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Bar Exam Study > Con Law Lecture 2 > Flashcards

Con Law Lecture 2 Flashcards

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1
Q

definition of procedural due process?

A

procedures the government must follow when taking away life, liberty, or property

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2
Q

definition of substantive due process

A

asks: does the government have adequate reason to take away life, liberty or property?

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3
Q

definition of equal protection

A

whether the government’s different treatment of people is adequately justified (turns on type of discrimination and level of scrutiny)

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4
Q

what are the 2 steps in a procedural due process analysis?

A
  1. Has there been a deprivation of life, liberty, or property?
  2. what procedures are required?
    - balance the important interests of the individual, whether additional procedures would increase the accuracy of the fact finding, the government’s interest)
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5
Q

what must be balanced on the second step of a DPC analysis to determine what procedures should apply?

A
  1. importance of the interest to the individual
  2. ability of additional procedures to increase the accuracy of the fact finding and
  3. the government’s interests
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6
Q

if an individual has not been deprived of life, liberty or property, does the government need to afford the individual due process?

A

no

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7
Q

which level of scrutiny applies when there has been a challenge to a law dealing with an economic liberty?

A

rational basis

law upheld if it is rationally related to a legitimate government purpose

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8
Q

what is an economic right?

A

a right dealing w/ employment, profession, or consumer protection

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9
Q

where does the takings clause come from?

A

the 5th amendment

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10
Q

what does the takings clause say?

A

the government may take private property for public use if it provides just compensation

*the taking is for public use if the gov acts w/ a reasonable belief the taking will benefit the public

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11
Q

what does the contracts clause say and who does it apply to?

A

Says: no state shall impair the obligation of contracts

Applies only to state or local interference w/ existing contracts

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12
Q

what type of scrutiny is applied when state or local interference w/ private contracts happens?

A

special intermediate scrutiny

  1. does the legislation substantially impair a party’s rights under an existing contract?
  2. if so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
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13
Q

what type of scrutiny is applied when there is state or local interference with government contracts?

A

strict scrutiny

*law upheld if it is necessary to achieve a compelling government purpose

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14
Q

is privacy a fundamental right protected under substantive due process?

A

yes

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15
Q

what does the right to privacy include?

A
  1. the right to marry
  2. the right to procreate
  3. the right to custody of one’s children
  4. the right to keep the family together
  5. the right to control the upbringing of one’s children
  6. the right to purchase and use contraceptives
  7. the right to an abortion
  8. the right to engage in private consensual homosexual activities
  9. the right to refuse medical treatment
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16
Q

when can states not prohibit abortion?

A

prior to viability

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17
Q

can states regulated abortion after the fetus is viable?

A

yes, so long as they do not create an undue burden on the ability to obtain abortions

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18
Q

does the government have a duty to subsidize abortions or to provide abortions in public hospitals?

A

no

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19
Q

are spousal consent and notification laws relating to abortion constitutional?

A

no

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20
Q

is there a right to physiance assisted death?

A

no

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21
Q

is the right to keep and bear arms absolute?

A

no, just have the right to keep guns in the home for protection. States can regulate who has guns, where guns are sold, and what type of guns people own

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22
Q

has the SC announced a scrutiny standard for the second amendment?

A

no

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23
Q

has the second amendment (right to bear arms) been incorporated so it applies to state and local governments?

A

yes

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24
Q

a law preventing people from moving into a state protects the right to ____ and must meet ____ scrutiny

A
  • the right to travel
  • strict scrutiny

(Strict scrutiny = upheld if necessary to achieve a compelling government purpose)

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25
Q

is there a fundamental right to international travel?

A

no

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26
Q

laws that deny some citizens the right to vote must meet what type of scrutiny?

A

strict scrutiny

law upheld if necessary to achieve a compelling government purpose

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27
Q

are at large elections constitutional?

A

yes unless there is proof of discriminatory purpose

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28
Q

what type of scrutiny is applies when election district lines are drawn based upon race?

