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Con Law AOG > Con LAW gral > Flashcards

Con LAW gral Flashcards

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1
Q

Judicial Restrain (8)

A
  1. Avisory Opinion
  2. Political Q
  3. Standing
  4. Ripeness
  5. Mootness
  6. State Sovereign Inmunity
  7. Abstention to hear cases (Q of L unsettled/uncertain OR pending)
  8. Adequate and Independent State Grounds
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2
Q

Political Q (2)

A
  1. Cx commitment to another branch
  2. Lack of legal standards
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3
Q

Ripeness

A
  • Is there genuine + inmediate threat of harm
  • Test: future development to clarify dispute vs harship on P for waiting
  • for future harm: likelihood when not speculative)
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4
Q

Mootness

A

Is case settled or activity that generated case settled?

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5
Q

Mootness exceptions (2)

A

1) Capable of repetition but evading review (harm duration shorter than court cycle OR D’s voluntary cessation but resumable)
2) Class Actions

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6
Q

Standing reqs (3) ICR + prudential standards

A

Have “PERSONAL STAKE” on case/result

  1. Injury: personal and sirect
  2. Causation: cuasal relation action/harm
  3. Redressability: legal remedie avaialble for harm

+

Prudential:

  • no generalized grievance - no “citizen standing”
  • Victim in “zone of danger”
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7
Q

Cx - Judicial restrain - standing - 3rd party standing exceptions (3) that allow it

A

GRAL RULE: NO

1) Personal relation P-victim
2) Special need to adjudicate
3) Ltd tax payer: Establishment Clause Challenge - when expenditure that would violate establishment cause for freedom of religition

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8
Q

Standing - Prudential Factors (2)

A
  • No generalized grievance /citizen standing (only for establishment clause)
  • Case within “zone of interest” protected by statute
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9
Q

State Sovereign Immunity (11th Am) exceptions (5)

A

Gral Rule: No suing of State UNLESS:

1) Local Govts/agencies
2) State officers (personal action under color of law)
3) Express Consent - or after removing to fed court and use of 11th am as defense
4) Federal tax - for propietary activity
5) Congress Abrogation

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10
Q

Congress Abrogation (State Sovereign Immunity (11th Am) exceptions)

A

By use of Enforcement Clause (14th am section 5)

  • never under commerce power
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11
Q

Cx - Judicial Restrain - “Abstention to hear cases”

A

Prudential for court when:

  • When question of state law is unsettled or uncertain
  • Claim is still pending of relief from below
    • no final decision or no exhaustion of tools
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12
Q

CX - Judicial Restrain - Adequate and Independent State Grounds

A
  • For violation of state statute
  • When decision by state court is (2)
  1. clealry independent from federal grounds
  2. adequate to decide cases
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13
Q

Federal Congressional Power gral limits

A

No gral police power

  • Enumerated Powers AND
  • Necessary and Proper Clause (art I section 8)

States have “reserved power” /reminant

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14
Q

Enumerated Powers of Congress (CAMP/FTC/BD-C) + (TPI)

A
  • Commerce
  • Admiralty + Maritime Affair
  • Military + War - Postal
  • Foreign Affairs
  • Tax + Spending

- Citizenship + Naturalization

- Bankruptcy

  • D.C. laws

+

  • Takings clause
  • Property Clause
  • Investigation
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15
Q

Commerce Power - 3 prong (Lopez)

A
  1. Channels
  2. Instrumentalities
  3. Substantial Relationship
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16
Q

Enumerated Powers - Tax Power / type of actions and reqs (2)

A
  1. Tax: fiscal intent - generate revenue
  2. Spend: Gral Welfare Clause + use of conditions in federal appropriation, WHEN:
  • Reasonable relation btwn condition and purpose
  • Not too coercitive
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17
Q

Spend Power req

A

Gral Welfare Clause (spend with public purpose)

