

What are the 2 factors considered in ripeness?

A

Hardship that has been or will imminently be had.

Fitness of the subject for adjudication.

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3
Q

What are the exceptions for mootness?

A

Wrong can be repeated but will keep evading review. (Roe v. Wade.)
Defendant quits action but can start again at any time.
Class action- so long as one member has standing, it can’t be dismissed.

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4
Q

What are the political questions that the court will not adjudicate?

A

Republican form of government.
Challenges to the president’s conduct of foreign policy.
Challenges to the impeachment and removal process.
Challenges to partisan gerrymandering.

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5
Q

What kinds of cases must go to the Supreme Court on writ of certiorari?

A

All state court cases

All US Court of Appeals cases

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6
Q

What are the requirements to get a case before the Supreme Court?

A

Standing
Ripeness
Mootness
Political Question

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7
Q

What kind of case can bypass the Court of Appeals and go straight to the Supreme Court with no requirement of cert?

A

Appeals that are for decisions made by a 3 judge federal district court.

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8
Q

For what types of cases does the Supreme Court have original and exclusive jurisdiction?

A

Suits between state governments.

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9
Q

What is express preemption?

A

A federal law may expressly provide that the states may not adopt laws concerning the subject matter of the federal legislation. This is narrowly construed.

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10
Q

What is implied preemption?

A

Even if federal law does not expressly prohibit state action, state laws will nevertheless be held impliedly preempted if they actually conflict with federal requirements, they prevent achievement of federal objectives, or Congress has preempted the entire field.

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11
Q

What is the test for rational basis?

A

Must be rationally related to a legitimate government interest.

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12
Q

Who has the burden of proof for rational basis?

A

Whoever is trying to overturn it.

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13
Q

What is the test for intermediate scrutiny?

A

Substantially related to an important government interest.

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14
Q

When is intermediate scrutiny triggered?

A

Gender, illegitimacy, commercial speech, content neutral time/place/manner regulations, symbolic speech, and cable TV.

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15
Q

What is the test for strict scrutiny?

A

Must be necessary to further a compelling state interest.

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16
Q

Who has the burden of proof in intermediate scrutiny?

A

The state.

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17
Q

Who has the burden of proof in strict scrutiny?

A

The state.

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18
Q

When is strict scrutiny triggered?

A

Protected 1st Amendment claims
Suspect Class
Fundamental Rights

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19
Q

What are the suspect classes?

A

Race
Alienage
National Origin

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20
Q

What has Congress established as fundamental rights?

A

Right to vote, travel, and privacy

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21
Q

What are the rights protected under privacy?

A 
Contraception
Abortion (but this is undue burden)
Marriage
Procreation
Education (private)
Relations (family)
Sexual conduct (in a non-commercial, private setting)
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22
Q

What level of scrutiny will gender discrimination receive?

A

Intermediate scrutiny–Substantially related to an important government interest.

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23
Q

What level of scrutiny will a challenge to marriage receive?

A

Strict scrutiny–Necessary to further a compelling government interest.

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24
Q

What domestic authority powers does the President have?

A

Appoint high level officers with Senate approval
Pardon federal offenses
Veto bills

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25
Q

What power does the President have over External Affairs?

A

Can act militarily but cannot declare war.
Represents the US in foreign relations
Enter into treaties with 2/3 Senate approval.

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26
Q

If a treaty conflicts with federal law, which prevails?

A

The last in time prevails

27
Q

For Congress to impose a new tax, what is required?

A

It must bear some reasonable relationship to revenue production or be w/in Congress’s regulatory power.

28
Q

For Congress to exercise its spending powers, what is the requirement?

A

The spending must be based on the general welfare.

29
Q

When can Congress regulate intrastate using the Commerce Clause

A

Channels of interstate commerce
Instrumentalties of interstate commerce
Economic activity where there is a substantial effect on interstate commerce in the aggregate.

30
Q

When can the Dormant Commerce Clause be used?

A

If Congress has not regulated, then the state can regulate local aspects of interstate commerce IF:
The law does not discriminate against interstate commerce OR
Unduly burden interstate commerce
BUT remember the exceptions!

31
Q

What are the exceptions to the Dormant Commerce Clause?

A

Necessary to Important State Interest
State as Market Participant
Favoring Government Performing Traditional Government Functions

32
Q

What is the balancing test for procedural due process?

A
  1. Importance of the interest to the individual.
  2. The ability of additional procedures to increase the accuracy of the fact-finding.
  3. The government’s interest.
33
Q

Before welfare benefits can be terminated, what kind of notice is required?

