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CA Bar Exam > Con Law > Flashcards

Con Law Flashcards

1
Q

What does Article III require for a case to be heard in fed court?

A

“Actual case or controversy”

Must consider:

  1. Standing
  2. Ripeness
  3. Mootness
  4. Political question
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2
Q

What are the requirements of standing?

A

Injury, causation, redressability

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3
Q

Can congress confer standing?

A

Not automatically. It can only create rights that may give rise to standing.

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4
Q

What is required to assert third party standing?

A
  1. P must have standing himself
  2. Injury adversely affects P’s relationship with third party
  3. 3d party unlikely/unable to assert own rights
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5
Q

Can organizations assert rights of its members?

A

Yes, if:

  1. Members would have standing to sue individually
  2. Injury is related to purpose of org
  3. Claim/relief doesn’t require participation of members
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6
Q

What is ripeness?

A

P has been harmed or suffers immediate threat of harm

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7
Q

What is mootness? Exceptions?

A

Live controversy must exist at all stages of of review.

Exceptions:

  1. Capable of repetition yet evading review
  2. Voluntary cessation by D
  3. Class action lawsuits (only one member must have ongoing injury)
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8
Q

What is the political question doctrine?

A

Courts will not adjudicate questions that are political in nature (Const. requires other branch to resolve, or court is incapable of resolving)

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9
Q

What is the Supreme Court’s original jurisdiction?

A

Suits between states and cases involving foreign ambassadors

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10
Q

How can Supreme Court review other cases?

A

Appellate review - writ of cert

Mandatory review - injunctive relief from district court panels (bypasses court of appeals)

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11
Q

When does Supreme Court decline to hear state court decisions?

A

If it rests on independent, adequate state law ground

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12
Q

What does the 11th amendment provide?

A

Citizens cannot sue states in federal court.

Exceptions:

  1. If state consents
  2. If enforcing laws under 14th amend and Congress has removed immunity
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13
Q

Can suits against state officers be brought in fed court?

A

Yes, for injunctive relief or damages against officer personally

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14
Q

What are Congress’s basic powers

A 
Tax and spend for general welfare
Regulate commerce
Naturalization
Bankruptcy
Raising/supporting military
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15
Q

What is the speech and debate clause?

A

gives criminal/civil immunity for “legislative acts” of members of congress

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16
Q

What is the Necessary & Proper clause?

A

Enables congress to take any action (not otherwise prohibited) to carry out its enumerated powers.

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17
Q

What is the limitation on Congress’s taxing/spending power?

A

10th Amendment

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18
Q

Does Congress have police power?

A

No general power, except for military, reservations, fed land, and DC

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19
Q

What is the 10th amendment and what does it do to Congress?

A

Powers not granted to fed gov’t are reserved to the states.

Limits Congress ability to regulate/tax states alone (Congress can’t require states to enact laws, except civil rights).

NOTE: Congress can induce states to follow fed laws through conditional grants if not unduly coercive.

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20
Q

What is the Commerce Clause and what can Congress do with it?

A

Gives Congress exclusive authority to regulate interstate commerce.

Can regulate channels, instrumentalities, and activities that have a SUBSTANTIAL effect on interstate commerce. Very broad power.

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21
Q

Can Congress regulate commerce within states? Economic vs. non-economic activities?

A

Yes:
Economic activities - rational basis for AGGREGATE activity SUBSTANTIALLY affecting INTERSTATE commerce.

Non-economic activities - Congress can only regulate non-economic activity if it has DIRECT, SUBSTANTIAL economic effect on interstate commerce.

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22
Q

What is the Supremacy Clause? In what situations does fed law trump state law?

A

States that Constitution is supreme law of the land.

  1. direct conflict
  2. Impedes objectives of fed law
  3. Regulates area traditionally occupied by congress, or area that intends to occupy “entire field”
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23
Q

What is the Dormant Commerce Clause?

A

States may NOT regulate INTERSTATE commerce if:
1. Discriminatory against out-of-state or out-of-town competition.
EXCEPTION: If necessary to achieve important noneconomic government interest with no reasonable alternatives
2. Unduly burdensome
EXCEPTION: rational basis to gov’t interest + balancing of interests

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24
Q

When can a state/locality favor local interests under the Dormant Commerce Clause?

