Con Law

Question 1

Standing

Answer 1

Injury in fact (concrete and particularized, actual or imminent),
Causation (fairly traceable to D’s conduct),
Redressability (relief likely to prevent/redress injury).

Question 2

Taxpayer standing sufficient for….

Answer 2

challenging one’s tax liability, and

challenge gvmt expenditures as violating establishment clause

Question 3

Commerce Clause Power

Answer 3

Congress can regulate....
Channels and
Instrumentalities of 
Interstate commerce, including
Any activity that substantially affects interstate commerce

Question 4

Aggregating effect of activity for commerce clause purposes

Answer 4

Even if an intrastate activity does not directly affect interstate commerce, Congres can regulate so long as Congress has a
RATIONAL BASIS to conclude that
the TOTAL INCIDENCE of activity in the AGGREGATE
SUBSTANTIALLY AFFECTS interstate commerce.

Question 5

Tax and spend power

Answer 5

Congress can tax if it has reasonable relationship to revenue production
Congress can spend on general welfare and impose conditions on funding

Question 6

14th Amdt Enabling Clause

Answer 6

Enables Congress to enforce equal protection and due process rights, but enforcement must have “congruence and proportionality” between injury to be prevented and means adopted to achieve that end.

Question 7

Dormant Commerce Clause

Answer 7

State REGULATION burdening interstate commerce not OK if discriminatory or undue burden.

• Discriminatory: FACIALLY DISCRIMINATORY regulation OK only if NECESSARY to achieve IMPORTANT NON-ECONOMIC GVMT interest;
• Undue burden: Undue burdens on interstate commerce must be RATIONALLY RELATED to LEGITIMATE GVMT INTEREST, and BURDEN on commerce must be outweighed by BENEFITS TO THE STATE.
• Exceptions: Gvmt as market participant and congressional consent.

Question 8

Privileges and Immunities of Art. IV.

Answer 8

States and localities may not discriminate against a non-local citizen (natural person) from exercising rights fundamental to national unity, e.g., practicing one’s chosen profession, without meeting strict scrutiny.

Question 9

Contracts Clause

Answer 9

Restricts state governments from retroactively and substantially impairing existing contracts.
Public contracts: Intermediate scrutiny.
Privacte contracts: Rational basis.

Question 10

Free Exercise Clause

Answer 10

Burden on religion OK if:

A law of general applicability
That does not intentionally burden religious beliefs, and
Advances important public interest

Question 11

Establishment Clause

Answer 11

Prohibits laws respecting the establishment of religion. The government can’t endorse or favor specific religious groups.

• Facial sect preference: Strict scrutiny applies
• No Sect Preference: Lemon test (secular purpose, primary secular effect, does not foster excessive government entanglement w religion)

Question 12

Freedom of speech - content-based restrictions

Answer 12

Strict scrutiny

Question 13

Unprotected Speech - Obscenity

Answer 13

Obscenity - Describes or depicts sexual conduct that, taken as a whole, by the average person, (1) appeals to the prurient interest in sex (community standard, (2) is patently offensive (community standard), (3) lacks serious literary, artistic, political, or scientific value (national standard).

Question 14

Unprotected speech - Imminent lawless action

Answer 14

Government can ban speech (1) intended to incite or produce imminent lawless action and (2) likely to do so.

Question 15

Unprotected speech - Fighting words

Answer 15

Government can ban speech likely to cause the listener to commit an act of violence.

Question 16

Freedom of speech - content-neutral restrictions

Answer 16

Public forums, limited public forms,m and designated public forums: Intermediate review (sig gvmt interest + narrowly tailored) + leave open alternative channels of communication.

Non-public forums: Rationale basis (reasonably related to a legitimate gvmt interest) + leave open alternative channels of communication.

Question 17

Regulation of Commercial Speech

Answer 17

Only if regulation (1) directly advances a (2) substantial government interest, and (3) is reasonably tailored to serve that interest. (4) False or misleading commercial speech may be regulated.

Question 18

Regulation of Symbolic Speech

Answer 18

OK if the regulation

(1) is content-neutral,
(2) meets intermediate scrutiny (furthers important gvmtl interest), and
(3) prohibits no more speech than necessary.

Question 19

Limitations on Free Speech Regulations

Answer 19

Unfettered discretion – fails to set forth narrow or specific grounds for denying a permit, or where the permit mechanism is not closely tailored to the regulation’s objective.
Vagueness–so unclear that reasonable person would have to guess as to meaning.
Overbreadth: Bans both protected and unprotected speech.

Question 20

Prior restraint

Answer 20

Presumptively unconstitutional– gvmt must show (1) likelihood of irreparable or serious harm to the public, (2) narrowly drawn standards, and (3) final determination on validity of restraint.

Question 21

Free speech checklist

Answer 21

State action?
Content-based or content-neutral.
Vagueness, Overbreadth, Unfettered Discretion
Prior Restraint

Question 22

Substantive due process - strict scrutiny applies when….

Answer 22

affecting fundamental rights, e.g., relating to marriage, living with one’s family, child bearing, and child rearing.

Question 23

Freedom of association

Answer 23

An individual has a right to freely associate with other individuals in groups.

• Only applies to freedoms protected by the First Amendment (speech, religion), and not all groups.
• Restrictions must meet strict scrutiny.

Question 24

Equal Protection - Suspect Classifications

Answer 24

Race, national origin, state alienage

Question 25

Equal protection - Quasi-suspect classification

Answer 25

Gender and illegitimacy

Question 26

Equal protection clause requires strict scrutiny analysis of any burden on the following fundamental rights

Answer 26

Voting in state and local elections
Being a political candidate
Having access to the courts
Migrating from state to state

Question 27

Approach to EPC questions

Answer 27

State Action
Type of classification, and corresponding level of review. Apply multiple levels of review if not sure.
For suspect and quasi-suspect classifications, government must show that it is intentionally discriminating….

Question 28

Takings clause - non- per se takings

Answer 28

To determine if a regulatory action is a taking, court will consider (1) economic impact on claimant, (2) extent to which it has interfered with investment-backed expectations, and (3) character of the government action.

Question 29

Procedural Due Process

Answer 29

Weigh: nature of private interest, risk of mistaken action and relative cost of mitigating measures, and government interest in efficiency.

Question 30

State action by private actor….

Answer 30

private actor performing traditionally public function, OR state heavily involved in the activity by commanding, encouraging, or being entangled in it.

Question 31

Does procedural due process require waiver of court fees for indigent person?

Answer 31

Only if fees will deny fundamental right.

Question 32

14th Amdt Privileges and Immunities

Answer 32

Applies to natural person citizens only. Protects against infringement on privileges and immunities of national citizenship. Right to travel interstate, vote for national offices, enter public lands, peaceably assemble.

Question 33

Deprivation of public employment based on political association is allowed if

Answer 33

(1) person is an active member, (2) person knows of the organization’s illegal activity, (3) person has specific intent to further those illegal objectives.

Question 34

Zoning ordinances

Answer 34

Rational basis test, but existing user w/ property interest (fee simple, leaseholder) can seek variance if UNDUE BURDEN.

Question 35

Nonpublic forum

Answer 35

If the forum is non-public, then the regulation must be viewpoint-neutral and reasonably related to a legitimate governmental interest.

Question 36

Regulatory Taking

Answer 36

Court will assess three factors:

(1) Economic impact of the government action on the owner,
(2) Extent to which it frustrates investment-backed expectations,
(3) Character of the regulation (e.g.,the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property)