A

Must be notice in the hearing. Before can be cut off.

34
Q

Before SSI disability benefits are terminated, what hearing is required?

A

Only post termination hearing.

35
Q

What level of scrutiny must content based restrictions meet?

A

Strict scrutiny

36
Q

What are the two types of content neutral restrictions on speech?

A

Subject matter restriction

Viewpoint restrictions

37
Q

What level of scrutiny must content neutral restrictions on speech meet?

A

Intermediate scrutiny

38
Q

What level of scrutiny must court orders suppressing speech meet (prior restraints)?

A

Strict scrutiny

39
Q

When is a law considered constitutionally vague?

A

If a reasonable person cannot tell what speech is prohibited and what is allowed.

40
Q

When is a law unconstitutionally overbroad?

A

If it regulates substantially more speech than the constitution allows to be regulated.

41
Q

When can the government regulate symbolic speech?

A

If it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s purpose.

42
Q

What speech is unprotected or less protected by the First Amendment?

A

Incitement of illegal activity
Obscenity and sexually oriented speech
Commercial speech
Defamation and IIED

43
Q

Will local or national standards be used to determine the prurient interest?

A

Local standards–that which will incite lustful thoughts.

44
Q

Will a local or national standard be used to determine whether material is patently offensive under the law prohibiting obscenity?

A

Local standards

45
Q

Will a local or national standard be used to determine serious redeeming artistic, literary, political, or scientific value?

A

National standard–this is the social value.

46
Q

Is profane and indecent speech generally protected under the First Amendment?

A

Yes.

Exceptions are over broadcast media (free but not cable or internet) and in schools

47
Q

What level of scrutiny is applied to commercial speech?

A

Intermediate scrutiny.

48
Q

If the plaintiff is a public official or running for public office, what must he prove to recover for defamation?

A

Falsity of the statement and actual malice.

49
Q

If the plaintiff is a public figure, what must he prove to recover for defamation?

A

Falsity of the statement and actual malice.

50
Q

If the plaintiff is a private figure and the matter is of public concern, what must he prove to recover for defamation?

A

Falsity and negligence of the defendant.

P may recover presumed or punitive damages only by showing actual malice.

51
Q

If the plaintiff is a private figure and the matter is not of public concern, what must the plaintiff prove to recover for defamation?

A

Can recover presumed or punitive damages even without showing actual malice.

52
Q

What are considered public forums?

A

Government properties that the government is constitutionally required to make available for speech. (Sidewalks and parks, usually)

53
Q

How can the government restrict speech at public forums?

A

Regs must be subject matter and viewpoint neutral. If not, must meet strict scrutiny.

54
Q

What is the rule for the method of regulation allowed for restriction of speech at a public forum?

A

Must be time, place, or manner that serves an important government interest and leaves open adequate alternative places for communication.

55
Q

Do government regs of public forums have to be the least restrictive alternative?

A

No, but they must be narrowly tailored.

56
Q

What are designated public forums?

A

Government properties that the government could close to speech, but chooses to open. (Schools, for instance.)

57
Q

What rules apply for regulations of designated public forums?

A

Must be subject matter and viewpoint neutral (if not then must meet strict scrutiny)
Must be time, space, or manner that serves an important government interest and leaves open adequate alternative places for communication.
Don’t have to be least restrictive alternative, but must be narrowly tailored.

58
Q

What are considered non-public forums?

A

Government properties that the government constitutionally can and does close to speech. (Military bases, airports)

59
Q

What are the rules regarding regulation of speech in non-public forums?

A

Gov’t can regulate so long as it is reasonable and it’s viewpoint neutral.

60
Q

Can the Free Exercise clause be used to challenge a neutral law of general applicability?

A

No. (Ex. the peyote case. Even though it was for religious purposes, the law was upheld because it was a neutral law.)

61
Q

May the government deny benefits to individuals who quit their jobs for religious reasons?

A

No. (ex. Woman who quit job rather than work on the Saturday Sabbath. State rule for her b/c she was having to choose between income and her religion and that’s not fair.)

62
Q

What is the Lemon test?

A
  1. There must be a secular purpose for the law.
  2. The effect must be to neither advance nor inhibit religion.
  3. There must not be excessive entanglement with religion.
63
Q

What level of scrutiny is applied if the government discriminates against religious speech or among religions?

A

Strict scrutiny.

64
Q

Must religious student and community groups have the same access to school facilities as non-religious groups?

A

Yes, but otherwise gov’t sponsored religious activity in public schools is unconstitutional. (Ex. prayer, even if called “silent prayer”

Bar Review (8 decks)

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