A
  1. Market Participant: If state operates/owns a business

2. Congress consents

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25
Q

If a state discriminates against out-of-towners, along with DCC, what other issues might be implicated?

A

Equal protection because similarly situated people are being treated differently.

Also, Privileges and Immunities usually applies.

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26
Q

What is the Privileges and Immunities Clause of Article IV?

A

Prevents states from discriminating against non citizens regarding rights fundamental to national unity.

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27
Q

Under Privileges and Immunities Clause, what are rights fundamental to national unity?

A

Commercial activities such as one’s right to support oneself, right to be employed, engage in business, practice one’s profession, or civil liberties.

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28
Q

Under Privileges and Immunities Clause, are corporations or aliens considered citizens?

A

No, and so they will not be afford protection under this Clause.

29
Q

What is the test for Privileges and Immunities claims?

A

Rigorous Scrutiny: Discrimination only permitted against non citizens if non citizens are

  1. Peculiar source of evil
  2. Discrimination substantially related to evil
  3. No less discriminatory means available
30
Q

What is the Contracts Clause?

A

Prevents state governments from passing laws that RETROACTIVELY and SUBSTANTIALLY impair existing contracts.

31
Q

What does the constitution apply to + exceptions

A

Government actions

However, it can apply to PRIVATE actions if:

  1. the private entity performs exclusive public function (elections, prisons)
  2. Significant state entanglement - state authorizes or facilitates private conduct
32
Q

What are the general constitutional restrictions on state actions?

A
  1. Supremacy Clause
  2. Dormant Commerce Clause (if discriminatory and unduly burdensome)
  3. Privileges and Immunities Clause
  4. Contracts Clause
33
Q

What are the general constitutional limitations on federal power?

A
  1. 10th Amendment
  2. Improper delegation of legislative power (can delegate regulatory authority to exec agencies if intelligible standards)
34
Q

What are the two religion clauses?

A

Free exercise and Establishment

35
Q

What are the 3 levels of scrutiny used to analyze constitutionality of gov’t acts under SUBSTANTIVE DUE PROCESS and EQUAL PROTECTION

A
  1. Rational Basis - rationally related to legitimate gov’t purpose
  2. Intermediate Scrutiny - substantially related to important gov’t purpose
  3. Strict Scrutiny - necessary to achieve compelling gov’t purpose
36
Q

What is procedural due process?

A

Fair process is required before intentionally depriving person of life, liberty, or property?

Liberty: physical liberty, others freedoms (right to drive, raise family, etc)
Property: real property, welfare, gov’t employment, etc.

Procedures required are determined by BALANCING gov’t interest in fiscal/administrative efficiency and importance of individual interest.

37
Q

What is Substantive Due Process?

A

Limits/determines whether gov’t has adequate REASONS (as opposed to fair process) for depriving life, liberty, or property. Applies to BOTH fundamental and non-fundamental rights.

38
Q

What levels of scrutiny apply to Substantive Due Process?

A
  1. Non-fundamental - rational basis

2. Fundamental - strict scrutiny

39
Q

What test applies to economic rights?

A

Rational basis unless it falls under:

  1. Contract Clause (intermediate-type for private Ks, stricter for gov’t Ks)
  2. Takings Clause
40
Q

What is ex post facto clause and bills of attainder?

A

Ex post facto - no retroactive law criminally punishing people or reducing burden of proof

Bill of attainder - no legislative act punishing specific people without a trial

41
Q

What is the Takings Clause?

A

5th Amend prohibits gov’t from taking private property without providing “just compensation” to owner.

Can be:

  1. Possessory taking - gov’t occupies property
  2. Regulatory taking - gov’t action adversely affects property value (e.g., zoning). Denial of ALL economic value is required.
42
Q

When does Substantive Due Process and Equal Protection generally apply?

A

SDP - if right is denied to all
EP - if right is denied to some but not others

Remember, non-fundamental rights receive rational basis review only.

43
Q

What are some fundamental privacy rights subject to strict scrutiny?

A

Right to marry, procreate, family, contraception

NOTE: abortion (undue burden), homosexual relations, and refusing medical treatment have separate or unknown levels of scrutiny

44
Q

What does the right to vote normally implicate?

