Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Refresher > Conlaw > Flashcards

Conlaw Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

first amendment challenge

ROLE OF FEDERAL COURTS IN CONSTITUTIONAL CASES

A

first amendment challenge
ROLE OF FEDERAL COURTS IN CONSTITUTIONAL CASES

The plaintiff is asserting a First Amendment “facial challenge” to an overbroad law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

definition

FEDERALISM

A

= the relationship between the federal government and state government

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

3 perspectives

FEDERALISM

A
  1. federal laws
  2. state laws
  3. tax laws
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

flowchart

FEDERALISM

A

If the constitutionality of a statute is at issue, ask: is the statute state or federal?

FEDERAL = then ask 2 further questions

  1. Does the Constitution authorize Congress to regulate in this area?
  2. If so, does this particular statute offend any constitutional check on federal power?

STATE = then only ask 1 thing
1. Does this particular statute offend any constitutional check on state power?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

does the constitution authorize congress to regulate in this area?
(3 principles/takeaways)
FEDERAL LAWS // FEDERALISM

A
  • The federal government is a government of limited, enumerated powers.
  • The Constitution prescribes several “enumerated” areas in which Congress may regulate, the 7 most important of which are:
    1. Commerce Clause
    2. Spending Clause
    3. Taxing Clause
    4. War Powers
    5. Treaty Power
    6. Post-Civil War Amendments
    7. Property Clause
  • The following notably DON’T confer authority on the federal government to regulate
    1. Police Power
    2. General Welfare (EXCEPT in connection with the Spending Clause)
    3. Necessary & Proper Clause standing alone
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

congressional regulation of interstate commerce

FEDERAL LAWS // FEDERALISM

A

Under the commerce clause, congress may regulate

  1. Anything that crosses state lines (physically, electronically, or otherwise)
  2. Instrumentalities of interstate commerce (e.g., planes, trains, telephone calls, internet, etc.)
  3. Any “economic” or “commercial” activity that, in the aggregate, has a substantial effect on interstate commerce
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Aggregation principle

FEDERAL LAWS // FEDERALISM

A
  • Under this test, congress can regulate virtually any activity
  • Its power is plenary
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Commerce definition

FEDERAL LAWS // FEDERALISM

A

For purposes of the commerce clause, the term “commerce” includes “every species of commercial intercourse,” including transportation and traffic

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

limitations to aggregate test

FEDERAL LAWS // FEDERALISM

A
  1. applies only to activities that are “economic” or “commercial” in nature
  2. The commerce clause may not be used to compel persons to purchase an unwanted product
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

examples/non-examples of activities that are economic/commercial
FEDERAL LAWS // FEDERALISM

A
  1. A federal statute banning possession of guns in school zones is NOT economic in nature
  2. A federal statute creating a civil remedy for victims of gender-motivated violence is NOT economic in nature
  3. A federal statute criminalizing possession of marijuana is economic in nature
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

congressional regulation of foreign commerce

FEDERAL LAWS // FEDERALISM

A

Congress’ power to regulate foreign commerce = exclusive

AKA with few minor exceptions, states have no power to regulate or interfere with foreign commerce

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

2 key takeaways about the spending clause

FEDERAL LAWS // FEDERALISM

A
  1. congress may spend for the general welfare of the nation and to pay debts
    (NOTE = this is the only time congress may rely on the “general welfare” to act)
  2. The spending clause is an independent source of federal power AKA spending is not limited to the other enumerated powers
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

limitations on the spending clause

FEDERAL LAWS // FEDERALISM

A

the spending clause may be used to “regulate” (i.e., encourage) indirectly what Congress cannot regulate directly, subject to the following limitations

  1. The conditions imposed by Congress must be “RELATED” to the purpose of the program AND
  2. The federal state must give states a “GENUINE CHOICE” and not be unduly coercive
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

example of unduly coercive law enacted under spending clause
FEDERAL LAWS // FEDERALISM

A

a federal law that threatens to withhold 100% of federal Medicaid funds from states refusing to expand their Medicaid programs is unduly coercive because it does not give states a “genuine choice”)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

taxing clause

FEDERAL LAWS // FEDERALISM

A

for UBE purposes, congress may tax anything as long as the tax is reasonably related to raising revenue, regardless of any other motives congress may have had

EXAMPLE = to tax something out of existence

EXCEPTION = taxes that violate first amendment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

war powers

FEDERAL LAWS // FEDERALISM

A
  1. in the theater of war, congress’s powers are virtually unlimited
    BUT are shared with the president
  2. on the homefront, congress has significant power both during and after war to remedy the effects of war, including the economic effects
    (the commerce clause has probably superseded the war powers on the homefront)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

treaty power

FEDERAL LAWS // FEDERALISM

A
  • congress has the power to pass laws to enforce treaties
  • a treaty cannot confer on congress authority to act in a manner inconsistent with a specific provision of the constitution
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

2 key sections of post-civil war amendments

FEDERAL LAWS // FEDERALISM

A
  1. section 5 of the 14th Amendment

2. section 2 of the 13th Amendment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

section 5 of the 14th Amendment

FEDERAL LAWS // FEDERALISM

A

section 5 of the 14th Amendment authorizes congress to prohibit discrimination by state and local governments, but may NOT be used to regulate private discrimination

PRO TIP: section 5 of the 14th amendment is usually a wrong answer on the MBE
UNLESS the question is testing exceptions to the 11th Amendment OR the federal government is regulating PURELY state activities

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

section 2 of the 13th Amendment

FEDERAL LAWS // FEDERALISM

A

Section 2 of the 13th Amendment may be used to regulate ANY private discriminatory behavior if such behavior constitutes a “badge or incident” of slavery,
- such as refusing to
1. rent or sell property, or
2. contract with, or
3. admit a child to a private school, or
4. employ a person
because of race

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

commerce clause v. section 2 of the 13th amendment

FEDERAL LAWS // FEDERALISM

A

unlike the commerce clause, section 2 of the 13th Amendment does not require a showing that the discrimination has a “substantial effect” on interstate commerce

if congress passes a law prohibiting racial discrimination by private entities, the best constitutional authority for such state is usually the commerce clause
- if the commerce clause will not work, the section 2 of the 13th amendment is the best answer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

property clause

FEDERAL LAWS // FEDERALISM

A
  • authorizes congress to pass any laws relating to the ownership, transfer, disposal, or use of federal property (real, personal, intangible)
  • thus, congress has “police” powers in DC and federal parks, military bases, etc.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

assuming the federal government had authority to regulate in this field, does this particular statute offend any constitutional check on federal power?
(key checks on federal government)
FEDERAL LAWS // FEDERALISM

A

There are several checks on federal power in the constitution that apply to BOTH the federal government and state governments, including

  1. Due process clause
  2. Equal protection clause (via reverse incorporation)
  3. First amendment
  4. Takings clause

A couple of checks that apply ONLY to the federal government include

  1. 10th Amendment
  2. 11th Amendment
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

10th amendment general rule

FEDERAL LAWS // FEDERALISM

A
  • The 10th amendment provides that state governments have all power not conferred upon the federal government (nor prohibited to the states) by the Constitution
  • Today, the 10th Amendment is simply a truism
    AKA states have those powers not given to the federal government but since federal power has been construed so broadly, there is little left for the states

PRO TIP: Thus, the 10th amendment rarely limits congress’ power, and is usually a wrong answer on the MBE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

modern limits on congressional power under the 10th amendment
FEDERAL LAWS // FEDERALISM

A

There are 2 modern limits on congress’ powers under the 10th amendment (or federalism generally)

  1. NY v. US
  2. PRINTZ v. US
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

NY v. US’s limitation on 10th amendment

FEDERAL LAWS // FEDERALISM

A
  • the 10th Amendment bars Congress from ordering state legislatures to pass or not pass laws
    AKA Congress may not COMMANDER state legislatures and may not issue “DIRECT ORDERS” to state legislatures
  • BUT the federal could
    (a) pass the law itself, assuming it has such authority, which it often will OR
    (b) encourage the state to pass (or not pass) such laws under its spending power
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

example of congress commandeering/issuing “direct orders” to state legislatures
FEDERAL LAWS // FEDERALISM

A

a federal law prohibiting state legislatures from authorizing sports gambling schemes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

PRINTZ v. US’s limitation on 10th amendment

FEDERAL LAWS // FEDERALISM

A

10th Amendment bars Congress from compelling state executive officials (e.g., county sheriffs) to enforce federal laws
BUT the federal government could
(a) enforce the law itself OR
(b) encourage state officials to enforce such laws under its spending power

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

scope of modern limitations to congressional power under the 10th amendment
FEDERAL LAWS // FEDERALISM

A
  1. NY and PRINTZ are limited to federal mandates that apply only to state governments
    - In RENO, the Court upheld a law prohibiting states from selling DMV information because unlike the laws in NY and PRINTZ, this law
    (a) applies to both states AND private companies and
    (b) did not impose an AFFIRMATIVE burden on the states
  2. State courts, unlike state legislatures and executives, are bound to enforce federal law under the supremacy clause
    - Moreover, state courts must hear cases involving federal claims—they may NOT discriminate against actions brought to enforce federal law
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

11th amendment general rule

FEDERAL LAWS // FEDERALISM

A

State governments may not be sued for MONEY DAMAGES for federal claims

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

11th amendment key takeaways

FEDERAL LAWS // FEDERALISM

A
  1. a federal claim may not be brought against a state by
    (a) citizens of other states
    (b) citizens of that state
    (c) foreign citizens
  2. the 11th amendment (and state sovereign immunity) bars federal claims brought by these parties against a state in federal court, state court, or federal administrative tribunals
    (e. g. federal maritime commission)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

11th amendment exceptions

FEDERAL LAWS // FEDERALISM

A

times when federal claims may be brought against a “state”

  1. A suit for PROSPECTIVE injunctive relief against a state official in his or her official capacity including an order to pay—in the future—any money needed to comply with the injunction)
  2. Money damages may be sought from a state official personally, but not if such damages would be paid out of the state treasury
  3. The state expressly waives its sovereign immunity
  4. Suits brought by the U.S. or other states
  5. Congressional abrogation of state sovereign immunity
  6. Proceeding arising under federal bankruptcy law
  7. Counties, cities, etc. are not protected by the 11th Amendment and thus are subject to liability for federal claims
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Suits brought by the U.S. or other states
(11th amendment exceptions)
FEDERAL LAWS // FEDERALISM

A

A state may sue another state for money damages in an original action in the Supreme Court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Congressional abrogation of state sovereign immunity
(11th amendment exceptions)
FEDERAL LAWS // FEDERALISM

A
  • Congress may authorize private persons to sue state governments for money damages BUT only in some very limited circumstances
  • These suits may arise only out of congress’ power under section of the 14th amendment and for the UBE are probably limited to suits for racial or gender discrimination or access to courts by disabled individuals
  • Congress must make a “clear statement” of its intent to abrogate the 11th amendment
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

example of proceeding arising under federal bankruptcy law
(11th amendment exceptions)
FEDERAL LAWS // FEDERALISM

A

adversary proceeding brought by bankruptcy trustee to set aside alleged preferential transfers made to state agencies was not barred 11th Amendment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

what’s the ultimate inquiry if a state law is at issue?

