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Utah Essay Bar Studies > Con Law > Flashcards

Con Law Flashcards

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1
Q

Con Valid Case/Contr

A

Standing
Timing
11th Amend

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2
Q

Con Standing

A

Individual
3rd Party
Taxpayer
Organizational

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3
Q

Individual Standing

A 
Injury
Actual or imminent
Traceability
Redressability
Outcome must be possible
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4
Q

Con 3rd Party Standing

A

Individual standing
Special relationship between the two
Difficult for 3rd party

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5
Q

Taxpayer Standing

A

Only for violation of Establishment

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6
Q

Org Standing

A

Members have standing
Interests related to org’s purpose
Does not require participation by org’s members

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7
Q

Con Timing to File

A

Ripeness

Mootness

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8
Q

Ripeness

A

Cannot be too speculative

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9
Q

Mootness

A

Must still be in controversy

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10
Q

Exceptions of Mootness

A

Collateral Consequence
Voluntary Cessation
Class action

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11
Q

11th Amend

A

Provides immunity to states from federal suit

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12
Q

Individual 11th Amend

A

Precludes citizens from

Suing their own state in Fed court

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13
Q

Gov’t 11th Amend

A

Precludes citizens of one state from

Suing another state in Fed court

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14
Q

Not Barred by 11th Amend

A

Actions against local gov’t
Actions by US gov’t
Bankruptcy

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15
Q

Exceptions to 11th Amend

A 
Injunctive Relief
When state official
Enjoined from enforcing state law
Damages
Only if officer pays b/c outside law
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16
Q

Con State Action

A

Must be gov’t involvement for violation of constitution

Two types: Traditional or Entanglement

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17
Q

Trad State Action

A

Elections OR private property used for public services

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18
Q

Entanglement State Action

A

Significant State Involvement:
When gov’t acts affirmatively to
Facilitate, encourage, or authorize activity
Judicial and law enforcement
Government licensing and regulation
Government subsidies
Voter initiatives permitting discrimination

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19
Q

10th Amend state powers

A

All powers not assigned to Fed go to state cannot compel states to pass laws

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20
Q

Fed Legislative Powers

A 
Commerce Clause
Taxing/Spending
War
Alienage
Enabling
Delegation 
DC
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21
Q

Commerce Clause

A

Channels: Highways, waterways
Instrumentalities: Cars, trucks
Activity that substantially affects
Intrastate:

Commercial or economic:
Rational basis
Substantial economic effect on interstate
Noncommercial or noneconomic:
Direct and substantial effect on interstate

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22
Q

Legis Taxing Power

A

Reasonable relation to revenue production
Goods exported to foreign cannot be
Taxed by Congress

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23
Q

Legis Spending Power

A

Broad power for general welfare

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24
Q

Legis War Power

A

Power to declare war and raise armed forces

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25
Q

Legis Alienage Power

A

Plenary

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26
Q

Legis Enabling Power

A

Broad authority to enact laws necessary and proper

Rationally related to enumerated power

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27
Q

Legis DC Power

A

Congress supreme authority

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28
Q

Legis Delegation Power

A

Generally no

Sometimes if intelligible principle

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29
Q

Explicit Exec Power

A

Appointment
Veto
Pardon
Military

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30
Q

Exec Appt Power

A

Officers subject to senate approval

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31
Q

Exec Veto Power

A

In its entirety
If no action by pres &
Congress in sess, law passes

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32
Q

Exec Pardon Power

A

Federal offenses

Except impeachment

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33
Q

Exec Military Power

A

Action w/out declaration of war

Can be limited by Congress

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34
Q

Inherent Exec Powers

A

Max Auth
Zone of Twilight
Lowest Ebb

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35
Q

Inherent Max Auth

A

Express or implied auth by Congress

Difficult to challenge

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36
Q

Inherent Zone of Twilight

A

No act by Congress either way

Constitutional unless usurp powers given to Congress

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37
Q

Inherent Lowest Ebb

A

Express denial from Congress
Constitutional ONLY if Congress
Act was unconstitutional

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38
Q

Judiciary Power for Fed to Review Cases

A 
Arising under the Constitution
Admiralty
Between two or more states
Between citizens of different states
Between state or its citizens and a foreign country
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39
Q

Exception to Fed Power to review Cases

A

Independent and adequate state law

Will not be heard even a Fed question

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40
Q

Express Preemption

A

Language shows intent

“Supersedes any and all state laws”