A

EP

45
Q

What does the right to travel normally implicate

A

EP

46
Q

What is the analysis under Equal Protection?

A
  1. Is there a discriminatory classification?
  2. What level of scrutiny applies?
  3. Does classification satisfying level of scrutiny?
47
Q

What scrutiny do suspect classifications receive? Quasi-suspect? Others?

A

Strict, intermediate, rational basis.

48
Q

What are the suspect classifications for EP?

A
  1. Race
  2. National origin
  3. Alienage (unless it relates to democratic process or immigration)
  4. Right to Travel
  5. Right to Vote
49
Q

What are quasi-suspect classes of EP?

A
  1. Gender

2. Non-marital children

50
Q

What are some other classes (rational basis) under EP?

A

Age, disability, wealth, etc.

51
Q

What are some EP fundamental rights?

A
  1. Voting
  2. Being political candidate
  3. Access to courts
  4. Migrating
  5. 1st Amend.
52
Q

How can P prove discriminatory classification?

A
  1. Facial discrimination
  2. As-applied
  3. Discriminatory motive - disparate impact + discriminatory purpose
53
Q

What is usually required for gender classifications in addition to intermediate scrutiny?

A

Exceedingly persuasive justification

54
Q

What levels of scrutiny apply to 1st Amendment claims?

A

Content-based restrictions - strict
Content-neutral restrictions - intermediate
Time/manner/place -depends on type of forum (public or limited/non public)

55
Q

What are the unprotected categories of speech, and how must the government regulate them?

A

Obscenity, misrepresentation, defamation, imminent lawless action, fighting words.

Intermediate scrutiny applies.

56
Q

What is the test for obscenity?

A 
Appeal to prurient interest
Patently offensive (community standard)
Lacks serious literary, artistic, political, or scientific value (LAPS)
57
Q

Speech in PUBLIC FORUMS test:

A
  1. Content neutral
  2. Narrowly tailored to achieve important gov’t purpose
  3. Leaves adequate alternative channels of communication
58
Q

Limited/Designated Public Forums

What are they and what’s the test?

A

Gov’t property that gov’t opens for speech, but can close at any time
Test: same as public forums, but only when open. Otherwise, same as non-public forums.

59
Q

Non-public forum

What is it, and what’s the test?

A

Gov’t property that can be closed to speech (airports, military bases,etc.)

test:
1. reasonably related to legit purpose
2. Viewpoint neutral (NOTE: not CONTENT-neutral, so gov’t can limit to certain subjects, just can’t discriminate based on viewpoint within those subjects)

60
Q

What are prior restraints? Which test applies?

A

Court order or other ban on speech before it occurs.

Strict scrutiny.

61
Q

What is vagueness & overbreadth

A

Vagueness - law is vague if reasonable person can’t tell whether speech is prohibited or permitted.

Overbreadth - law is overbroad if it regulates substantially more speech than Constitution permits

62
Q

Test for symbolic speech?

A

Further important government interest unrelated to suppression of speech (content neutral)

No more speech than necessary

63
Q

Commercial Speech test:

A

Essentially intermediate scrutiny if protected (not protected if false, misleading, illegal).

64
Q

Defamation

What must P prove if defamation involves public figure, official, or matter of public concern?

A
  1. Falsity of statement
  2. Fault :
    A. Public Official - actual malice (knowledge of falsity or reckless disregard of truth)
    B. Private figure - negligence as to truth
65
Q

What are the two religion clauses?

A

Free Exercise: prohibits gov’t punishment based on religious conduct

Establishment Clause: gov’t can’t endorse or favor specific religious groups.

66
Q

What types of gov’t actions are valid under the Free Exercise Clause?

A

Acts of general applicability that don’t intentionally target religion.

67
Q

What is the exception to laws of general applicability?

A

Religious Freedom Restoration Act (RFRA): allows person to challenge FEDERAL law if general applicability substantially burdens their religious exercise, and imposes strict scrutiny. (E.g., Hobby Lobby bitches)

68
Q

For Establishment Clause claims, what test is used?

A

If sect preference, strict scrutiny applies.
If no sect preference, Lemon Test:
Gov’t act is valid if:
1. secular purpose
2. Neither advances nor inhibits religion
3. No excessive government entanglement with religion

CA Bar Exam (11 decks)

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