STATE LAWS // FEDERALISM

A

If a state law is at issue, only one question need be asked

= is there a specific check in the Constitution prohibiting such a law?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

checks on state power

STATE LAWS // FEDERALISM

A

There are several checks on state power in the Constitution that apply to BOTH the federal government and the state governments, including the

  1. Due Process Clause
  2. Equal Protection Clause
  3. First Amendment
  4. Takings Clause

But there are several checks that apply ONLY to the state governments, namely:

  1. Supremacy Clause
  2. Dormant Commerce Clause
  3. Privilege and Immunities Clauses
  4. Contracts Clause
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

supremacy clause

STATE LAWS // FEDERALISM

A

AKA preemption issues

federal laws are superior to state laws

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

2 types of preemption

STATE LAWS // FEDERALISM

A
  1. express preemption

2. implied preemption

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

express preemption

STATE LAWS // FEDERALISM

A

= if a valid federal law expressly preempts state laws

Express preemption clauses are narrowly construed, particularly in areas traditionally regulated by states

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

implied preemption

STATE LAWS // FEDERALISM

A

= If a valid federal law impliedly preempts state laws because

  1. Impossibility preemption
  2. Obstacle preemption
  3. Field preemption
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Impossibility preemption

STATE LAWS // FEDERALISM

A

= It is impossible to comply with both the state and federal laws without violating one

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Obstacle preemption

STATE LAWS // FEDERALISM

A

= the state law is an obstacle to the objective of the federal law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Field preemption

STATE LAWS // FEDERALISM

A

Congress has impliedly taken over the entire field with a comprehensive law
Example = immigration

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

2 purposes of dormant commerce clause

STATE LAWS // FEDERALISM

A
  1. It is authority for Congress to pass laws regulating interstate commerce and
  2. It impliedly limits states’ authority to interfere with interstate commerce
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

dormant commerce clause analysis for state laws

STATE LAWS // FEDERALISM

A

A. does the state law discriminate in purpose or effect against interstate commerce or out-of-staters?
- If so = the state law is invalid

B. if the law is not discriminatory, the state law is valid unless it imposes an “undue burden” on interstate commerce

  • Test = a nondiscriminatory state law will be invalidated only if the local benefits are slight and the burden on interstate commerce is significant
  • Under this test, a court may invalidate a state law if
    a. There are alternatives that impose less burden on interstate commerce OR
    b. The law conflicts with the laws of other states (and thus there’s no national uniformity)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

2 examples of state discrimination in violation of the dormant commerce clause analysis
STATE LAWS // FEDERALISM

A

Examples = a state discriminates (and is invalid) if it

  1. hoards valuable things like jobs or natural resources
  2. insulates itself from regional or national problems like garbage, nuclear waste, competition
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

3 exceptions to the dormant commerce clause

STATE LAWS // FEDERALISM

A

A state (or local government) may discriminate in 3 instances:

  1. Congressional authorization
  2. Market participant
  3. Public entity
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

congressional authorization exception to dormant commerce clause
STATE LAWS // FEDERALISM

A

= Congress has authorized states to discriminate against interstate commerce

BUT congress may not authorize violations of other constitutional provisions, such as Article IV’s Privileges and Immunities Clause or the Equal Protection Clause

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

market participant exception to dormant commerce clause

STATE LAWS // FEDERALISM

A

= The state is a “market participant” as opposed to a market regulator

  • In such cases, a state may discriminate in favor its own residents
  • These are situations in which the state itself is the seller or provider or goods or services
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

example of market participant exception to dormant commerce clause
STATE LAWS // FEDERALISM

A

a state-owned cement plant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

2 limitations to the market participant exception to dormant commerce clause
STATE LAWS // FEDERALISM

A

the “market participant” exception does NOT authorize 2 things:

  1. State discrimination as to “fundamental rights”
    - EXAMPLES = private employment, practice of law, civil liberties
    - REASONING = because such discrimination violates Article IV’s Privileges and Immunities Clause
  2. States to impose discriminatory regulations in a downstream market
    - EXAMPLE = Alaska could not require buyers of Alaskan timber to process the timber in Alaska
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
53
Q

2 examples of public entity exception dormant commerce clause
STATE LAWS // FEDERALISM

A

= the state favors a public entity

EXAMPLES =

  1. A county ordinance requiring waste haulers collecting trash in that county to bring trash to state-created waste facility
  2. A state income tax exemption for income derived from in-state bonds, but not out-of-state bonds
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
54
Q

where is the privileges & immunities clause?

STATE LAWS // FEDERALISM

A

TRICK, THERE’S 2

  1. Article IV
  2. 14th Amendment
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
55
Q

what does the article iv privileges & immunities clause prevent?
STATE LAWS // FEDERALISM

A

This clause prevents discrimination by states against nonresidents as to “fundamental rights” relating to important commercial activities

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
56
Q

when will a state law be invalidated under the article iv privileges & immunities clause?
STATE LAWS // FEDERALISM

A

A state law discriminating against nonresidents with regard to such a “fundamental right” will be invalidated UNLESS the state shows a substantial justification for the discriminatory treatment and that there are no less discriminatory means to solve the problem

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
57
Q

3 examples of invalidated laws under the article iv privileges & immunities clause
STATE LAWS // FEDERALISM

A

the Article IV Privileges and Immunities Clause has been used to invalidate

  1. A state law charging nonresidents substantially more for a commercial fishing license than residents
    - BUT NOT a state law charging nonresidents substantially more for a recreational hunting license
  2. A state law requiring state residency to be a licensed to practice law in the state
  3. A state (or local) law requiring private employers to give hiring preference to state residents
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
58
Q

what does the 14th amendment privileges & immunities clause prohibit?
STATE LAWS // FEDERALISM

A

This clause prohibits states from denying their citizens the privileges and immunities of national citizenship

SUCH AS the right to interstate travel and the right to vote in federal elections

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
59
Q

what is a typical 14th amendment privilege & immunities clause issue?
STATE LAWS // FEDERALISM

A

This clause protects the right of newly arrived citizens to enjoy the same privileges and immunities that are enjoyed by long-term citizens of the state

EXAMPLE = It was used to invalidate a CA law limiting new residents for their first year of living in CA to welfare benefits they would have received in the state of their prior residence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
60
Q

what is not included in the definition of citizen in privileges & immunities clauses?
STATE LAWS // FEDERALISM

A

Corporations and aliens are NOT considered “citizens” for purposes of the privileges and immunities clauses

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
61
Q

contracts clause

STATE LAWS // FEDERALISM

A

= no state or local government shall impair the obligations of contracts

  • The Contracts Clause does NOT apply to the federal government
  • The Contracts Clause applies only to existing contracts, not future contracts or future profits
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
62
Q

contracts clause analysis for private contracts

STATE LAWS // FEDERALISM

A

If a state law impairs the obligations of a contract between 2 private parties, courts apply the following test:

(1) does the law “substantially” impair a party’s rights under an existing contract?
(2) if so, is the law a reasonable and appropriate means of promoting a significant and legitimate public purpose?

(This test is similar to the rational basis test, which means courts are similarly highly unlikely to invalidate a state law that impairs a private contract)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
63
Q

contracts clause analysis for public contracts

STATE LAWS // FEDERALISM

A

If a state law impairs a contract in which the state is a party, the law will be upheld only if it is

  • REASONABLE and
  • NECESSARY to serve
  • an IMPORTANT PUBLIC purpose

(This test is similar to strict scrutiny)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
64
Q

to whom does the ex post facto clause apply?

STATE LAWS // FEDERALISM

A

federal and state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
65
Q

what is an ex post facto law?

STATE LAWS // FEDERALISM

A

An ex post facto law imposes criminal punishment for an act that occurred before the law became effective

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
66
Q

when is the ex post facto clause violated?

STATE LAWS // FEDERALISM

A

The clause is also violated where the government

  1. prescribes greater punishment than was prescribed when the act was committed,
  2. reduces the evidence necessary for a conviction
  3. increases the statute of limitations for a crime, or
  4. retroactively reduces an inmate’s “good time” or “early release” credits
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
67
Q

to whom does the bill of attainder clause apply?

STATE LAWS // FEDERALISM

A

federal and state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
68
Q

what is a bill of attainder?

STATE LAWS // FEDERALISM

A

= a legislative act that inflicts punishment on named individuals or on easily identifiably members of groups

Examples of punishment = imprisonment, punitive confiscation of property, prohibition from employment or vocational opportunities

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
69
Q

3 key takeaways from the full faith & credit clause

STATE LAWS // FEDERALISM

A
  1. Final judgments on the merits rendered by a state court with jurisdiction MUST be recognized and enforced by other states as a matter of right
  2. A second court may not retry ANY matter, factual or legal, properly at issue in the first proceeding
  3. In other words, the first judgment serves as a bar to suits brought in other states
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
70
Q

to whom does the full faith & credit clause apply?