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41
Q

Preemption

A

State limitations for legislation based on Fed laws

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42
Q

Implied Preemption

A

Conflict: mutually exclusive
Impedes Fed legislative goal
Field: Congress occupy particular area of law

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43
Q

DCC

A

Commerce clause reserves to congress
Power to regulation commerce
If congress has not acted then state can regulate so long as does not discriminate or unduly burden interstate commerce

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44
Q

Req of DCC Discriminate

A

Necessary to achieve important
Non-economic gov’t interest
With no reasonable alternative

45
Q

Req of DCC Unduly burden interstate commerce

A

Rationally related to a legitimate gov’t interest

Outweighed by benefits to state

46
Q

Exceptions to DCC

A

Congressional Approval

Market Participation

47
Q

P & I

A

Prevents discrimination against non-citizens regarding fundamental right to national unity UNLESS substantial reason

Corporations and aliens not considered citizens for this

48
Q

Substantial Reason P&I

A

Peculiar source of evil
Substantially related to this evil
With no less restrictive means to solve the problem

49
Q

K Clause

A

Prevents state gov’t from passing laws retroactively AND substantially impair existing contracts

50
Q

Private K Clause

A

Reasonable and appropriate to serve significant and legitimate public purpose
If social and economic:
Must be necessary

51
Q

Public K Clause

A

Necessary to serve important public purpose

52
Q

10th Amend Commandeering

A

The Fed government cannot force the states to create laws or force states to enforce Fed laws

53
Q

First Amendment

A

Protects individual rights to free speech and is applicable to the states through the 14th amendment

54
Q

Content Based Speech

A

Regulated based on content

Requires strict scrutiny

55
Q

Strict Scrutiny

A

Narrowly tailored

Compelling gov’t interest

56
Q

Less Protected Speech

A 
Obscenity
Incitement
Fighting Words
Defamation
Commercial
57
Q

Obscenity Speech

A

Appeal to prurient interest
Patently offensive to average person
Lacks value: artistic, scientific, etc

58
Q

Incitement Speech

A

Intended to incite
Imminent lawless action
Likely to do so

59
Q

Fighting Words Speech

A

Likely to immediate breach of peace

60
Q

Commercial Speech

A

Non-deceptive/non-illegal speech
Substantial gov’t interest
Directly advances that interest
Least-restrictive method to achieve

61
Q

Content Neutral Speech

A

Aimed at something other than content
Serve significant/important gov’t interest
Narrowly tailored to that interest
Leave alternative channels of communication

62
Q

Time Place Manner Forums

A

Public
Designated
Limited
Non Public

63
Q

Public Forum

A

Generally open to public

64
Q

Designated Forum

A

Not general public but opened up for specific purpose

65
Q

Public/Designated Req

A

Subject matter and viewpoint neutral
Serve significant/important gov’ interest
Narrowly tailored
Leave open alternative channels

66
Q

Limited Forum

A

Opened for limited use by certain group

67
Q

Non Public Forum

A

Closed to public

68
Q

Non-Public/Limited Req

A

Viewpoint neutral
Serve legitimate gov’t interest
Reasonably related to interest

69
Q

Symbolic Speech

A

Within Constitutional power
Important gov’t interest
Unrelated to suppression of speech
Prohibits no more speech than necessary

70
Q

Vagueness

A

Sufficient definiteness that people understand
Does not encourage
Arbitrary or discriminatory enforcement

71
Q

Overbreadth

A 
Burdens more speech than
Necessary to protect gov’t interest
If properly regulated
Strike whole statute
If not properly regulated
Removes only category being challenged
72
Q

Prior Restraint

A

Preventing speech before it occurs only allowed if irreparable or serious harm to public
Narrowly drawn standards
Final determination on validity

73
Q

Collateral Bar Rule

A

Must comply in order to challenge

74
Q

Unfettered Discretion

A

Leaves discretion to decision maker
Not unfettered it
Narrow and specific grounds for denying
Closely tailored to regulation’s objective
Reasonable means of maintaining public order

75
Q

Types of Religious Viol

A

Free Exercise

Establishment

76
Q

Free Exercise

A

Cannot intentionally interfere with a party’s ability to exercise free religion
Requires strict scrutiny:
Narrowly tailored to achieve compelling gov’t interest

