Con Law Flashcards
A federal court refused to hear a challenge to a new state law because the plaintiff had not yet suffered any harm and there was no immediate threat of harm. In other words, the case was dismissed because it was:
not ripe
Difference between ripeness, mootness, and lack of redressability.
If a plaintiff had not been harmed and there was no immediate threat of harm, then the case was not ripe for filing in the federal courts. The Supreme Court has interpreted the case or controversy language in Article III as a limitation on federal court jurisdiction that prevents federal courts from hearing cases before someone is harmed or threatened with harm.Ripeness bars consideration of claims before they have been developed; mootness bars their consideration after they have been resolved. If a plaintiff’s injury cannot be remedied by a decision in her favor, it is not redressable, and the federal courts will not hear the case based on a lack of standing. However, the plaintiff in this question had not yet suffered any injury; thus, the case was dismissed because it was not ripe.
There is a question as to whether a candidate for Congress meets the age and residency requirements for office. This constitutes a __________ question, and thus the Supreme Court __________ decide it.
Political; will not
Political questions are . . .
issues committed by the Constitution to another branch of government, OR those inherently incapable of resolution and enforcement by the judicial process. The Court will not decide political questions. A question as to whether a candidate for Congress meets the age and residency requirements for office is a political question because it is committed by the Constitution to the respective houses of Congress, and thus the Court will not decide it.
The Eleventh Amendment bars federal courts from hearing certain actions against __________.
State governments for damages
The Eleventh Amendment’s jurisdictional bar extends to the following:
- Actions against state governments for damages; 2. Actions against state governments for injunctive or declaratory relief where the state is named as a party; 3. Actions against state government officers where the effect of the suit will be that retroactive damages will be paid from the state treasury or where the action is the functional equivalent of a quiet title action that would divest the state of ownership of land; and 4. Actions against state government officers for violating state law.
The following cases may be heard by certiorari:
(i) Cases from the highest state courts where (a) the constitutionality of a federal statute, federal treaty, or state statute is called into question; or (b) a state statute allegedly violates federal law; and (ii) All cases from federal courts of appeals.NOTE: Decisions from a three-judge federal district court panel granting or denying injunctive relief CAN be appealed to the Supreme Court, but the appeal is mandatory rather than through discretionary certiorari review.
Grant of a writ of certiorari requires the agreement of at least ____ Justices.
four
A dealer in oriental rugs acquired an antique rug measuring 24 feet by 36 feet. A banker inspected the rug and orally agreed to buy it for the asking price of $65,000, provided he was successful in purchasing the house he was trying to buy, because it had a living room large enough to accommodate the rug. The sale agreement was later reduced to writing, but the provision concerning the purchase of the house was not included in the written agreement.If the banker is unsuccessful in acquiring the house he wants because the owner decided not to sell, and the dealer sues the banker for the purchase price. The banker will prevail b/c . . .
he was unable to acquire the house he wanted.In general, the parol evidence rule bars oral evidence contradicting a written agreement which was intended to be a final and exclusive embodiment of the parties’ agreement. However, one exception to this general rule provides that parol evidence is admissible to show a condition precedent to the existence of a contract.
Decisions from a three-judge federal district court panel granting or denying injunctive relief CAN be appealed to the Supreme Court, but the appeal is _____ rather than through discretionary certiorari review.
Mandatory
Is the 11th a bar if the action is against a state official and seeks prospective injunctive relief?
The Eleventh Amendment is not a bar. The Eleventh Amendment does not prohibit a federal court from hearing a claim for prospective injunctive relief against a state official.
A case or controversy will exist in a suit seeking declaratory judgment if _____. Complainants must show that _____ and that _____.
there is an actual dispute between parties having adverse legal intereststhey have engaged in (or wish to engage in) specific conductthe challenged action poses a real and immediate danger to their interests
A class action suit in which the named representative’s claim is moot can still be a case or controversy if _____.
some class members’ claims are viable.
If the buyer became insolvent, the manufacturer could, under the U.C.C., require that . . .
the buyer pay cash upon delivery or give assurances of payment.