STATE LAWS // FEDERALISM

A

By its terms, the Full Faith and Credit Clause applies exclusively to states, but a federal statute requires recognition of judgments between state and federal courts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
71
Q

state regulation of federal government
re: intergovernmental taxes and regulations
TAX LAWS // FEDERALISM

A

A state has no power to regulate the activities of the federal government, unless Congress consents

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
72
Q

principles for state taxation of federal government
re: intergovernmental taxes and regulations
TAX LAWS // FEDERALISM

A

A state may not tax the federal government, including its land or instrumentalities

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
73
Q

test for unconstitutionality of state taxation of federal government
re: intergovernmental taxes and regulations
TAX LAWS // FEDERALISM

A

Test = if the money to pay a state tax comes out of the federal treasury, the state tax is unconstitutional

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
74
Q

2 exceptions for state taxation of federal government
re: intergovernmental taxes and regulations
TAX LAWS // FEDERALISM

A
  1. A state may impose non-discriminatory income taxes (i.e. the tax does not discriminate against persons employed by the U.S.) on the salaries of federal employees (paid by the employee)
  2. A private contractor working for the federal government can be compelled to pay state sales tax if the contractor is working on a cost-plus basis
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
75
Q

principle for federal laws
re: intergovernmental taxes and regulations
TAX LAWS // FEDERALISM

A

The federal government may tax or regulate state government activities
AS LONG AS the tax or regulation
applies to BOTH the private sector and public sector

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
76
Q

state taxes that discriminate against interstate commerce
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM

A

AKA a higher rate for interstate commerce than for intrastate commerce
= violate the dormant commerce clause (and thus are unconstitutional) UNLESS such discrimination has been approved by congress

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
77
Q

2 examples of state taxes that discriminate against interstate commerce
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM

A
  1. use tax

2. income taxes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
78
Q

what are constitutional limitations/requirements on imposing a use tax?
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM

A

if a state imposes a use tax, the rate cannot exceed the state’s sales tax and a credit must be given for the sales tax paid in the other state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
79
Q

what are constitutional limitations/requirements on imposing an income tax?
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM

A

residents who pay taxes in another state for income earned in that state must be given a credit against state AND local income taxes in their home state to avoid double taxation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
80
Q

constitutional limitations nondiscriminatory taxes
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM

A

= a state may tax interstate commerce and interstate businesses IF

  1. There’s a SUBSTANTIAL NEXUS btwn the activity/property taxed and the state
  2. The tax must be FAIRLY APPORTIONED
  3. The tax must be FAIRLY RELATED to the services or benefits provided by the state
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
81
Q

how is a substantial nexus established in the nondiscriminatory taxes analysis?
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM

A

such a nexus is established when the taxpayer avails itself of the privilege of carrying on business in that jurisdiction, including a significant quantity of internet sales

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
82
Q

when is a tax fairly apportioned in the nondiscriminatory taxes analysis?
re: state taxation of interstate commerce
TAX LAWS // FEDERALISM

A

the tax should be based on the extent of the taxable activity or property in the state
(otherwise, the taxpayer would be subject to multiple taxation)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
83
Q 
THE BASICS
5 topics (+ pro tip)

[separation of powers]

A
  1. Executive powers (generally)
  2. Foreign affairs
  3. Checks on the president’s powers
  4. President’s pardon power
  5. Speech and debate clause

Pro tip = separation of powers questions are usually issue-specific and are modeled after actual SC cases

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
84
Q

test for issue of whether the president have the power to make law
(general rules for executive powers)
SEPARATION OF POWERS

A

If the president is legislating (i.e., issuing executive orders affecting a private person’s legal rights), use the following test:

  1. if Congress has explicitly or implicitly approved the president’s action, the president has the full power of federal government to make law
  2. if Congress has been silent on the issue, the president may be able to make law, depending on history and tradition (i.e., have prior presidents taken such actions without Congressional approval?)
  3. if Congress has disapproved the president’s action (e.g., by rejecting a similar statute), the president may rely only on his own constitutional power to make laws; in such cases, the president’s action is probably unconstitutional
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
85
Q

rule for impoundment of funds
(general rules for executive powers)
SEPARATION OF POWERS

A

If Congress “directs” the president to spend money on a project, the president must spend the money; in other words, the President does not have authority to “impound” funds Congress has ordered spent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
86
Q

5 key issues
(special rules for executive powers)
SEPARATION OF POWERS

A
  1. May congress increase the executive’s power to make law?
  2. Legislative vetoes
  3. Line-item veto
  4. Appointment of executive officials
  5. Removal of executive officials
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
87
Q

May congress increase the executive’s power to make law?
(special rules for executive powers)
SEPARATION OF POWERS

A

Congress may delegate law-making power to the executive branch as long as it establishes some standard for such decision-making

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
88
Q

Definition of legislative veto
(special rules for executive powers)
SEPARATION OF POWERS

A

A legislative veto occurs when Congress delegates law-making authority to the executive branch, but keeps the power to overrule the executive by a one-house or two-house or committee veto

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
89
Q

Rule for legislative veto
(special rules for executive powers)
SEPARATION OF POWERS

A

Legislative vetoes are unconstitutional under the Bicameral Clause and/or the Presentment Clause

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
90
Q

Rule for line-item veto
(special rules for executive powers)
SEPARATION OF POWERS

A

A federal statutory line-item veto is unconstitutional

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
91
Q

Example of principal officers
(special rules for executive powers)
SEPARATION OF POWERS

A

Cabinet members

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
92
Q

Rule for appointment of principal officers
(special rules for executive powers)
SEPARATION OF POWERS

A

The president nominates and the senate confirms

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
93
Q

Definition of inferior officers
(special rules for executive powers)
SEPARATION OF POWERS

A

= positions created by congress

such as the independent counsel

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
94
Q

2 rules for appointment of inferior officers
(special rules for executive powers)
SEPARATION OF POWERS

A
  1. Congress may give the appointment power to president alone, a department head, or the courts
  2. Although Congress may appoint its own officers to carry on internal legislative tasks, Congress may NOT appoint anyone with administrative, enforcement, regulatory, or executive duties
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
95
Q

General rule for removal of executive officials
(special rules for executive powers)
SEPARATION OF POWERS

A

Congress may require the president to have “good cause” to fire an employee of the executive branch if the position requires some independence from the president
(e.g., an independent counsel or a person who has quasi-judicial duties)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
96
Q

Exception for removal of executive officials
(special rules for executive powers)
SEPARATION OF POWERS

A

Congress may not retain the power to remove an executive official; it only has impeachment power

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
97
Q

2 issues
(foreign affairs)
SEPARATION OF POWERS

A

2 issues

  1. Treaties and executive agreements
  2. War powers
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
98
Q

process for treaties
(foreign affairs)
SEPARATION OF POWERS

A

Treaties are signed by the president and ratified by the senate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
99
Q

hierarchy for treaties and executive orders, etc.
(foreign affairs)
SEPARATION OF POWERS

A

If laws are in conflict, the following preeminence governs:

  1. U.S. Constitution
  2. Federal statutes/treaties (last-in-time controls)
  3. Federal executive agreements/order
  4. Federal regulations
  5. State laws
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
100
Q

executive agreements
(foreign affairs)
SEPARATION OF POWERS

A
  • President may use executive agreements as substitutes for treaties
  • No senate ratification is required, and the president may use these agreements as the basis for issuing executive orders (domestic regulation)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
101
Q

power to recognize foreign states
(foreign affairs)
SEPARATION OF POWERS

A
  • The power to recognize foreign states lies exclusively the president
  • The president and his subordinates are the exclusive official representatives of the U.S. in foreign affairs
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
102
Q

war powers
(foreign affairs)
SEPARATION OF POWERS

A

The war powers are shared between the president and congress

  • Congress declares war and allocates money for the military
  • The president alone controls troops and deployment
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
103
Q

3 issues
(checks on the president’s powers)
SEPARATION OF POWERS

A
  1. Criminal prosecutions
  2. Civil actions
  3. Impeachment
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
104
Q

immunity in criminal prosecutions
(checks on the president’s powers)
SEPARATION OF POWERS

A

The president is probably immune from criminal prosecution while in office

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
105
Q

executive privilege in criminal prosecutions
(checks on the president’s powers)
SEPARATION OF POWERS

A

the president’s communications and papers are presumptively privileged
BUT the president must comply with subpoenas from criminal courts or grand juries

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
106
Q

immunity in civil actions
(checks on the president’s powers)
SEPARATION OF POWERS

A
  1. The president has absolute immunity from civil liability for claims (at least those arguably based on official actions) arising while in office
  2. President aids and advisors have a qualified immunity from civil damages
    - Such immunity will not protect them for violations of clearly established constitutional rights
  3. The president is subject to civil liability for claims arising prior to taking office
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
107
Q

impeachment
(checks on the president’s powers)
SEPARATION OF POWERS

A
  1. The president, vice-president, judges, and “officers” of the U.S. may be impeached
  2. The house “impeaches” (i.e., indicts) by a majority vote
  3. The senate convicts by a 2/3 vote
  4. Impeachment may be for high crimes, misdemeanors or treason, but these terms are defined exclusively by Congress, and such issues are political questions
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
108
Q

president’s pardon power

SEPARATION OF POWERS

A
  1. The president has the power to pardon and commute sentences for federal crimes BUT not state crimes or civil liability
  2. The president’s pardon power may NOT be limited by Congress
  3. The president may not pardon a person for “crimes” for which he or she has been “impeached”
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
109
Q

speech and debate clause

SEPARATION OF POWERS

A
  1. The Speech and Debate Clause protects members of the U.S. Congress from criminal or civil liability for all statements (oral or written) they make in the House or Senate
  2. The immunity extends to aides who engage in acts that would be immune if performed by the member of Congress

2 EXCEPTIONS

  1. The Speech or Debate Clause does not extend to state legislators
  2. Speeches and publications made outside of the House or Senate are not protected
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
110
Q

what does this topic cover?

INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

the relationship between governments and individuals

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
111
Q

3 basic principles

INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • The U.S. Constitution contains numerous provisions designed to protect individual civil liberties
  • Before examining particular provisions, 2 issues must be resolved
    1. Who is bound by these constitutional provisions?
    (AKA “State action” doctrine)
    2. do these provisions apply to all governments—federal, state, and local?
    (AKA “incorporation”)
  • U.S. constitution sets a minimum level of protection for individuals
    (states are usually free to grant broader protections)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
112
Q

example of state granting broader protection than federal constitution
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

a state may require large private shopping centers to permit persons to exercise free speech rights on shopping center property

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
113
Q

2 general principles
(state action doctrine)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • The Constitution applies only to government ACTION (AKA doesn’t apply to government inaction)
  • Also the Constitution generally does not apply to the actions or inactions of private individuals and companies
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
114
Q

Instances where private individuals and companies will be considered “state actors” subject to the 14th amendment
(state action doctrine)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. if a private person or company is performing a traditional, EXCLUSIVE government function
  2. the government AFFIRMATIVELY authorizes, encourages, or facilitates an unconstitutional activity
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
115
Q

example of when a private person or company is performing a traditional, EXCLUSIVE government function
(state action doctrine)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

operating a company town or conducting a primary election

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
116
Q

4 examples of when government AFFIRMATIVELY authorizes, encourages, or facilitates an unconstitutional activity
(state action doctrine)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. court enforcement (equitable or legal) of a racially restrictive covenant in a deed or lease
  2. preemptory challenges (civil and criminal)
  3. the government leases space to a business that discriminates
  4. a private association that regulates high school athletics with mostly government members and funding
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
117
Q

6 examples of when a private company or association will NOT be considered a “state actor”
(state action doctrine)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. The government provides its funding, even 99% of its funding
  2. The government has licensed the company
  3. The government has approved the company’s name and charter
  4. The association has government members
  5. The government regulates the company
  6. The company is working under a government contract
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
118
Q

incorporation

INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

To whom does the Bill of Rights apply?

  • By its terms, the Bill of Rights applies only to the federal government.
  • The Supreme Court, however, has held that all of the Bill of Rights have been incorporated into the 14th Amendment and thus made applicable to state and local governments, except for the:
    1. Fifth Amendment’s right to a grand jury in a criminal case
    2. Seventh Amendment’s right to a jury in a civil case
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
119
Q

What are the constitutional areas in which understanding the levels of scrutiny is essential?
(scrutiny)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. Due Process Clause
  2. Equal Protection Clause
  3. First Amendment
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
120
Q

3 levels of scrutiny
(scrutiny)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. Rational basis test
  2. Intermediate scrutiny
  3. Strict scrutiny
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
121
Q

The Rational Basis Test
(scrutiny)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • the CHALLENGER must prove that the law
  • is not RATIONALLY RELATED
  • to ANY LEGITIMATE (aka permissible) government purpose (actual or conceivable)

(this is the default test in due process and equal protection cases)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
122
Q

in what cases is rational basis test the default test?
(scrutiny)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

in due process and equal protection cases

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
123
Q

Intermediate Scrutiny
(scrutiny)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • the GOVERNMENT must prove that the law
  • is SUBSTANTIALLY RELATED
  • to an IMPORTANT government interest
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
124
Q

Strict Scrutiny
(scrutiny)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • the GOVERNMENT must prove that the law
  • is NECESSARY (or NARROWLY TAILORED)
  • to achieve a COMPELLING government interest
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
125
Q

2 due process clauses in the constitution
(due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. 5th amendment
  2. 14th amendment

(the two clauses have been construed identically)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
126
Q

5th amendment DP clause
(due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Applies to the federal government

construed identically with 14th amendment DP clause

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
127
Q

14th amendment DP clause
(due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Applies to state and local governments

construed identically with 5th amendment DP clause

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
128
Q

2 parts of due process
(due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. Procedural due process

2. Substantive due process

129
Q

What does procedural due process require?
(due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

requires the government to use a fair process and procedures before depriving an individual of life, liberty, or property

130
Q

What does substantive due process require?
(due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

designed to ensure that laws are reasonable and not arbitrary

131
Q

2 principles of procedural due process
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. Before the government may deprive an individual of liberty or property, the government must give the person NOTICE of termination and some form of a HEARING
  2. There is a right to procedural due process only when the government deprives an INDIVIDUAL of liberty of property

(there is no such right when the government acts general, like by changing the eligibility requirements for welfare benefits)

132
Q

Liberty definition
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Freedom from confinement

133
Q

Property definition/examples
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. Government job
  2. Government benefits
  3. Government license
134
Q

Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. welfare benefits = notice and an evidentiary hearing prior to termination
  2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
  3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
  4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
  5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
  6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
  7. termination of business license = pre-termination notice and some form of fair hearing
135
Q

Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. welfare benefits = notice and an evidentiary hearing prior to termination
  2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
  3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
  4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
  5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
  6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
  7. termination of business license = pre-termination notice and some form of fair hearing
136
Q

Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. welfare benefits = notice and an evidentiary hearing prior to termination
  2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
  3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
  4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
  5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
  6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
  7. termination of business license = pre-termination notice and some form of fair hearing
137
Q

Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. welfare benefits = notice and an evidentiary hearing prior to termination
  2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
  3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
  4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
  5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
  6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
  7. termination of business license = pre-termination notice and some form of fair hearing
138
Q

Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. welfare benefits = notice and an evidentiary hearing prior to termination
  2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
  3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
  4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
  5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
  6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
  7. termination of business license = pre-termination notice and some form of fair hearing
139
Q

Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. welfare benefits = notice and an evidentiary hearing prior to termination
  2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
  3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
  4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
  5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
  6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
  7. termination of business license = pre-termination notice and some form of fair hearing
140
Q

Examples of the process due in 7 particular cases
(procedural due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. welfare benefits = notice and an evidentiary hearing prior to termination
  2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term
  3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required)
  4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond
  5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer
  6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard
  7. termination of business license = pre-termination notice and some form of fair hearing
141
Q

3 principles for fundamental rights
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • If a law directly and substantially impairs a “fundamental right,” the court will apply Strict Scrutiny and the law will probably be invalidated
  • Fundamental rights are those rooted in the history and traditions of America
  • They include not only those rights enumerated in the Bill of Rights, but also certain implied privacy rights
142
Q

11 implied privacy rights included as fundamental rights
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. the right to control the education and upbringing of one’s children
  2. the right to acquire and use contraceptives (regardless of age)
  3. the right to marry (including same-sex marriages)
  4. the right to procreate (i.e., thus, no forced sterilization)
  5. the right to custody of one’s children (e.g., a grandparent visitation law has been found to violate this right)
  6. the right of family members to live together (includes extended family, but not unrelated persons)
  7. the right of a competent adult to refuse life sustaining medical treatment, hydration, and food
  8. right to engage in adult, consensual, non-commercial sex in one’s home

BONUS FACTS

  • a state may require clear and convincing evidence of the patient’s intent to refuse life sustaining medical treatment, hydration, and food
  • there is no right to commit suicide or for assistance to commit suicide
  • a state may force parents to obtain medical care for children
143
Q

Abortion analysis
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Although a woman has a constitutional right to decide to terminate a pregnancy, that right is subject to its own form of scrutiny:

  1. Test for PRE-viability regulations = does the regulation impose an UNDUE BURDEN (AKA a substantial obstacle) on the woman’s right
  2. Test for POST-viability abortions = a state may ban such abortions, as long as there are exceptions for abortions NECESSARY TO PROTECT THE LIFE/HEALTH of the mother

NOTE: there is no right to government-subsidized abortions, and there is no requirement that public hospitals perform abortions

144
Q

Abortion regulations that impose an undue burden
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. a spousal consent or notification requirement
  2. requirement that doctor have “admitting privileges” at nearby hospital
  3. requirement that clinics have hospital-grade facilities
145
Q

abortion regulations that don’t impose an undue burden
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. 24-hour waiting period
  2. requirement that abortions be performed by a licensed physician
  3. parental notice/consent for a minor’s abortion, if the law contains a judicial bypass
146
Q

Default rule for substantive due process
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

If the government regulation does not interfere with a fundamental right (or abortion), the regulation will be subject to the RATIONAL BASIS test (thus will probably be upheld)

Exception = “Grossly excessive” punitive damage awards violate the Due Process Clause

147
Q

Grossly excessive punitive damages
(substantive due process)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Punitive damages that exceed compensatory damages by a ratio of more than 9:1 are probably “grossly excessive”
  • Punitive damages are less likely to be found excessive if the defendant committed an intentional or reckless tort causing serious personal injuries
148
Q

2 fundamental rights protected by the equal protection clause
(equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. Right to vote

2. Right to travel

149
Q

Principles for right to vote
(right to vote // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • There is a fundamental right to vote in national, state, and local elections
  • restrictions on voting, other than those based on age (18), residency, and citizenship, are generally invalid
150
Q

Invalid restrictions on right to vote
(right to vote // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. a requirement that voters have children in order to vote in a school board election
  2. poll taxes or educational requirements
  3. property ownership (except for “water district” elections)
151
Q

Valid restrictions on right to vote
(right to vote // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. presentation of government-issued photo I.D.