77
Q

Exception to Free Exercise

A

Does not intentionally burden religious beliefs

Advances important public interest

78
Q

RFRA Free Exercise

A

Allows challenge if substantially burden
Strict Scrutiny
Narrowly tailored to achieve
Compelling gov’t interest

79
Q

Establishment

A

Prevents endorsing or

Supporting religion

80
Q

Sect Preference Establishment

A

Strict scrutiny

81
Q

No Sect Preference

A

Lemon Test:
Secular purpose
Primary secular effect
No excessive gov’t entanglement

82
Q

Freedom of Ass’n

A

Right to freely associate

W/ individuals or groups

83
Q

Ass’n Public Job

A

Active member of group
Knows group’s illegal aims
Specific intent to further group’s illegal aims

84
Q

Compelled Ass’n

A

Compelling gov’t interest
Unrelated to suppression of free expression
Cannot be achieved by less restrictive

85
Q

Press 1st Amend

A 
No greater than public
Gag Order:
Prohibits publication about court proceedings
Subject to prior restraint
No constitutional privilege to protect sources
Broadcaster:
May be sanctioned for
Patently offensive
Sexual and excretory speech
86
Q

Due Process Method

A

Applicable to states through 14th and Fed through 5th

87
Q

Substantive DP

A

Gov’t action that infringes upon fundamental right and generally subject to strict scrutiny
Necessary to achieving
Compelling gov’t interest

88
Q

Substantive DP Fundamental

A 
Marriage
Living with family
Child bearing
Child rearing
Domestic travel
Voting
Free Speech
89
Q

Substantive DP Non-Fundamental

A

Everything else
Rational Basis
Rationally related to
Legitimate gov’t interest

90
Q

Procedural Due Process

A

Requires the gov’t to use
Fair process before
Intentionally depriving
Life, liberty, or property

91
Q

Liberty Proc DP

A

Drive or raise a family

92
Q

Property Proc DP

A 
Real property
Personal property
Public education
Gov’t education
Gov’t licenses
Gov’t benefits already receiving
93
Q

Judicial Process Due for PDP

A

Right to hearing
Call Witnesses
Fair Trial
Appeal

94
Q

Non-Judicial Process Due for PDP

A

Individual’s interest in right affected
Added value of procedural safeguards used (Make up what they could have done)
Gov’t interest in fiscal and admin efficiency

95
Q

Equal Protection

A

Of 14th Amend and app to Fed through 5th

Treating similarly situated persons differently

96
Q

Suspect Classification EP

A

Based on race, national origin, alienage OR fundamental
Strict Scrutiny:
Necessary to achieve
Compelling gov’t interest

97
Q

Quasi-Suspect Classification EP

A

Based on gender or Illegitimacy
Intermediate:
Substantially related to achieve important gov’t interest

98
Q

Non-Suspect Classification EP

A

Everything else
Rational Basis:
Rationally related to legitimate gov’t interest

99
Q

Involuntary Servitude

A

Applicable to state and private

Forcing someone to perform by threat, restraint, or legal sanction

100
Q

Takings Clause

A 
5th Amend
Private property not taken without
Public use and just compensation
This can be real property, tangible property
Or intangible property
101
Q

Public Use Takings Clause

A

Rationally related to

Conceivable public purpose

102
Q

Just Compensation Takings Clause

A

Fair Market Value at time of taking

103
Q

Types of Taking

A

Total Taking
Temporary Taking
Regulatory

104
Q

Total Taking

A

Permanent physical invasion

Denies all economically beneficial use

105
Q

Temporary Taking

A

Economic Impact
Length of delay
Reasonable expectation of owners
Good faith on gov’t planners

106
Q

Regulatory Zoning

A

Character of the invasion
Economic impact on claimant
Interference w/ investment backed expectation

107
Q

Ex Post Facto

A 
Retroactive change to crim or penal law that
Criminalizes act not 
Crim when originally committed
Authorizes imposition of more severe penalty
Deprives defendant of defense 
Available at time committed OR
Decreases pros burden of proof 
Required for conviction
108
Q

Bills of Attainder

A

Declared guilty w/ out trial

Applies only to crim or penal

109
Q

Exaction (easement in order to obtain permit)

A

Not a taking if:
Essential nexus” between the public need and condition; and
Individualized determination of impact proportional to requirement

Utah Essay Bar Studies (16 decks)

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