A

strict scrutiny

law upheld if necessary to achieve a compelling government purpose

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29
Q

counting uncounted votes w/o standards in a presidential election violates what?

A

equal protection

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30
Q

is there a fundamental right to education?

A

no

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31
Q

when do you use equal protection analysis?

A

when the government draws distinctions b/t people

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32
Q

what are the 3 steps in an EPC analysis?

A
  1. what is the classification?
  2. what level of scrutiny should be applied?
  3. Does this law meet the level of scrutiny?
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33
Q

does the 14th amendment concerning equal protection apply to the fed gov?

A

no, state and local governments only (equal protection applies to the fed gov through the DPC of the 5th amendment)

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34
Q

In equal protection, what level of scrutiny is used when the government discriminates based on race or national origin?

A

strict scrutiny

law upheld if necessary to achieve a compelling government interest

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35
Q

what are the 2 ways a racial classification is proven?

A
  1. classification exists on the face of the law

2. the law is facially neutral but demonstrates a discriminatory impact and discriminatory intent

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36
Q

what level of scrutiny is applies to a government’s racial classification that benefits a race?

A

strict scrutiny

law upheld if necessary to achieve a compelling government purpose

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37
Q

can public school systems use race as a factor in assigning students to schools?

A

no unless strict scrutiny is met

38
Q

what level of scrutiny is used for an EPC challenge to a law using gender classification?

A

special intermediate scrutiny

The law will be upheld if it is exceedingly persuasive justification

39
Q

what type of scrutiny is applied when the government discriminates based on alienage classifications?

A

strict scrutiny

40
Q

in what instances is it permissible for the government to discriminate based on alienage classifications?

A
  1. voting
  2. jury service
  3. police officers
  4. teacher
  5. probation officer
41
Q

what level of scrutiny applies when the Congress specifically is discriminating against aliens?

A

rational basis (b/c congress has plenary power to regulate immigration)

42
Q

what level of scrutiny should be used for discrimination against undocumented alien children?

A

intermediate

law upheld if it is substantially related to an important government purpose

43
Q

what level of scrutiny is applied to discrimination against non-marital children

A

intermediate

law upheld if it is substantially related to an important government purpose

44
Q

what type of scrutiny is applied to review age discrimination?

A

rational basis

the law is upheld if it is rationally related to a legitimate government purpose

45
Q

what type of scrutiny is applied to review disability discrimination?

A

rational basis

the law is upheld if it is rationally related to a legitimate government purpose

46
Q

what type of scrutiny is applied to wealth discrimination?

A

rational basis

the law will be upheld if it is rationally related to a legitimate government purpose

47
Q

what type of scrutiny applies to economic regulations?

A

rational basis

the law will be upheld if it is rationally related to a legitimate government purpose

48
Q

what type of scrutiny applies to sexual orientation discrimination?

A

rational basis

the law will be upheld if it is rationally related to a legitimate government purpose

49
Q

content based restrictions on speech must meet which level of scrutiny?

A

strict

the law will be upheld if it is necessary to achieve a compelling government purpose

50
Q

content neutral laws that burden speech must meet which level of scrutiny?

A

intermediate

the law will be upheld if it is substantially related to an important government purpose

51
Q

court orders suppressing speech must meet what level of scrutiny?

A

strict

the law will be upheld if it is necessary to achieve a compelling government purpose

52
Q

when is a law considered unconstitutionally vague?

A

if a reasonable person cannot tell what speech is prohibited and what is allowed

53
Q

when is a law considered unconstitutionally overbroad?

A

when it regulates substantially more speech than the constitution allows to be regulated

54
Q

what type of words are automatically considered unconstitutionally vague and over broad?

A

fighting words

55
Q

when can the government regulate conduct that communicates?

A
  1. when it has an important interest unrelated to suppression of the message and
  2. if the impact on communication is no greater than necessary to achieve the government’s purpose
56
Q

is burning a cross protected speech?