2. proof of residency for a short period (e.g., 30 days)

152
Q

one person-one vote rule
(right to vote // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

(e. g., the seats in both houses of a state legislature must be apportioned on a population basis)
- appointments of officials and at-large elections are valid as long as not used to suppress minority voting power
- racial gerrymandering must meet strict scrutiny if race was a “predominant factor” in drawing the district’s lines
- states may measure districts by counting “total population” instead of eligible voters

153
Q

ballot fees and restrictions
(right to vote // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Ballot fees and restrictions are subject to strict scrutiny
  • Filing fees—even if reasonable in amount—must be waived for indigent candidates
154
Q

racial restrictions
(right to vote // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Racial restrictions on voting are invalid under the 15th Amendment
  • The 15th Amendment requires proof of “purposeful intent” to discriminate on the basis of race
155
Q

3 principles
(right to travel // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • There is a fundamental right to travel interstate and to be treated like a long-term resident once becoming a permanent resident of a state
  • Laws that prohibit entering or leaving a state must meet strict scrutiny
  • Benefits that distinguish between long-term and short-term residents are subject to strict scrutiny (and probably also violate the 14th Amendment’s Privileges and Immunities Clause)
156
Q

Durational residency requirements
(right to travel // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Durational residency requirements are subject to strict scrutiny, but some have been upheld:

  1. one year for welfare benefits = invalid
  2. one year for subsidized medical care = invalid
  3. one year to vote = invalid
  4. one year for a divorce = valid
  5. one year for reduced tuition at public universities = valid
157
Q

Federal restrictions on international travel
(right to travel // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Subject only to rational basis test

158
Q

2 principles
(access to courts // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Laws denying indigents access to the courts where some fundamental liberty interest is at stake have been invalidated
  • But courts have upheld fees where no fundamental liberty interest was at stake
159
Q

4 examples of invalidated court fees
(access to courts // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. the fee for a trial transcript, which was necessary for a convicted criminal to appeal
  2. the filing fee required to initiate divorce proceedings
  3. the fee charged for blood tests in paternity proceedings
  4. the fee to prepare the appellate record in a termination of parental rights action
160
Q

2 examples of upheld court fees
(access to courts // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. the fee for filing a bankruptcy petition

2. the fee to secure review of eligibility for welfare benefits

161
Q

4 principles for classifications
(classifications // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • The Equal Protection Clause guarantees that similarly situated persons will be treated alike.
  • If a law purposely discriminates against a group, the law will be subject to the equal protection clause of the 14th Amendment or the due process clause of the 5th Amendment for the federal government (i.e., reverse incorporation).
  • If the law does not “purposely” discriminate, it will be subject to the rational basis test.
  • The level of scrutiny to apply will depend on what group is being singled out
162
Q

3 classifications for equal protection
(classifications // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. suspect classes
  2. quasi-suspect classes
  3. all other classifications
163
Q

Basic principles
(suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Discrimination in favor of or against suspect classes is subject to strict scrutiny and will rarely be upheld.
  • There are three suspect classes:
    1. Race
    2. National origin (ancestry)
    3. Alienage (sometimes)
164
Q

Alienage
(suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

laws that treat documented residents (legal residents who are not U.S. citizens) differently than U.S. citizens are sometimes subject to strict scrutiny

165
Q

federal laws on alienage
(suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Rational Basis Test only

166
Q

state laws on alienage
(suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

get strict scrutiny

EXCEPTIONS = state laws concerning self-government and the democratic process are subject to the Rational Basis Test

167
Q

Examples of state laws on alienage subject to strict scrutiny
(suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

state laws requiring U.S. citizenship to practice law, become an engineer, receive welfare benefits, qualify for civil service jobs, or receive a notary public license

168
Q

Examples of state laws on alienage subject to rational basis test
(suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Laws concerning voting, jury duty, elective office, police officers
  • Laws concerning public school teachers, probation officers
169
Q

basic principles
(quasi-suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Discrimination in favor of or against quasi-suspect classes is subject to intermediate scrutiny and will rarely be upheld
  • there are two quasi-suspect classes:
    1. gender
    2. non-marital children
170
Q

analysis for gender classification
(quasi-suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • the government must show an “exceedingly persuasive justification” for laws that intentionally discriminate based on traditional stereotypes
  • But laws designed to remedy past discrimination against women (e.g., different methods used to calculate social security benefits or different periods for military promotions) are valid
171
Q

analysis for non-marital children classification
(quasi-suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

A law that treats non-marital children (i.e., those born out of wedlock) differently than marital children is subject to intermediate scrutiny

172
Q

example of valid law for non-marital children classification
(quasi-suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

a law that requires non-marital children to prove paternity before inheriting from their father is valid, because it treats some non-marital children (i.e., those that can prove paternity) the same as marital children

173
Q

example of invalid law for non-marital children classification
(quasi-suspect classes // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

a law that prohibits all non-marital children from inheriting from their fathers, but allows all marital children to so inherit

174
Q

Basic principles
(all other classifications // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Except for classifications based on suspect or quasi-suspect classes, all other classifications are subject to the Rational Basis Test, and thus will generally be upheld
  • This includes classifications based on age, wealth, education, disabilities, etc.
  • Such classifications, however, must be based on “LEGITIMATE” government interests
175
Q

What is not a legitimate government interest?
(all other classifications // equal protection)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

The Court has held that irrational prejudice, societal fear, or the desire to harm a politically unpopular group is not a “legitimate” government interest.

Examples = gay men, mentally retarded adults, children of illegal aliens, hippies

176
Q

2 principles
(takings clause)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Federal, state, and local governments usually have eminent domain power.
  • Governments may take private property for public use, but the private landowner is entitled to just compensation.
177
Q

What can be the subject of a taking?
(takings clause)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Real property, personal property, and intangibles may be the subject of a “taking.”

178
Q

What does the second amendment guarantee?
(second amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

The Second Amendment guarantees the right to purchase, carry, and use typical weapons (e.g., handguns) for the purpose of self-defense

179
Q

What does the second amendment not guarantee?
(second amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

The Second Amendment does not guaranty the right to carry “dangerous or unusual weapons.”

180
Q

Level of scrutiny for gun control laws
(second amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Gun control laws are subject to at least intermediate scrutiny.

181
Q

Does the second amendment apply to state and/or local governments?
(second amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

The Second Amendment’s right to keep and bear arms applies to state and local governments via the 14th Amendment.

182
Q

What 3 things does the First Amendment prohibit Congress from doing?
(first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. Making any law abridging the freedom of speech or the press
  2. Making any law abridging the freedom of religion (Free Exercise Clause)
  3. Establishing a religion (Establishment Clause)
183
Q

To whom does the First Amendment apply?
(first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

The restrictions apply to state and local governments via the 14th Amendment

184
Q

content-based v. content-neutral
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Key inquiry = does the law regulate the “content” of the speech or is it “content-neutral”?
  • If the law regulates the content of the speech, the law must satisfy STRICT scrutiny.
  • By contrast, content-neutral regulations are subject only to INTERMEDIATE scrutiny (i.e., narrowly tailored to a significant government interest)
185
Q

Example of content-neutral regulation
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

no amplified music after 10:00 p.m. or no loud speakers

186
Q

2 types of laws that are “content-based”
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. those that discriminate on the basis of subject matter
    (example = “all picketing is banned except for labor picketing”)
  2. those that discriminate on the basis of viewpoint
    (example = “all picketing is banned except for pro-labor picketing”)
187
Q

5 categories of unprotected or less protected speech
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. Clear and present danger
  2. Threats and fighting words
  3. Obscenity, pornography, and profanity
  4. Defamation
  5. Commercial speech

= may be regulated or banned based on content
(other than these categories, all other content-based regulations are subject to strict scrutiny)

188
Q

speech that presents a clear and present danger
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

speech may be banned where it

  1. is directed (i.e., INTENDED) to produce or incite
  2. IMMINENT lawless action, and
  3. is LIKELY to produce or incite such action

(however, most statutes attempting to ban such unprotected speech are unconstitutionally overbroad and/or vague)

189
Q

Definition of “true threats”
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

statements meant to communicate an intent to place an individual or group in fear of bodily harm

190
Q

Examples of “true threats”
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

speech that willfully threatens the life of the president or cross burning with the intent to intimidate

191
Q

Rule for threats
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

TRUE threats not protected by the First Amendment

192
Q

Definition of fighting words
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

speech personally directed to a specific listener or group that is likely to incite a physical retaliation

193
Q

Examples of fighting words
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

a direct personal insult or an invitation to exchange fisticuffs

194
Q

Rule for fighting words
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • speech personally directed to a specific listener or group that is likely to incite a physical retaliation may be banned.
  • but for the past 50 years, all fighting words laws have been found to be either unconstitutionally vague (e.g., laws prohibiting “offensive, annoying, or abusive” language) OR not view-point neutral (laws prohibiting various types of hate speech)
195
Q

obscenity definition
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Obscenity is defined as a depiction of sexual conduct that,
taken as a whole,
by an average adult,
applying contemporary community (state or local) standards:
1. appeals to the prurient (i.e., shameful or morbid) interest in sex;
2. portrays sex in a patently offensive way that is specifically defined by state (or federal) law; AND
3. does not, taken as a whole, have serious literary, artistic, political, or scientific value, using a national reasonable person standard

196
Q

obscenity protection
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • obscenity is not protected by the First Amendment
  • BUT the government may not ban material suitable for adults solely to protect children (e.g., banning “indecent” speech on the Internet to protect minors is invalid because it amounts to a total ban for adults)
  • private possession of obscenity is protected by the First Amendment (but private possession of child pornography is not)
197
Q

pornography protection
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • child pornography (even private possession) is not protected
    = material depicting sexual conduct involving actual minors may be completely banned, even if not “obscene”
  • adult pornography—as opposed to obscenity—is protected speech
198
Q

adult entertainment establishments
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Adult book stores, adult theaters, and strip joints may be limited to a particular part of the city by zoning ordinances if
  • the law is designed to promote a legitimate local interest (e.g., protect residential character of neighborhood, avoid crime or parking problems) and
  • the law does not prohibit all such entertainment in the community (a zoning law may limit it to a very small part of the city)
199
Q

profanity
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Profane and indecent language is generally protected by the First Amendment.