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18
Q

Req for Delegation of Legislative Power

A

Intelligible Pple

  • as sufficient guidance

and it has to be total - cant reserve right to veto law or action that delegated on someone

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19
Q

Non delegable fx by Congress (3)

A

1) Appropriation of funds
2) Impeachment
3) Declare War

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20
Q

14th Am Section 5 Enforcement Power of Congress judicial limit

A

1) Congress cant depart from SupCourt interpretation of C 2) Not create new rights

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21
Q

Federal Executive Powers (8)

A
  1. Take Care clause - exec of laws or veto - discretion
  2. Political Appointment
  3. Removal of appointed officials
  4. Impeachment (removal of elected officials)
  5. Pardon of federal crimes
  6. Commander in Chief
  7. Foreign Policy
  8. Executive Privilege and Immunity
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22
Q

Ppal officers appointment (Ambassadors, fed judges, cabinet members)

A

POTUS + avise and consent of senate

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23
Q

Open judicial candidates appointment

A

POTUS nominates - senate judicial committee reviews - simple majority of senate approves

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24
Q

Test for POTUS removal of appointed officials

A

“GOOD CAUSE”:

  • Impedes POTUS’ ability to perform his cx duty.
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25
Q

Exec Power - Foreign Policy fx (4)

A

1) Commander in Chief
2) Treaty Power: 2/3 of senate ratification
3) Executive Agreement: w/head of state
4) Congressional Exec Agreements: no2/3 approved by majority of both houses

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26
Q

Reasons for impeachment (3) + quorum

A

1) Treason
2) Bribery
3) “Other” high crimes or misdemeanors

(2/3 of senate votes)

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27
Q

Federalism (2 issues)

A

1) Intergovt taxation + inmunities

  • state commerce tax
  • state on fed
  • fed on states: uniform on propietary act
  • interstate innmunities and privileges art IV

2) Dormant Commerce Clause

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28
Q

Federalism - State Taxation of Commerce reqs

A

1) Non disciminatory
2) Nexus btwn state interest and activtiy taxed
3) Fairly apportioned with in-state business
4) Not stream of commerce (ok with start, end, break)

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29
Q

Federalism - State Taxation of Fed Govt General Rule

A

Not tax govt itself but its activtiies and NOT discrimnatory

(i.e. prop tax on fed building, income of fed employers, sales from bankruptcy)

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30
Q

Inm AND priv (IAP) vs Inm OR priv (IOP)

A
  • IAP: 4th Am - no discrimination by state against citizen/resident of other state .
  • IOP: 14th Am - protect against state/fed action on fundamental rights of nationals
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31
Q

Federalism - Inmunities and Privileges (IAP): 4th Am - Scope of protection

A

Protection against STATE action vs:

1) Fundamental civil state rights
2) Essential economic activities (livelihood)

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32
Q

CX - Federalism - Supremacy Clause / what, type of preemption

A

Art IV Fed law as supreme law of the land - preempts state law

  • C / fed statute/ treaty
  • Types of preemption:
  1. Express
  2. Field Occupation
  3. Actual conflict situation
33
Q

Reqs fro treaty to trump state law (2)

A

1) Self executing

OR

2) Congress enacted law to implement it

34
Q

Dormant Commerce Clause - Reqs for state action

A

1) Non discriminatory -not facially (“per se”) invalid against out of state
2) No unduly burden interstate commercial (when not facially invalid)
3) w/Congressional consent
4) Non discriminatory types of taxes

35
Q

Dormant Commerce Clause - Exceptions to facially discriminatory to out of state

A

1) No other means to advance legitimate interest of the state (under rigorous scrutiny) - i.e. quaranteen
2) State as market participant

36
Q

Ind rights - State Actions by private actors (4) when:

(protection from state actions)

A

1) Public fx doctrine: “traditionally by state…”
2) Mutual Contacts/Symbiotic relations - not for licenses
3) State command/encouragement
4) State courts enforce private right in “tension” with C.

37
Q

Equal Protection (EP) - 14th Am elements

A

similarly situated groups/persons treated different by state (fed/state)

38
Q

EP - 2 step analysis of law

A

1) Facially discriminatory?: ID class + level of scrutiny 2) Facially neutral? DI-DI: disparate impact + Discriminatory intent + apply facial challenge

39
Q

EP - Suspect Class - RAN

A

1) Race 2) Alienage or citizenship 3) National Origin

40
Q

EP - Quasi Suspect Class

A

1) Illegitimacy 2) Gender/sex

41
Q

EP - Leves of scrutiny - SIR

A

1) Strict
2) Intermediate
3) Rational Basis

42
Q

EP- Strict Scrunity

A

narrowly tailored (necessary + no less restrictive means av) + Compelling govt interest

[Govt burden]

43
Q

EP- Intermediate Scrutiny

A

Substantial relation + Important govt interest [Govt burden]

44
Q

EP - Rational Basis scrutiny

A

Rationally related to legitimate govt interest [P’s burden to prove it is not]

45
Q

Exceptions to incorporation of Bill of Rights by states (3)

A

1) Right to grand jury in criminal case
2) Right to jury trial on civil cases
3) Right against excessive bail

46
Q

DP - Procedural DP

A

Notice + Opp to be heard whenever state deprives life/liberty/property

47
Q

DP - Timing - Mathew’s balance test (4 factors) for pre-deprivation proceeding

A
  • importance of indv interest + risk of erroneous deprivation

VS

  • cost of pre-deprivation procedure + adm burden
48
Q

DP - Substantive DP - Test for non-fundamental rights

A

Rational basis scrutiny

49
Q

DP - Subtantive DP - Test for fundamental rights

A

Strict Scrutiny : narrowly tailored - compelling govt interest + no less restrictive means.

50
Q

DP - Fundamental rights for Substantive DP (1VIPR)

A

1) 1st am rights
2) Voting
3) Interstate travel
4) Privacy Rights - CAMPER
5) Refuse Medical Treatment

51
Q

DP - Privacy Rights (CAMPER)

A
  • Contraception
  • Abortion
  • Marriage
  • Procreation
  • Education
  • Relations in families
52
Q

Inmunities OR Privileges (IOP): 14th Am - Scope of protection

A

Rights of national citizenship

  • protection against govt (state/fed) action on fund rights (vote, work, interstate travel, relocation.)
53
Q

Contracts clause (art 1 section 10)

A

Prevents STATE from substantial impairment of public private contracts UNLESS significant public need

54
Q

CX - Takings clause - types + test for compensation

A

1) Trespassory:

  • a) Eminent domain: action brought by gvt
  • b) Inverse condemnation : action by owner bc of decrease in value

2) Regulatory: deprivation of all viable economic use of land

Test: Penn Central: negative economic impact vs interference with investment expectation vs character of govt

55
Q

Ex-post facto law (ind right) types of retroactive actions prohibited (3)

A

1) Make a conduct criminal
2) Increase punishment
3) Decrease burden of proof for conviction

[mere procedural challenges, special civil action (deportation) doesnt apply]

56
Q

1st amendment rights (4)

A

1) Freedom of religion (exercise + establishment)
2) Free speech
3) Freedom of press
4) Freedom of association

57
Q

Religion - Exercise -2 step analysis for level of scrutiny

A

1st: Is law a) grally applicable + b) facially neutral = Reasonable basis scrutiny
2nd: If law not all above: strict scrutiny

58
Q

Religion - Exercise - Strict Scrutiny for facially discriminatory law/regs - P to prove (2):

A

1) E of deliberate govt intent to interfere/prohibit/restrict OR
2) Law affect another fundamental right

59
Q

Religion - Establishment - Lemon Test for violation (3 parts + prudential question)

A

1) Is purpose of law secular (benefit of public in gral w/o religious consideration)
2) Primary effect not to advance/inhibit religion
3) No excessive govt entanglement +
4) Is govt action endorsement?

60
Q

Religion - Public displays - 2 elements

A

History + context

  • Van Orden: CX monument on Texas capitol after 40 years
  • Mc Creary: UNCX: 10th commandment in state court
61
Q

Free Speech - 2 step analysis-level of scrutiny

A

1st: Does law affect speech/expressive conduct
2nd: is expression content neutral (intermediate scrutiny) or content specific (protected - strict / unprotected -none)

62
Q

Free Speech - Elements for facial challenge of reg

A

1) Vagueness: not understandable for ordinary intelligence
2) Over-broad: language affects both protected/unprotected
3) Provides Unfettered Discretion to public officials

63
Q

Free Speech - Content Neutral - Public Forum elements for reg

A
  • Facially valid
  • Strict scrutiny = narrowly tailored + significant govt interest
  • Reasonable (time/manner/place) = open similar channels than closed ones
64
Q

Free Speech - Content Neutral - Non-Public Forum elements for reg to be reasonable (also for ltd public forum)

A
  • Facially valid
  • Viewpoint neutral
  • Rational relation with legitimate govt interest
  • No total prohibition of door-to-door solicitation
65
Q

Free Speech - Content Specific - Unprotected Speech (8)

A

Limited categories - SC wont expand

1) Defamation
2) Fighting Words
3) Commercial Speech
4) Obscenity
5) Child Pornography
6) Incites unlawfulness
7) Audience Veto
8) Integral to criminal conduct

66
Q

Defamation elements

A
  • false statement
  • about or concerning individual (P)
  • intended to be communicated to 3rd parties (slander/libel)
67
Q

Defamation burden of proof (person/matter)

A
  • Public/Public: on P - falsity + malice - Public/Private: on D - truth (DX pressumed for LUNI) - Private/Public: on P - falsity + N - Private/Private: on D - truth (DX pressumed for LUNI)
68
Q

Defamation - LUNI

A

1) Loathsome desease
2) Unchastity/Sexual Misconduct
3) Notorious criminal allegation (felony)
4) Injury in trade, business, or profession

69
Q

Protected Commercial Speech when (3):

A

1) Not for illegal activity/products/services
2) Not misleading (false/deceptive)
3) Pass strict scruitny (narrow + subtantial govt interest)

70
Q

Unprotected Speech - Obscenity: Standards for test

A

1) Local:
a) Lascive interest OR
b) Patently offensive
2) Objective: lack literary/artistic/political/scientific value

71
Q

Unprotected Speech - Inciting of unlawfulness - elements (3)

A

MUST INCITE - not enough to upset

1) Intentional
2) Likely to produce
3) an Imminent unlawful conduct

72
Q

Prior Restraint of speech - Exceptions to gral rule of UNCX (6)

A

1) Unprotected speech
2) Important govt interest
3) Regulation facially valid + strict scrutiny
4) Reasonable notice of the restriction
5) Uniformly applied
6) When permit denied allows from prompt judicial review

73
Q

Non-verbal speech - Political Conduct - elements proof

A

Govt to prove necessity to promote compelling interest

74
Q

Freedom of Association - Elements for restriction of group membership (punishment of members) (3)

A

1) Group advocates unlawfulness 2) Member is knowing and active 3) With specific intent to further unlawful behaviours

75
Q

Freedom of Association - Reasons for restriction (3) (CUL)

A

1) Compelling state interest 2) Reg unrelated to suppression of ideas 3) Least restrictive means.

76
Q

C Supremacy -Preemption - Types (3)

A

1) Express 2) Field Occupation 3) Actual Conflict: when compliance with both fed/state is impossible AND/OR impedes federal objective

77
Q
A
78
Q
A

Con Law AOG (2 decks)

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