A

yes unless it is done w/ intent to threaten

57
Q

are contribution limits in election campaigns constitutional?

A

yes

58
Q

are expenditure limits in election campaigns constitutional?

A

no

59
Q

is anonymous speech protected?

A

yes

60
Q

can speech by the government be challenged as violating the 1st amendment?

A

no

61
Q

is obscenity and sexually oriented speech protected by the 1st amendment?

A

no

62
Q

what is the 3 part test to whether speech is obscene?

A
  1. the material must appeal to the prurient interest
  2. the material must be patently offensive under the law prohibiting obscenity (i.e. law must describe what’s offensive)
  3. taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value
63
Q

may the government seize the assets of businesses convicted of violating obscenity laws?

A

yes

64
Q

when is profane and indecent speech not protected by the 1st amendment?

A

when it is used in broadcast media (free TV and radio) and in schools

65
Q

is advertising for illegal activity and false deceptive ads protected by the 1st amendment?

A

no

66
Q

can true commercial speech that inherently risks deception be prohibited? (i.e. not protected by the 1st amendment)

A

yes

67
Q

can the government prohibit accountants from in person solicitation?

A

no (but they can prohibit attorneys from in person solicitation)

68
Q

how can a P recover under defamation?

A

if the P is a public official or running for public office, the P can recover for defamation by proving falsity of the statement and actual malice

69
Q

if the P is a private figure and the matter is of public concern, that state may allow the P to recover for defamation by proving what?

A

falsity and negligence by the D. P may recover presumed or punitive damages only by showing actual malice

70
Q

If P is a public figure, what must P show to recover for defamation?

A

falsity of the statement and actual malice

71
Q

what is actual malice in terms of defamation?

A

D knew the statement was false or acted w/ reckless disregard of the truth

72
Q

If the P is a private figure and the matter is not of public concern, must P show actual malice in order to recover presumed or punitive damages on a defamation claim?

A

no

73
Q

is speech by government employees on the job in the performance of their duties protected by the 1st amendment?

A

no

74
Q

what is a public forum?

A

a government property that the government is constitutionally required to make available for speech

75
Q

what is a designated public forum?

A

government properties that the government could close to speech, but choose to open

76
Q

what is a limited public forum?

A

government properties that are limited to certain groups of dedicated to the discussion of only some subjects

77
Q

what is the level of scrutiny that must be satisfied for regulations on speech in public forums?

A

regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met

78
Q

what is the rule regarding regulation of speech in a designated public forum?

A

regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met

79
Q

what is a non public forum

A

government properties that the government constitutionally can and does close to speech

80
Q

what is the rule regarding regulation of speech in a non public forum?

A

the government can regulated speech in a non public forum so long as the regulation is reasonable and viewpoint neutral

81
Q

is the a 1st amendment right of access to private property for speech purposes?

A

no

82
Q

is the freedom of association a fundamental right?

A

yes

83
Q

what level of scrutiny is applies to laws that prohibit or punish group memebership

A

strict scrutiny

84
Q

what 3 things must happen for the government to punish membership in a group?

A
  1. actively affiliated w/ the group
  2. knowing of its illegal activities and
  3. with the specific intent of furthering those illegal activities
85
Q

can the free exercise clause be used to challenge a neutral law of general applicability?

A

no

86
Q

can the government deny benefits to individuals who quit their jobs for religious reasons?

A

no

87
Q

what is the establishment clause?

A

the government may make no law regarding the establishment of religion

88
Q

what is the 3 part test for when a law is unconstitutional under the free exercise clause?

A
  1. there must be a secular purpose for the law
  2. the effect must be neither to advance nor inhibit religion
  3. there must not be excessive entanglement w/ religion
89
Q

when can the government discriminate against religious speech or among religions?

A

when strict scrutiny is met

law is upheld if it is necessary to achieve a compelling government purpose

90
Q

can the government give assistance to parochial school?

A

yes, so long as the money is not used for religious instruction

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