EXCEPTIONS = broadcast media (but not cable or the Internet) and public schools (K-12)

200
Q

defamatory speech protection
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Defamatory speech is not protected by the First Amendment
  • Laws punishing false statements that do not constitute defamation or commercial speech (e.g., wearing unauthorized military medals) are subject to strict scrutiny (because they are content-based) and will rarely be upheld
201
Q

media liability for privacy torts/crimes
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

The media may not be subject to criminal OR civil liability for publishing truthful information about a public matter (e.g., rape victim’s name) that was either

a. lawfully obtained (e.g., from court records) OR
b. illegally obtained by someone other than the media

202
Q

who has a constitutional right to government information?
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

TRICK. NO ONE.

Neither the public nor the press has a constitutional right
a. to government information OR
b. to attend federal government meetings, etc.,
EXCEPT for criminal trials (all important parts of a criminal trial must be open to the public and the press)

203
Q

2 principles for commercial speech
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • False, misleading, and deceptive commercial speech, as well as the advertisement of illegal activities, may be banned
  • All other commercial speech is protected by the First Amendment and may be regulated only if the government satisfies a test similar to Intermediate Scrutiny
    = AKA the government shows that the law directly advances a SUBSTANTIAL INTEREST and is no more extensive than NECESSARY
204
Q

5 types of laws that have been invalidated under general commercial speech test
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. total or near total bans on the advertisement of legal products or services, such as abortions, contraceptives, prescription drug prices, alcohol prices, alcohol content
  2. laws banning news racks for “commercial” publications, but allowing news racks for newspapers
  3. laws banning tobacco ads within 1000 feet of schools
  4. laws banning “for sale” signs on real estate
  5. laws banning in-person solicitation by accountants
205
Q

example of false, misleading, and deceptive commercial speech
(free speech - content-based // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Under this rule, a state may ban attorney in-person solicitation of fee-paying clients and contact with accident victims within 30 days of an accident.

206
Q

Analysis
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

If a question involves a person or group wishing to use government property for speech, one must determine what type of property is at issue, as that will determine the test to apply.

207
Q

Public forums definition
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

These include major sidewalks, streets, and parks

208
Q

Public forums analysis
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

For the government to regulate speech in such public forums, the regulation must be

  1. content-neutral,
  2. a reasonable time, place and manner restriction,
  3. narrowly tailored to serve a significant (or substantial) government interest, AND
  4. must leave open alternative channels of communication

(The government is NOT required to use the least restrictive means of accomplishing its goals)

209
Q

Content-based restrictions in public forums
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

In a public forum, content-based restrictions on speech must survive strict scrutiny

210
Q

Designated (unlimited) public forums
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

These are non-public forums that the government has opened by policy or practice to speech

211
Q

Rules for designated (unlimited) public forums
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Designated public forums are subject to the same rules as public forums
BUT the government may close the property entirely at any point

212
Q

Example of designated (unlimited) public forums
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

if a high school opens its classroom after hours to community groups, it must allow access to all groups, including religious groups (i.e., it must be content-neutral)

213
Q

Non-public forums
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • All other government property is non-public.
  • The government may regulate speech in non-public forums if the regulation is
    1. viewpoint neutral, AND
    2. reasonably related to a legitimate government purpose
214
Q

Examples of non-public forums
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. military bases
  2. schools
  3. government workplaces
  4. courthouses (and grounds)
  5. prisons and jails (and grounds)
  6. post office sidewalks
  7. street signs, etc. (no right to post signs)
  8. airport terminals
  9. political debates on public television
  10. ad space on city buses
  11. government radio stations
  12. polling places on election day
215
Q

Limited public forum definition
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

A limited public forum arises when the government opens a non-public forum but limits the expressive activity to certain groups or to certain subjects

216
Q

Limited public forum examples
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

state university meeting facilities available for student groups or open school board meetings

217
Q

Limited public forum definition
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Limited public forums are subject to the same test as non-public forums

218
Q

3 special rules for government property
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. Public schools (K-12)
  2. Government workplace
  3. Prisons
219
Q

Public Schools (K-12)
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Public school students do not lose all free-speech rights at school
  • However, school officials may ban student speech that they reasonably forecast will cause a substantial disruption to school activities
  • School officials must have a specific, articulable reason for forecasting the disruption; they cannot rely on undifferentiated fear or apprehension of disturbance
220
Q

What types of speech can school officials ban or control?
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • School officials may also ban speech that is vulgar or lewd or speech that promotes (explicitly or implicitly) the illegal use of drugs.
  • School officials may also control school-sponsored speech (e.g., school newspaper) if the control reasonably relates to a legitimate pedagogical concern
221
Q

Speech in government workplace made pursuant to an employee’s official duties
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

If the speech is made pursuant to an employee’s official duties, a government employer may punish the employee for such speech, even if it involves a matter of public concern

222
Q

Speech in government workplace not made pursuant to an employee’s official duties
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

If the speech is not made pursuant to the employee’s official duties, the following tests apply:

  1. If the speech does not involve a matter of public concern, the government may punish the employee if the speech was disruptive to the work environment.
  2. If the speech involves a matter of public concern, the court will balance the employee’s right as a citizen to comment on a matter of public concern against the government’s interest in efficient performance of public service.
223
Q

Example of speech in government workplace involving matter of public concern
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

petition circulated intra-office regarding the employer’s transfer policies

224
Q

Example of speech in government workplace not involving matter of public concern
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

letter to the media attacking superintendent’s proposals to raise revenue

225
Q

Prisons
(free speech - government property // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Speech may be regulated in prisons if reasonably related to legitimate penological interests
  • A restriction on incoming mail will be upheld if it is rational; a restriction on outgoing mail must be narrowly tailored.
226
Q

Test
(free speech - conduct/symbolic speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

The government may regulate symbolic speech if

  1. the regulation furthers an important government interest
  2. that is unrelated to the suppression of speech, and
  3. the burden on speech is no greater than necessary
227
Q

Upheld regulation
(free speech - conduct/symbolic speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Under this test, the Supreme Court has upheld regulation of the following conduct:

  • draft-card burning,
  • public nudity,
  • nude dancing,
  • littering,
  • overnight sleeping in public parks
228
Q

Invalidated regulation
(free speech - conduct/symbolic speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

However, the Court has invalidated regulation of inherently expressive conduct, such as flag burning, cross burning (unless done with the intent to intimidate others), swastika painting, and the wearing of black armbands by students

229
Q

prior restraints
(free speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Prior restraints on speech are presumptively void
  • 3 types of prior restraints
    1. Judicial orders prohibiting speech
    2. Licensing and permit schemes
    3. Physical seizure or prohibition
230
Q

Judicial orders prohibiting speech
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

For a court to enter an injunction or other order prohibiting speech, such as a gag order on the press, the court must satisfy Strict Scrutiny, which it will rarely be able to do

231
Q

Collateral bar rule
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

According to the Collateral Bar Rule, a person must comply with a court injunction even if it is unconstitutional. Failure to do so will result in contempt

232
Q

Permissible prior restraints
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

A prior restraint is permissible when
1. the parties have contractually agreed to the restraint
(EXAMPLE = court enforced agent’s agreement to give CIA prepublication review of any proposed publications) or
2. in case of national security
(EXAMPLE = First Amendment would not bar injunction against publishing the date of sailing for troop ships in time of war)

233
Q

Licensing and permit schemes
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

If there is an ordinance or other law requiring a person to obtain a permit or license to speak, march, etc., such system must provide

  1. definite standards for the granting of the license or permit;
  2. no discretion in the granting official (including discretion to charge different amounts);
  3. prompt issuance; and
  4. prompt judicial review
234
Q

Procedurally improper licensing scheme
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

If a licensing scheme is procedurally improper, the speaker may ignore the scheme and raise a First Amendment challenge in later proceedings

235
Q

Facially proper licensing scheme
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

If the scheme is facially proper, the speaker must follow these procedures or he or she will be barred from raising First Amendment issues in a later prosecution

236
Q

Physical Seizure or Prohibition
(free speech - prior restraints // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

The government physically seizes the means of speech (e.g., printing press, film, computer) or prohibits certain types of speech from using the postal system

237
Q

9 random topics with free speech rules
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. Taxing and regulating the press
  2. Freedom of association
  3. Political contributions
  4. Loyalty oaths
  5. Group membership
  6. Government funding of speech
  7. Overbroad and vague
  8. Right not to speak
  9. Intellectual property
238
Q

Taxing and Regulating the Press
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

The press (and other media) are subject to general business regulations and taxes, but may not be singled out for special regulations or taxes

239
Q

Reporter’s privilege
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

There is no “reporter’s privilege” under federal law; thus, reporters may be forced to divulge their sources at grand jury proceedings and trials

240
Q

Freedom of Association
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • There is an implied freedom of association in the First Amendment, which prohibits regulation (including anti-discrimination laws) of intimate, private groups and clubs, but not large clubs with unselective membership or that are used for business contacts
  • Also, expressive groups (Boy Scouts) can have exclusive membership, even if the group was not formed for the sole purpose of propagating a particular message
241
Q

Political Contributions
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • The government may limit the amount a person may give to a particular candidate, but may not limit the amount a person or group may spend on an election or referendum
  • The government also may not limit the amount a person spends on his or her own campaign
  • But the government may ban personal solicitation of funds by judicial candidates
242
Q

Loyalty Oaths
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • The government may require a person to swear to support the constitutions (state and federal) or swear to oppose unlawful attempts to overthrow the government to obtain government employment or become a member of the bar
  • Persons may not be required to “support the flag” or swear not to “advocate” an overthrow of the government as an abstract idea
243
Q

Group Membership
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • A person may not be punished or precluded from public employment, etc. because of membership in an organization (e.g., the communist party), unless that person was a knowing and active member with the specific intent to further the organization’s unlawful aims
  • Laws that require groups to disclose membership are subject to strict scrutiny.
244
Q

Government Funding of Speech
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Government funding may be content-based, as long as it is view-point neutral (e.g., the government may choose artists, etc. to which to give grants)
  • But if a college gives financial support to student groups, it may not exclude religious groups
  • The First Amendment is violated when money is taken from nonconsenting government employees for a public-sector union; employees must choose to support the union before anything is taken from them
245
Q

Overbroad and Vague
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Laws that are vague or overbroad are not enforceable, and may be facially challenged (even by those whose speech would not be protected)
  • A vague or overbroad state statute may be saved if the courts of that state have limited its application to unprotected speech
246
Q

Overbroad definition
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

A law is overbroad if it prohibits substantially more speech than required (e.g., “all live entertainment”)

247
Q

Vague definition
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

A law is vague if a reasonable person would not know what speech is prohibited (e.g., “all First Amendment activities”).

