Con Law Definitions

Question 1

Standing

Answer 1

Art 3 requires that a person must show a direct and immediate personal injury directly traced to the challenged action and likely to be redressed by the judicial relief.

Question 2

Association Standing: 3 Elements

Answer 2

Associations have standing to assert the rights of their members where:

1) The members themselves would have standing;
2) The interest asserted is relevant to the association’s purpose and;
3) The members themselves are not indispensable parties.

Question 3

Do Taxpayers have standing?

Answer 3

Tax payers generally do not have standing to challenge federal tax unless it involves a governmental spending power which results in an infringement of a specifically guaranteed Constitutional right.

Question 4

Third Party Standing

Answer 4

Exists where there is a close nexus between the claimant and third party, a high risk of compromising substantial rights, or not reasonable for third party to assert own rights.

Question 5

Ripeness

Answer 5

P attempting to bring suit too early. Argue whether it is fair to make P wait until actual injury before bringing suit.

Question 6

Mootness

Answer 6

Will adjudication have any affect on P’s rights? Exception: Ongoing problem (i.e. pregnancy)

Question 7

Federal Question: 3 types

Answer 7

Usually involves:

• Separation of powers
• National policy
• International affairs

Question 8

What does 11th Amendment cover?

Answer 8

Bars a citizen of one state from suing another state without its consent in federal court.

Question 9

Definition of Commerce Clause

Answer 9

Article 1, Section 8:

Gives Congress the power to regulate commerce with the foreign nations and among the several states and with the Indian Tribes. This includes the ability to regulate the channels and instrumentalities of interstate commerce and persons and things involved in interstate commerce..

Question 10

Taxing Power

Answer 10

Must be revenue raising as opposed to regulatory in nature. What is the dominant intent of the tax?

Question 11

Bill of Attainder

Answer 11

A legislative act directed against a class of designated persons, pronouncing guilt without a trial or conviction.

Question 12

Ex Post Facto Law

Answer 12

A criminal law passed after the occurrence of a fact or commission of an act, which retroactively changes the legal consequences or relations of such fact or deed. States are forbidden from enacting Ex Post Facto laws.

Question 13

What does 10th Amendment cover?

Answer 13

States have power to regulate in ways that have an affect on interstate commerce as long as it does not infringe upon Congressional Commerce Power.

Question 14

Doctrine of Alternative Means

Answer 14

If a state has a strong interest which can be accomplished by alternative means with less burden on commerce, the law will be held invalid.

Question 15

Preemption Doctrine

Answer 15

Article VI states that the Constitution and the laws made in pursuance of it are to be the supreme law of the land and superior to any state law or constitutional provision in conflict with them.

Question 16

Express preemption

Answer 16

A federal rule or provision that expressly removes the power from the state to deal with a particular subject.

Question 17

Implied preemption

Answer 17

No express preemption language but the courts must imply preemption from the intentions of congress or the executive based on the nature and characteristics of the federal regulation.

Question 18

Three prong test if a state is taxing interstate commerce

Answer 18

1. Tax must be nondiscriminatory and revenue raising as opposed to burdening free flow of commerce.
2. There must be a substantial relationship to the benefits and protections afforded by the state.
3. Tax must be fairly apportioned.

Question 19

Privilege AND Immunities Clause

Answer 19

Art 4, Sec 2 states that Citizens of each state shall be entitled to all P/I of citizens of several states. Does not apply to Corporations.

Question 20

Privileges OR Immunities Clause (14th Amendment)

Answer 20

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Question 21

Article 1, Section 1

Answer 21

All legislative power shall be vested in a Congress

Question 22

Article 2, Section 1

Answer 22

Confers on the President entire executive power

Question 23

Article 3, Section 1

Answer 23

Provides that federal judicial power shall be vested in one Supreme Court

Question 24

Due Process Clause

Answer 24

The 5th/14th Amendments provide that the federal government shall not deprive any person of life, liberty or property without due process of law.

Must differentiate between substantive and procedural due process.

Question 25

State or Federal statute is judged by reasonableness using this 3 prong test.

