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Louisiana Bar Exam > Constitutional Law > Flashcards

Constitutional Law Flashcards

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2
Q

Commerce clause

A

Fed govt regulates interstate commerce, but cannot regulate

  1. purely local commerce, and
  2. intrastate commerce
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3
Q

Dormant commerce clause

trigger and test

A

Threshold: Does the state action burden interstate commerce?Law is invalid if the burden on interstate commerce outweighs:

  1. legitimate
  2. non discriminatory
  3. local interest

Look to the following: (SPIL)

  1. How substantial is the burden
  2. Purpose of the law
  3. Important enough to justify burden
  4. Less-burdensome alternative
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4
Q

Exception to State action burden on interstate commerce

A

Market participant

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5
Q

Privilege and Immunities Clause

A

Threshold: state discriminates against out of state citizen in regards to a fundamental right.

TEST:
1. Citizen (out of state and must be natural person)

  1. Fundamental right (travel, transact business, trade, etc.)
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6
Q

Procedural Due Process

trigger and test

A
  1. State Action
  2. Adverse effect on a vested liberty or property interest.
  3. Notice
  4. Opportunity to be heard
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7
Q

Standards of scrutiny

A

Strict scrutiny - narrowly tailored to a compelling government interest (fundamental rights, race, origin religion)Intermediate scrutiny - substantially related to an important government interest (gender, legitimacy)Rational basis - rationally related to a legitimate government interest (everything else)

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8
Q

Substantive Due Process

trigger and test

A

Right as a citizen - burdened or deprived life/liberty/property interest w/out due process

TEST:

  1. Action depriving citizenry of fundamental right?
  2. What right is burdened?
  3. Strict scrutiny if fundamental right, and rational basis to other rights
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9
Q

Equal Protection

Trigger and test

A

A class of citizens is treated differently than others
TEST
1. Identify class of citizens affected a. Suspect classification
b. quasi suspect classification
c. Everything else

  1. Apply appropriate level of scrutiny
    a. Suspect class - strict scrutiny
    b. quasi suspect - intermediate scrutiny
    c. Everything else - rational basis
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10
Q

Takings clause

Trigger and test

A

Private property taken or interfered w/ by govt entity
TEST:
1. Was there a taking? - physical occupation or denial of all economically viable use

  1. Was it for a public purpose? - state must reasonably believe it will benefit the public?
  2. Was just compensation given?
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11
Q

Freedom of Speech

A

Content regulation is not tolerated unless falls within an exception

  1. Political - protected unless incitement
  2. Commercial - regulate false or deceptive
  3. Public Employee - matters of public concern are protected unless gov’t shows interest in efficiently delivering public services outweighs
  4. Obscenity
  5. Fighting words - not protected
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12
Q

Time place and manner restrictions

A
  1. Must be reasonable
  2. No greater than necessary to achieve stated purpose
  3. Not thinly veiled content restrictions - cannot have unfettered discretion and must have discernible standards
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13
Q

Prior restraint

A

Heavy presumption against validity. Apply strict scrutiny

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14
Q

Overbroad statute

A

Regulates protected AND unprotected speech

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15
Q

Vague statute

A

Restricts speech without an ascertainable standard.

May result in a chilling effect in that people will refrain from speech because there is no understandable standard - fear of violation results in restraint

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16
Q

Establishment clause

Trigger and test

A

Government cannot pass laws advancing/prohibiting religion and/or prefer religious over non-religious.

“Lemon” TEST:
1. Secular purpose

  1. Primary effect of benefit neither advances nor prohibits religion, and
  2. No excessive govt entanglement w/ religion
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17
Q

Free Exercise clause

Trigger and test

A

Laws of neutral applicability are acceptable unless intended to interfere w/ religion by restricting or prohibiting free exercise of religion.

TEST/EXCEPTION:
1. Sincerely held religious belief

  1. Belief burdened by state regulation
  • **State may counter if regulation is:
    1. important to a state goal, and
    2. Permitting an exception would be hindered by an exemption.

** Incidental burden caused by law of general application will be reviewed under rational basis scrutiny

18
Q

Exceptions to Free Exercise clause (2)

A
  1. Important to state goal & hindered by granting exemption

2. Incidental burden on law of general application - rational basis scrutiny

19
Q

Language for procedural due process

A

The state may not deprive a person of a liberty interest without first giving them notice and a reasonable opportunity to be heard.

20
Q

Prior restraint

A

Any govt action that would prevent a communication from reaching the public

**usually per se unconstitutional

21
Q

Full faith and credit clause

A

Public acts, records and judicial proceedings have same force in every state.

22
Q

Suspect classes

A

Race, national origin, religion

23
Q

Privileges and immunities clause language

A

Citizens of each state shall be entitled to the privileges and immunities of citizens in several states.

Ex:Travel, own property, transact business, etc.

24
Q

Quasi suspect class

A

Gender, sex, illegitimacy

25
Q

Intermediate scrutiny

A
  1. Substantially related

2. Important govt interest

26
Q

Rational basis review

A
  1. Rationally related to

2. Legitimate govt interest

27
Q

Strict scrutiny

A
  1. Narrowly tailored to

2. Compelling govt interest

28
Q

Public employee free speech rights

A

Must be balanced against state’s interest in efficiently performing functions.

  1. Matter of public concern?
  2. If yes, does govt interest in efficiently delivering public services outweigh the employee’s free speech rights?
29
Q

Test to see if state law violates DCC

A
  1. Discriminate against interstate commerce?
    * if yes, per se unconstitutional
  2. If not, does the law burden interstate commerce?
30
Q

Separation of Powers triggered

A

Separation of powers (generally)

Action by branch of govt where:
1. no constitutional authorization for the action, or action exceeds authorization

  1. usurpation of power granted to another branch or
  2. constitutes an improper delegation of power by one branch to another branch of government
31
Q

Supremacy Clause

A

Supremacy clause

Constitution, fed laws, and treaties are supreme law of the land, but if there is a gap in fed legislation, states may legislate within gaps.

32
Q

How much PDP is due

A
  1. Private interest affected
  2. Risk of erroneous deprivation through procedures used &
  3. value of more procedural safeguards
  4. Govt’sinterestincludingburdenofadditional/substituteproceduralrequirements

Louisiana Bar Exam (10 decks)

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