248
Q

Right Not to Speak
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

The First Amendment protects a person’s right not to speak

249
Q

3 examples of the right not to speak
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. a person may tape over the statement “Live Free or Die” on license plates
  2. a person may not be forced to salute or pledge to the flag
  3. a clinic may not be forced to give patients a government-drafted notice about the availability of abortion and contraception); moreover, a person has the right to speak anonymously
250
Q

Intellectual Property
(free speech - miscellaneous rules // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • The First Amendment does not protect the publication of
    a. a private performance (without the consent of the performer) or
    b. the republication of copyrighted material (without the consent of the author)
  • In addition, the government’s denial of a trademark application on grounds that the trademark is “derogatory” is an unconstitutional suppression of free speech
251
Q

free exercise clause
(free exercise // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • The First Amendment prohibits Congress from passing any law abridging the freedom of religion
  • The 14th Amendment incorporates this clause, thus making it applicable to state and local governments
  • “Religion” includes any sincerely held religious-like beliefs.
252
Q

General Rule
(free exercise // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • The free exercise clause may not be used to challenge a neutrally applied law of general applicability (e.g., criminal laws or tax laws).
  • If, however, the purpose of a law is to single out religion for adverse treatment or to hinder or discriminate against a particular religion, that law will be subject to strict scrutiny (e.g., the Court invalidated a law banning animal sacrifice that was motivated to exclude a religious sect from the city).
253
Q

5 special rules
(free exercise // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. A person who quits a job or fails to take a job because of sincerely held religious beliefs may not be denied unemployment benefits (e.g., refusing to work on Sabbath, refusing to produce armaments); a person can, however, be denied such benefits if he or she is fired for a violation of the criminal laws (e.g., peyote use).
  2. Religious oaths may not be required for government employment.
  3. Amish children are exempt from mandatory secondary education.
  4. Religious organizations are exempt from employment discrimination suits brought by ministers and other ministerial employees.
  5. A state may not ban religious groups from receiving government benefits (e.g., a state program to provide free playground materials must provide such materials to eligible religious and nonreligious organizations).
254
Q

What does the establishment clause say?
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Congress shall make no law respecting the establishment of religion

255
Q

To whom does the establishment clause apply?
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

The 14th Amendment incorporates this clause, thus making it applicable to state and local governments

256
Q

Test for establishment clause issues
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

AKA the lemon test
to be valid:
1. The law’s primary purpose must be secular
2. The effect of the law must not be to advance or inhibit religion (in other words, the government must not symbolically endorse religion)
3. There must not be excessive government entanglement with religion

257
Q

rules on activities for elementary and secondary students
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Government sponsored religious activities in public schools (elementary, middle, and high school) are unconstitutional

  1. all school prayer (including voluntary, silent, and student-run) during school, at graduation, or at sporting events is unconstitutional
  2. bible reading and the teaching of creationism (or the prohibition of teaching evolution) is unconstitutional, but the academic study of religion is constitutional
  3. posting the Ten Commandments in public schools is unconstitutional
  4. but schools may allow students to leave early to attend religious instruction off-campus
258
Q

rule on financial aid for elementary and secondary students
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

as a general rule, government programs providing assistance to all elementary and secondary school students—including students at religious schools—is constitutional, but there are a few exceptions

259
Q

5 types of constitutional financial aid for elementary and secondary students
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. free secular textbooks
  2. reimbursement for transportation to and from school; public health services
  3. reimbursement for diagnostic and state-prepared tests
  4. sign-language interpreters
  5. remedial education, guidance counseling
260
Q

3 types unconstitutional financial aid for elementary and secondary students
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. transportation for field trips
  2. payment of teachers’ salaries
  3. reimbursement for teacher-prepared tests
261
Q

rule on tuition for elementary and secondary students
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  • Direct subsidies to religious schools are impermissible, but vouchers to parents, which may be used for religious and non-religious schools, are constitutional
  • In addition, tax deductions and credits for tuition, school supplies, etc. are valid if they are available to the parents of all students
262
Q

4 other cases
(establishment clause // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A
  1. Holiday scenes are permissible if they include both religious and non-religious symbols (e.g., a snowman)
  2. The 10 Commandments may not be displayed on government property, unless they are displayed with other historical documents (e.g., Magna Carta, Declaration of Independence) in an appropriate context
  3. Government action that prefers one religious sect over another violates the Establishment Clause (e.g., a law creating a public school for Jewish students is unconstitutional)
  4. State legislatures and town councils may have a chaplain for historical reasons
263
Q

flowchart = 3 steps
(takings clause)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A 
#1 = Has there been a “taking” of property?
#2 = If there has been a taking, was it for a “public use”?
#3 = If there has been a “taking” for a “public use,” the government must pay “just compensation.”
264
Q

flowchart #1. Has there been a “taking” of property?
(takings clause)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

A. Has there been a permanent, physical invasion of property (per se taking)?

    • Gov invades, condemns, destroys (floods) or confiscates private property; or
    • Gov orders private landowner to permit public or third-party access

B. If not, has a gov regulation diminished the use and/or value of private property?

    • All economically viable use = per se taking (unless the regulation was designed to suppress a common law nuisance)
    • Otherwise, Ad Hoc Balancing Test
      a. character of the gov action
      b. protection of reasonable, investment-backed expectations
      c. economic impact of the regulation on the particular owner

C. If not, has the government conditioned a building or construction permit or zoning variance or petition on the owner’s agreement to grant an easement to the government or the public or to set aside land for public or third party use or to make a monetary exaction?
– Test: Is there an
a. ESSENTIAL NEXUS btwn the condition and a LEGIT GOV INTEREST and
b. is the condition “ROUGHLY PROPORTIONAL” to the projected impact of the owner’s development?
(If not, it is a taking.)

265
Q

flowchart #2. If there has been a taking, was it for a “public use”?
(takings clause)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A 
#2. If there has been a taking, was it for a “public use”?
- Answer: Yes
266
Q

flowchart #3. If there has been a “taking” for a “public use,” the government must pay “just compensation.”
(takings clause)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

3. If there has been a “taking” for a “public use,” the government must pay “just compensation.”

  • The government must pay FMV = the loss to the owner, not the gain to the taker
  • The landowner is not entitled to damages for loss of business or “good will” or for moving expenses
267
Q

flowchart = 3 questions
(free speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

QUESTION ONE = At what point in time is the speech being regulated?
QUESTION TWO = What is being regulated?
QUESTION THREE = What property does the speaker intend to use for speech?

268
Q

flowchart Q1. At what point in time is the speech being regulated?
(free speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Q1 = At what point in time is the speech being regulated?
A. The government is trying to prevent the speech from occurring (e.g., a license to speak or gag order on the press). If so, see the Prior Restraint materials.
B. The regulation punishes speech after it occurs. If so, move to Q2.

269
Q

flowchart Q2. What is being regulated?
(free speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Q2 = What is being regulated?
A. Pure Speech (e.g., oral or written language). If so, move to Q3.
B. Conduct/Symbolic Speech (e.g., burning draft cards or burning flags). If so, go to Regulating Conduct materials.

270
Q

flowchart Q3. What property does the speaker intend to use for speech?
(free speech // first amendment)
INDIVIDUAL RIGHTS OR CIVIL LIBERTIES

A

Q3 = What property does the speaker intend to use for speech?
A. His or her own private property (or other private property with permission). If so, go to Content-based v. Content-neutral materials.
B. The government’s property. If so, go to Government Property materials.
C. Private property belonging to someone other than the speaker who objects to such use. There is no right to use another’s private property (including his or her mailbox) for speech.

271
Q

THE BASICS
supreme law of the land

[judicial review // role of fed cts in constitutional cases]

A

the constitution

272
Q

THE BASICS
supreme court’s duty/province

[judicial review // role of fed cts in constitutional cases]

A

to interpret the constitution

273
Q

THE BASICS
supreme court’s interpretation

[judicial review // role of fed cts in constitutional cases]

A

= final and binding

a. of the U.S. Constitution
b. of federal law
c. not of state constitutions

274
Q

SC JURISDICTION
2 types of jurisdiction

[judicial review // role of fed cts in constitutional cases]

A
  1. Original jurisdiction

2. Appellate jurisdiction

275
Q

SC JURISDICTION
original jurisdiction - definition

[judicial review // role of fed cts in constitutional cases]

A

= a case that is heard by the SC before it’s been decided by any other ct

276
Q

SC JURISDICTION
original jurisdiction - scope

[judicial review // role of fed cts in constitutional cases]

A

constitution says SC has original jurisdiction in all cases

  1. Affecting ambassadors, other public ministers and consuls
  2. Those in which a state shall be a party
277
Q

SC JURISDICTION
original jurisdiction - congressional limits

[judicial review // role of fed cts in constitutional cases]

A

Congress can’t expand or reduce SC’s original jurisdiction
BUT can grant concurrent jurisdiction to lower federal courts to hear such cases

EXCEPTION = in suits btwn 2+ states, SC’s original jurisdiction is exclusive

278
Q

SC JURISDICTION
exclusive original jurisdiction

[judicial review // role of fed cts in constitutional cases]

A

in suits btwn 2+ states

279
Q

SC JURISDICTION
appellate jurisdiction - definition

[judicial review // role of fed cts in constitutional cases]

A 
= jurisdiction to review a lower court’s decision 
AKA another (state or fed) tribunal has already ruled on this controversy
280
Q

SC JURISDICTION
appellate jurisdiction - scope

[judicial review // role of fed cts in constitutional cases]

A

almost entirely discretionary (but mandatory for injunctive relief by federal 4 judge-panel or something)

281
Q

SC JURISDICTION
appellate jurisdiction - rule of 4

[judicial review // role of fed cts in constitutional cases]

A

= writ of cert may be granted upon approval of 4 justices

282
Q

THE BASICS
underlying principle of justiciability

[justiciability // role of fed cts in constitutional cases]

A

= fed cts should avoid deciding constitutional issues needlessly

283
Q

THE BASICS
definition of justiciability

[justiciability // role of fed cts in constitutional cases]

A

= even if a case involves an issue within the jurisdiction of fed cts, a fed ct won’t hear the dispute unless it’s in the appropriate posture

284
Q

THE BASICS
when is justiciability determined?