Answer 25

1. Purpose of statute
2. Are means rationally related to purpose being sought?
3. Legitimate ends?

Question 26

Statute affecting Fundamental Individual Rights

Answer 26

Regulation will be found to be invalid unless found to be necessary to a compelling government interest. Look for least alternative means.

Question 27

What does Liberty include?

Answer 27

Includes more than freedom from physical restraint including right to contract, engage in gainful employment, to be free from defamation by the government.

Question 28

Eminent Domain rule

Answer 28

5th Amendment provides Nor shall private property be taken for public use without just compensation.

Question 29

Penn Central considerations regarding a taking

Answer 29

The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations.

Question 30

Contract Clause

Answer 30

Constitution forbids states from making laws impairing obligations of contracts. Must balance state interests against private interests.

Question 31

Equal Protection IRAC

Answer 31

1. Government Regulation (State statute)
2. Arbitrary Classification
3. Individuals similarly situated must be treated the same

Question 32

First Amendment IRAC

Answer 32

1. Freedom of Speech not absolute
2. First Amendment applicable to states via 14th Amendment.
3. Unprotected Speech
4. Freedom not to speak
5. Freedom of Association

Question 33

2 tests to determine if a Content-Neutral Speech regulation will be upheld

Answer 33

1. Does it further an important or substantial governmental interest unrelated to the suppression of speech?
2. Does the regulation burden more speech that substantially necessary?

Question 34

4 part test to determine if a law regulating Symbolic Conduct is justified

Answer 34

1. Is the regulation within the constitutional power of the government?
2. Does it further an important or substantial government interest?
3. Is the governmental interest unrelated to the suppression of free speech?
4. Is the incidental restriction on alleged First Amendment freedoms no greater than is essential to the furtherance of that interest?

Question 35

What is the issue regarding Content-Based Regulation?

Answer 35

Issue is whether the regulation is seeking to forbid communication of specific ideas. The government must show that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.

Question 36

What is the issue regarding Criminal advocacy (speech)?

Answer 36

Issue is whether speech advocates imminent illegal action including a breach of the peace and is likely to cause illegal activity.

Question 37

Definition of Fighting Words

Answer 37

Words that have very little social value and, by their utterance, inflict injury or tend to incite an immediate breach of the peace by the person to whom individually they are addressed.

Question 38

What is the issue regarding Hostile Audiences?

Answer 38

Do the speaker’s activities produce imminent threat of uncontrolled violence by listeners? Must balance public safety v. suppression of content.

Question 39

Is commercial speech Commercial Speech protected?

Answer 39

Protected as long as not false/illegal.

Question 40

3 prong test to determine if Obscenity is unprotected

Answer 40

1. Is the dominant theme shameful/morbid to an average member of society?
2. Is the material patently offensive by applying contemporary community standards?
3. Does it lack serious literary, artistic, political or scientific value.

Items 1 and 2 are based on community standard and 3 is based on national standard.

Question 41

Time/Place/Manner restrictions (Definition and 4 part test)

Answer 41

State has a legitimate interest to regulate time/place/manner as long as standards are specifically defined (health, safety, morals) and are unrelated to the content of expression.

1. Is the regulation content neutral?
2. Is the regulation narrowly tailored?
3. Does the regulation serve a significant government interest?
4. Are there ample alternative forums or channels of communication for protected expression?

Question 42

What is the issue with Overbreadth (Speech)?

Answer 42

Does statute regulate both protected and unprotected speech?

Question 43

What is the issue with Vagueness?

Answer 43

Does statute give notice to the reasonable person of common intelligence of what is specifically prohibited? If not, it’s void on its face.

Question 44

Definition of Establishment Clause

Answer 44

Government will neither aid nor formally establish religion as Constitution requires a wall of separation between church/state.

Question 45

Three part test for determining if regulation violates Establishment Clause

Answer 45

PEE

1. Purpose - Secular?
2. Effect - Primary neither advances nor inhibits religion
3. Excessive Entanglement

Question 46

Definition of Free Exercise Clause

Answer 46

Government shall make no law which prohibits free exercise of religion.