Congress may eliminate _____ avenues for Supreme Court review as long as it _____.
specificdoes not eliminate all avenues.
In federal court, standing requires __________.
a concrete stake in the outcome.A person has standing if she can demonstrate a concrete stake in the outcome of the controversy shown by an injury in fact—caused by the government—that can be remedied by a ruling in the plaintiff’s favor (i.e., causation and redressability).
At least $75,000 in controversy is a requirement to _____.
establish diversity jurisdiction.(not standing)
The Contract Clause limits . . .
a state regarding legislation that retroactively impairs contract rights. The Contract Clause applies only to states, and only to legislation.The choices involving a court making a ruling and private parties entering an agreement are incorrect, because a court ruling and a private agreement do not involve legislation.
The Enabling Clause of the Fourteenth Amendment gives Congress the power to _____, but not to _____.
adopt legislation to enforce the rights and guarantees provided by the Amendmentexpand or create rights
A law adopted under the Enabling Clause in Section 5 of the Fourteenth Amendment will not be upheld unless Congress can point to a history or pattern of state violation of already recognized rights and the law is at least __________.
congruent and proportional to preventing or remedying the violation
Laws enacted under the Enabling Clause of the Fourteenth Amendment must be _____. This standard is similar to the _____ test.
congruent and proportional to preventing or remedying the violation in questionintermediate scrutiny (“narrowly tailored”)
under the M’Naghten rule, _______ is not a defense.
loss of control because of mental illness
A law requiring less evidence to convict a person of a crime than that required at the time that the act was allegedly committed most likely is a violation of the _____.
Ex Post Facto Clause
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. Requiring less activity to convict has been held to prejudicially alter the criminal law.
Mere procedural changes in state law will not trigger the Ex Post Facto Clause if _____ and _____.
the defendant had notice of the possible penalty the modified law does not increase the burden on the defendant
The Thirteenth Amendment provides that . . .
slavery shall not exist in the United States, it empowers Congress to prohibit all acts that are considered “badges of slavery,” and it forbids private individuals from discriminating on the basis of race.The Amendment applies to private as well as governmental action because it has no limiting language as to its effect. This is remarkable because most of the other constitutional limitations are solely on government action and are inapplicable to private citizens.
The Thirteenth Amendment applies to . . .
The Amendment applies to private as well as governmental action because it has no limiting language as to its effect. This is remarkable because most of the other constitutional limitations are solely on government action and are inapplicable to private citizens.
At common law, each person who took part in the planning of a crime was criminally liable for ______. However, if one of the conspirators “withdrew” from the criminal effort ______, he was not liable for _____. To successfully withdraw, the actor must _____; this must be done _____.
a. the crime of conspiracy and for each offense committed in furtherance of the conspiracyb. before the substantive crimes occurredc. the subsequent crimesd. notify all members of the conspiracy that he has withdrawne. in time for them to have an opportunity to abandon the planned crimes
A deprivation of liberty (Due Process Clause) occurs if _____.
a person (i) loses significant freedom of action; or (ii) is denied a freedom provided by the Constitution or a statute.
A person has a property interest in continuation of a government benefit if the person has _____.
a legitimate claim or entitlement to the benefitThe term property is broader here than personal belongings, realty, and chattels. But an abstract need or desire or a unilateral expectation of the benefit is not enough. There must be a legitimate claim or entitlement to the benefit based on state or federal law or policy.
Because the Constitution generally prohibits only governmental infringements of individual rights, “state action” generally must be found to hold a particular deprivation of rights unconstitutional.Purportedly private action be given state action status where _____.
Where the activities of a state and a private entity are greatly intertwinedPrivate activities will not be attributed to the state merely because a business is heavily regulated by the state, the state provides essential services to a private entity, or the state has granted a monopoly to a business.
Under the rules the Supreme Court currently uses to determine whether an abortion regulation is valid _____.
, BEFORE viability, the government may not impose an undue burden on a woman’s ability to obtain an abortion.The choices involving trimesters are incorrect. The Supreme Court formerly differentiated its approach to abortion regulation based on the trimester of pregnancy involved, but the Court no longer uses this approach.
For equal protection purposes, the __________ standard is used to determine the constitutionality of a government action based on age.
rational basisThis is because age is not a suspect classification. Thus, discrimination will be upheld unless the challenger can show that it is not rationally related to a legitimate government interest.
Under the rational basis test, discrimination will be upheld unless _____.
the challenger can show that it is not rationally related to a legitimate government interest.
_____ applies to suspect classifications such as race, and intermediate scrutiny applies to _____ such as _____and_____. Recall that under those standards, _____usually has the burden of proof—_____ in the case of strict scrutiny, and in the case of intermediate scrutiny.
Strict scrutinyquasi-suspect classificationsgenderlegitimacythe government necessary to achieve a compelling interestsubstantially related to an important government interest
The federal government may/may not outlaw state-imposed literacy tests as a prerequisite to voting in a state election
may
_____ is not itself sufficient to trigger strict or intermediate scrutiny on a claim that government action discriminates on the basis of a suspect or quasi-suspect classification.
Discriminatory effect
Under the preemption doctrine federal laws can __________.
occupy an entire field and prevent any state laws in the field, whether conflicting or complementary
Only _____ discrimination violates the Equal Protection Clause, and the mere fact that government action appears to have a discriminatory effect does not show a discriminatory intent.
intentional
In order for the judgment of one jurisdiction to be given full faith and credit in another jurisdiction, the following requirements must be met . . .
- The court that rendered the judgment must have had jurisdiction over the parties and the subject matter; 2. The judgment must have been on the merits, i.e., on the substance of the plaintiff’s claim rather than on a procedural issue, such as improper venue or running of the statute of limitations; and 3. The judgment must be final. NOTE: It is not required that a judgment be penal in nature
_____ is are themselves sufficient to trigger strict or intermediate scrutiny on a claim that government action discriminates on the basis of a suspect or quasi-suspect classification.
facial discriminationdiscriminatory applicationdiscriminatory motive
Before a state can sue the United States it . . .
as a consequence of sovereign immunity, a state may not sue the United States without obtaining consent. A state may sue the United States only with the consent of the United States.NOTE: A state may, however, sue another state without obtaining the state’s consent. Likewise, the United States can sue any state without obtaining the state’s consent.
_____ can be proven even though the classification is not explicit and case example.
facial discriminationFor example, facial discrimination was found when a bizarrely drawn redistricting electoral map could not be explained in any way other than in terms of establishing a district in which racial minority persons would be the majority in the district.
The doctrine of “field preemption” means that:
Under the doctrine of field preemption, federal laws can occupy an entire field and prevent any state laws in the field, whether conflicting or complementary. A state or local law may fail under the Supremacy Clause, even if it does not conflict with federally regulated conduct or objectives, if it appears that Congress intended to “occupy” the entire field, thus precluding any state or local regulation.
Discriminatory application of a law or program to a certain individual or group of individual is sufficient to show discriminatory intent, even if _____. The classic example here is _____.
the program appears to be neutral on its facea zoning ordinance that prohibits laundries in wooden buildings unless the owner is granted an exception, and exceptions are granted only to majority race members and denied to minority race members.
What does the Fourteenth Amendment Privileges or Immunities Clause protect?
he Fourteenth Amendment Privileges or Immunities Clause prohibits states from denying their citizens the rights of national citizenship, such as the right to petition Congress for redress of grievances, the right to vote for federal officers, the right to enter public lands, the right to interstate travel, and any other right flowing from the distinct relation of a citizen to the United States Government.
_____ that the government action has a discriminatory effect is not enough to show discriminatory intent or purpose.
Mere statistical evidence
When the federal government acts within a state, the state ____________ impose non-discriminatory, indirect taxes on the federal government or its property _____________.
May; as long as they do not unreasonably burden the federal government
__________ is not a fundamental right.
The right to international travel
Redressibility is . . .
the part of standing that provides that a decision in the plaintiff’s favor must be able to remedy the harm.
_____ all are considered fundamental rights, as are all other _____. Thus, government limitations on these rights, if challenged, generally will be held invalid unless _____.
The right to vote, the right of privacy, and the right of free speech First Amendment rightsthe government can prove that the limitation is necessary to achieve a compelling government interest (i.e., strict scrutiny).
The federal courts will not hear a case unless the plaintiff can show a concrete stake in the outcome of the litigation.What is the name given to the standing concept that a decision in the plaintiff’s favor will eliminate the harm to the plaintiff?
Redressability
The one person, one vote principle requires almost exact mathematical equality between _____. The standard for _____ districts is much more lenient than the almost exact mathematical equality standard. The variance from district to district may not be unjustifiably large, but a variance of even ____ has been found to be valid.
Congressional districts within a statestate and local government16%
Grant of a writ of certiorari requires the agreement of at least . . .
four justices
_____are the three suspect classifications designated by the Supreme Court as requiring a strict standard of review (strict scrutiny) for a challenge to a government action or law on the basis of equal protection.
Race, national origin, and alienage
Decisions from a three-judge federal district court panel granting or denying injunctive relief CAN be appealed to the Supreme Court, but the appeal is . . .
mandatory rather than through discretionary certiorari review.
In determining whether punitive damages are excessive to the point of violating due process, what is important is whether _____. To this end, courts will consider _____ (factors).
the defendant had fair notice of the possible magnitude of the punitive damages arising from the defendant’s conduct(i) The reprehensibility of the defendant’s conduct (e.g., whether the defendant caused physical harm rather than merely economic harm, whether the defendant acted with reckless disregard for harm, whether the conduct was repeated rather than isolated, and whether the harm resulted from intentional malice or deceit rather than from an accident); (ii) The disparity between the actual or potential harm suffered by the plaintiff and the punitive award; and (iii) The difference between the punitive damages award and the criminal or civil penalties authorized for comparable misconduct.
A case holding that a state statute violates federal law is not appealable unless . . .
the case is being appealed from the highest state court.
The First Amendment provides, among other things, that government may make no laws infringing the freedom of speech.Under the First Amendment, a statute or ordinance that burdens speech based on its content generally must be __________ in order to pass constitutional muster.
necessary to serve a compelling state interest
The Eleventh Amendment could bar a federal court from hearing an action for damages by _________ against __________.
A private party/ a state governmentAn action in federal court by a private party against a state is barred from being heard by a federal court under the Eleventh Amendment. The Eleventh Amendment does not bar actions against states by the United States Government or other state governments. Thus, an action by one state government against another is not barred from being heard by a federal court under the Eleventh Amendment. Nor would the Eleventh Amendment bar an action by the United States Government against a state government. An action by the United States Government against a local county is not barred from being heard by a federal court under the Eleventh Amendment. The Eleventh Amendment protects only state governments. Local governments (e.g., the government of cities or counties) are not protected. Furthermore, actions by the United States Government are not barred.
The Supreme Court does not impose a bond requirement in every case seeking _____. The Court does impose a number of procedural safeguards to ensure that the restraint is justified, including _____.
a prior restraintStandards must be narrowly drawn and definite; the restraining body must promptly seek an injunction; and there must be a prompt and final judicial determination of the validity of the restraint.
Standing requires . . .
a concrete stake in the outcome of the suit comprised of an injury in fact and redressability. A citizen’s interest in seeing that the government acts constitutionally is too remote an interest on which to base standing.
A prior restraint is _____.
any regulatory system, injunction, or other action by the government that serves to stop speech from reaching the public.
Article III, Section 2 provides that . . .
The Supreme Court’s appellate jurisdiction is subject to such exceptions and regulations as Congress shall make.
Courts are reluctant to allow prior restraints but may do so if the action is _____. There must be _____; otherwise our Constitution favors allowing the speech to join the marketplace of ideas.3 examples of valid prior restraints are _____.
“narrowly drawn, reasonable, and definite.”some special societal harm justifying the restraintMaintaining discipline among troops and efficiency of operations on a military base is a sufficient interest on which to base a prior restraint. The Supreme Court, therefore, found that a base commander could require pre-approval of petitions to be circulated on the base. A contractually agreed-to restraint between the government and an employee has also been found to be sufficient to justify the government’s requirement that a CIA agent allow the CIA to review a book he wrote regarding his job before it goes to print.Obscenity is probably the most common justification for prior restraints.
Congress may not take cases of the type traditionally heard by Article III courts and assign jurisdiction over them to Article I courts, because . . .
judges in such courts lack the protections of life tenure and against salary decreases that Article III judges enjoy (and so might be more likely to bend to outside pressure) and because some Article I judges also have administrative duties (which could raise separation of powers concerns if all Article III cases were heard by Article I judges).
Material will be considered obscene if it meets a _____ part test that considers _____.A _____ standard MAY be used to determine whether the material __________; a ______ MUST be used to determine whether the material __________.
threewhether the material appeals to the prurient interest in sex, portrays sex in a patently offensive way and lacks serious social value (serious literary, artistic, political, or scientific value).contemporary communitynational, reasonable person standardappeals to the prurient interest in sex and portrays sex in a patently offensive way; lacks serious social value.
An organization has standing to challenge government actions that cause an injury in fact to its members if the organization can demonstrate:
(i) An injury in fact to the members of the organization that would give individual members a right to sue on their own behalf; (ii) The injury to the members must be related to the organization’s purpose; and (iii) Neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit.
The Supreme Court has defined obscenity as . . .
a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards, (i) Appeals to the prurient interest in sex, (ii) Portrays sex in a patently offensive way, and (iii) Does not have serious literary, artistic, political, or scientific value. Material designed for a clearly defined deviant sexual group is not part of the Supreme Court’s definition of obscenity. Material that incites lust is also not part of the definition insofar as lust may include a normal interest in sex.
Cases by three-judge federal district court panels that grant or deny injunctive relief fall within the ________ jurisdiction of the Supreme Court.
mandatory appellate jurisdiction
To be valid, a time, place, and manner regulation of a limited public forum must be __________.
viewpoint neutral and rationally related to a legitimate government purposeregulation of a limited public forum can be based on content, but it must not be based on viewpoint. For example, a school gym might be opened to the public to host a debate on a specific issue (e.g., whether the city should grant a permit to an abortion clinic). The school can prohibit people from raising other issues (e.g., whether the city needs new storm sewers) to regulate the content in the open forum during the debate, but the school cannot allow people against the clinic to speak while prohibiting those in favor from speaking, because that would not be viewpoint neutral.
Cases from the highest state court that question the constitutionality of a federal treaty or statute, or a state statute _do/do not__fall within the mandatory appellate jurisdiction of the Supreme Court.
do notSuch cases may be appealed to the Supreme Court by writ of certiorari, but jurisdiction is within the Court’s discretion.
As used by the Supreme Court in First Amendment cases, a(n) __________ prohibits substantially more speech or speech-related conduct than is necessary to achieve a legitimate government interest.
Overbroad regulation
Cases from federal courts of appeal _do/do not__fall within the mandatory appellate jurisdiction of the Court.
do notJurisdiction in such cases is within the Court’s discretion.
As used by the Supreme Court in First Amendment cases, an overbroad regulation prohibits _____.
substantially more speech or speech-related conduct than is necessary to achieve a legitimate government interest. An overbroad regulation that prohibits a substantial amount of protected speech, judged in relation to the regulation’s plainly legitimate sweep, is facially invalid and may not be enforced against anyone. However, if a regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.
A political question is . . .
an issue committed to another branch of the federal government, and a federal court will not review such an issue. Political questions also include issues inherently incapable of resolution and enforcement by the judicial process.
An overbroad regulation that prohibits _____, judged in relation to the regulation’s _____, is _____ and, therefore _____. However, if a regulation is not substantially overbroad, it can be enforced against _____.
a substantial amount of protected speechplainly legitimate sweepfacially invalidmay not be enforced against anyonepersons engaging in activities that are not constitutionally protected
Abstention is . . .
the concept that a federal court will not review a claim because it is based on an unsettled question of state law, involves a pending state criminal proceeding, or involves a pending state civil or administrative proceeding that concerns an important state interest. Under the doctrine of strict necessity, the federal courts will allow the state to decide the issue first, possibly avoiding the need for litigation in the federal court. Abstention does not involve an issue committed to another branch of the federal government.
A vague regulation is _____ and will be held void for that reason. The concern is that _____.
one that does not give people reasonable notice of what speech or speech-related conduct is prohibitedif a person is afraid to speak because he does not know what is unlawful, constitutionally protected speech will be curtailed as well.
Standing involves the claimant demonstrating . . .
a concrete stake in the outcome of a case.
A law or government program must be _____ if it includes a preference for some religious groups over others. Government actions that include sect preferences must meet a ____ standard to be valid under the Establishment Clause.
narrowly tailored to serve a compelling government intereststrict scrutiny
The Eleventh Amendment is . . .
a jurisdictional bar that modifies the judicial power by prohibiting a federal court from hearing a private party’s or foreign government’s claims against a state government.
The employer may ask about _____ (membership). This is allowed because _____.
membership in any organization relevant to the employee’s positionthe disclosure has a sufficient relationship to loyalty and competence.
he Supreme Court will refuse to hear a case from a state’s highest court if __________.
Adequate and independent state grounds support the state court decisionIf the state grounds are fully dispositive of the case and do not depend on federal case law interpretation, federal review would be pointless because regardless of how any federal issue is resolved, the state law grounds would support the state judgment. But if the state grounds are not adequate to support the judgment or are not independent of federal law, the federal courts will hear the case.
Regulations of core political speech are upheld if the __________ can show that they __________.
Government; are necessary to achieve a compelling government interest
At least $75,000 in controversy is not a standing requirement. It is a requirement to . . .
establish diversity jurisdiction.
Narrowly tailored to serve an important interest is a test for which standard?
intermediate scrutiny standard.
Is an economic injury required for standing in federal court?
An economic injury is not required for standing in federal court. An impact on a person’s well-being or enjoyment of the environment has been found by the Supreme Court to be sufficient harm for standing.
In Establishment Clause cases, the courts usually use the _____ part _____ test. The test is . . .
3 Lemon1. The action has a secular purpose, 2. The action has a primary effect that neither advances nor inhibits religion, and 3. The action does not produce excessive government entanglement with religion.
The Supreme Court must hear cases . . .
that come to it by appeal (i.e., mandatory jurisdiction). Mandatory appeal is available as to decisions made by three-judge federal district court panels that grant or deny injunctive relief.
A government employer may ask a prospective employee about membership in any organization _____.
sufficiently relevant to the loyalty and competence of the prospective employee.
The Supreme Court has complete discretion (but is not required) to hear cases that come to it by writ of certiorari. The following cases may be heard by certiorari:
(i) Cases from the highest state courts where (a) the constitutionality of a federal statute, federal treaty, or state statute is called into question; or (b) a state statute allegedly violates federal law; and (ii) All cases from federal courts of appeals.
Although the Free Exercise Clause protects the freedom of belief, perhaps absolutely, a court may assess whether a person who says he acted based upon religious beliefs _____. The Free Exercise Clause prohibits the courts from assessing the _____ of a particular religion’s beliefs.
actually held the beliefs claimedFor example, if a person says that he performed an act because “God told him to,” a court may assess whether the person really believes that “God told him to” so act.veracityMany religious beliefs are a matter of faith rather than fact, and the Free Exercise Clause prohibits the courts from weighing in on matters of faith.
Federal taxes must be . . .
uniform among the states.NOTE: The federal taxing power does NOT allow Congress to tax exports. Neither Congress nor the state can tax exports to foreign countries.
The Free Exercise Clause would prohibit the courts from requiring litigants to swear an oath on the Bible, although litigants may be _____.
permitted to so swear or given the choice to swear or affirm.
Congress’s property power includes the power to legislate for . . .
the general welfare regarding federal property and territories. The power to legislate for the general welfare (e.g., the health, safety, and morals of the people) is called the general police power. The federal government is a government of limited powers and does not have a general police power. Instead, the general police power belongs to the states. However, the federal government does have police powers over federal lands and territories, military bases, and Indian territories.The property power includes both the power to dispose of property and the power of eminent domain.