[justiciability // role of fed cts in constitutional cases]

A

justiciability determinations are made at each level in fed cts

285
Q

THE BASICS
6 key doctrines

[justiciability // role of fed cts in constitutional cases]

A
  1. Advisory opinions
  2. Standing
  3. Ripeness
  4. Mootness
  5. Political questions
  6. Adequate and independent state grounds
286
Q

ADVISORY OPINIONS
constitutional prong

[justiciability // role of fed cts in constitutional cases]

A

Article III limits the jurisdiction of federal courts to “cases” or “controversies”

287
Q

ADVISORY OPINIONS
2 types

[justiciability // role of fed cts in constitutional cases]

A
  1. Classic advisory opinions

2. Non-final opinions

288
Q

ADVISORY OPINIONS
definition of classic advisory opinions

[justiciability // role of fed cts in constitutional cases]

A 
= situations in which someone 
(often member of exec or legis branch) 
is seeking opinion about the validity/constitutionality 
of a law or gov action 
before it’s enacted or enforced
289
Q

ADVISORY OPINIONS
definition of non-final opinions

[justiciability // role of fed cts in constitutional cases]

A

= opinions by fed cts that may be
reversed or modified
by the exec or legis branch
(or really anyone other than a higher ct)

290
Q

STANDING
general rule - 3 requirements

[justiciability // role of fed cts in constitutional cases]

A
  1. Injury in fact
  2. Causation
  3. Redressability
291
Q

STANDING
injury in fact - definition

[justiciability // role of fed cts in constitutional cases]

A

= P has suffered a

  1. CONCRETE, PARTICULARIZED injury
  2. that has ACTUALLY OCCURRED or is IMMINENT
292
Q

STANDING
injury in fact - proof required

[justiciability // role of fed cts in constitutional cases]

A

ideally P can show either
• physical injury or
• property damage or
• economic loss

293
Q

STANDING
definition of causation

[justiciability // role of fed cts in constitutional cases]

A

= injury must be FAIRLY TRACEABLE to D

294
Q

STANDING
definition of redressability

[justiciability // role of fed cts in constitutional cases]

A

= a favorable decision on the merits to P will fix the injury

295
Q

STANDING
4 special cases for standing

[justiciability // role of fed cts in constitutional cases]

A
  1. Citizen standing
  2. Taxpayer standing
  3. 3P standing
  4. Legislators’ standing
296
Q

STANDING SPECIAL RULES/EXCEPTIONS
rule for citizen standing

[justiciability // role of fed cts in constitutional cases]

A

= Citizenship alone is insufficient to confer standing

297
Q

STANDING SPECIAL RULES/EXCEPTIONS
3 rules for taxpayer standing

[justiciability // role of fed cts in constitutional cases]

A
  1. Federal taxpayers don’t have standing to challenge federal spending measure UNLESS
    - congress confers such standing OR
    - the measure was enacted under congress’s taxing and spending power AND exceeds a specific limitation on that power (so far only establishment clause)
  2. State taxpayers don’t have standing in federal court to challenge state expenditures
  3. Municipal taxpayers probably have standing in fed ct to challenge municipal expenditures
298
Q

STANDING SPECIAL RULES/EXCEPTIONS
3P standing - rule

[justiciability // role of fed cts in constitutional cases]

A

generally = P may assert only injuries that she suffered and not injuries suffered by others

4 exceptions

  1. Associational standing
  2. Jus tertii standing
  3. Special relationship
  4. First amendment challenge
299
Q

STANDING SPECIAL RULES/EXCEPTIONS
3P standing - associational standing rule

[justiciability // role of fed cts in constitutional cases]

A

= associations may assert claims on behalf of their members AS LONG AS

  1. at least 1 MEMBER has Article III STANDING AND
  2. claim is RELATED to association’s MISSION
300
Q

STANDING SPECIAL RULES/EXCEPTIONS
3P standing - jus tertii standing rule

[justiciability // role of fed cts in constitutional cases]

A

= P has standing to assert 3P’s if there is

  1. an IMPEDIMENT to the real P brining suit on her own behalf AND
  2. a NEXUS btwn the real P and the 3P
301
Q

STANDING SPECIAL RULES/EXCEPTIONS
3P standing - 2 key examples of jus tertii standing

[justiciability // role of fed cts in constitutional cases]

A
  • doctors asserting rights of patients

- litigants asserting rights or jurors

302
Q

STANDING SPECIAL RULES/EXCEPTIONS
3P standing - special relationship rule + key example

[justiciability // role of fed cts in constitutional cases]

A

rule = there is a SPECIAL RELATIONSHIP btwn P and 3P

key example = parent-child

303
Q

STANDING SPECIAL RULES/EXCEPTIONS
3P standing - first amendment challenge rule

[justiciability // role of fed cts in constitutional cases]

A

P has standing to assert a First Amendment “facial challenge” to an overbroad law

304
Q

STANDING SPECIAL RULES/EXCEPTIONS
legislators’ standing rule

[justiciability // role of fed cts in constitutional cases]

A

= legislators don’t have standing to challenge legislation with which they disagree solely based on an INSTITUTIONAL injury to all members of congress equally
(obviously unless they have sufficient personal stake and concrete injury)

305
Q

RIPENESS
definition

[justiciability // role of fed cts in constitutional cases]

A

= case is brought TOO EARLY

P doesn’t have standing yet

306
Q

RIPENESS
when does ripeness often arise?

[justiciability // role of fed cts in constitutional cases]

A

In cases where P is challenging a criminal statute or admin regulation before it’s been enforced or imminently threatened to be enforced against her

307
Q

MOOTNESS
definition

[justiciability // role of fed cts in constitutional cases]

A

= case is brought TOO EARLY (P had standing but lost it)

308
Q

MOOTNESS
voluntary cessation rule

[justiciability // role of fed cts in constitutional cases]

A

If D voluntarily ceases whatever action’s at issue, case will ONLY be moot if there’s NO REASONABLE EXPECTATION that alleged violation will recur

309
Q

MOOTNESS
3 exceptions to mootness

[justiciability // role of fed cts in constitutional cases]

A
  1. Capable of repetition in this P yet evading review
  2. Collateral consequences
  3. Class actions
310
Q

MOOTNESS EXCEPTIONS
capable of repetition in this P yet evading review - rule

[justiciability // role of fed cts in constitutional cases]

A

= issues with such inherently short durations that they would never receive full judicial review before becoming moot will not make a case moot

311
Q

MOOTNESS EXCEPTIONS
capable of repetition in this P yet evading review - 2 key examples not moot under this exception

[justiciability // role of fed cts in constitutional cases]

A
  • Issues involving pregnancy (like abortion)

- Ballot restriction measures in elections

312
Q

MOOTNESS EXCEPTIONS
capable of repetition in this P yet evading review - key example that doesn’t meet this exception

[justiciability // role of fed cts in constitutional cases]

A

Discrimination against a law school in which P was admitted to (and was schedule to graduate from) the law school while the case was pending

313
Q

MOOTNESS EXCEPTIONS
collateral consequences

[justiciability // role of fed cts in constitutional cases]

A

collateral consequences (like damages) that have yet to be determined will not make a case moot

314
Q 
MOOTNESS EXCEPTIONS
class actions

[justiciability // role of fed cts in constitutional cases]

A

after a class has been certified, the named plaintiff’s claim being moot will not make a case moot AS LONG AS the other members’ claims are still viable

315
Q

POLITICAL QUESTIONS
2 types of political questions

[justiciability // role of fed cts in constitutional cases]

A
  1. Those textually committed to another branch by the constitution
  2. Those for which there are no judicially manageable standards
316
Q

POLITICAL QUESTIONS
3 examples of political questions textually committed to another branch by the constitution

[justiciability // role of fed cts in constitutional cases]

A
  1. Impeachment process
  2. Congress’ power to judge the age/residency/citizenship qualifications of its members
  3. Congress’ power to expel a member
317
Q

POLITICAL QUESTIONS
6 examples of political questions for which there are no judicially manageable standards

[justiciability // role of fed cts in constitutional cases]

A
  1. Constitutional amendment process
  2. Partisan gerrymander
  3. Disputes within political parties
  4. Guaranty clause cases (EX = what is a republican form of gov?)
  5. Administration of foreign affairs (EX = prez’s pwr to unilaterally terminate treaty)
  6. President’s authority to deploy military forces w/o congressional declaration of war
318
Q

ADEQUATE & INDEPENDENT STATE GROUNDS
rule

[justiciability // role of fed cts in constitutional cases]

A

SC won’t exercise appellate jurisdiction over case arising out of highest state court if the state ct’s EXPRESSLY stated its decision rests on an ADEQUATE and INDEPENDENT state ground

319
Q

ADEQUATE & INDEPENDENT STATE GROUNDS
key inquiry/analysis

[justiciability // role of fed cts in constitutional cases]

A

To determine if adequate and independent state grounds exist, ask:
Can the US SC change the result of the case by reversing on the federal issue?
- YES = justiciable, SC can hear the appeal
- NO = nonjusticiable, SC can’t hear the appeal

Bar Refresher (8 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions