Constitutional law

Question 1

Eleventh Amendment

Answer 1

Prohibits federal courts from hearing most private actions against state governments. This prohibition includes action in which the state is named as a party or in which the state will have to pay retroactive damages.

Exception 1: Private parties may bring suit actions to enjoin officers from future conduct that violates the Constitution or federal law. This exception includes enjoining an appropriate state official from enforcing the unconstitutional state law.

Exception 2: Congress may remove the immunity as to actions created under the Fourteenth Amendment.

Question 2

Time, place, and manner restriction

Answer 2

Regulations on the content of speech are subject to strict scrutiny and are, therefore, generally invalid. But the government may regulate the conduct of speech with a time, place, and manner regulation.

Time, place, and manner regulation in a public forum must:

1. Be content neutral,
2. Be narrowly tailored to serve a significant government interest, and
3. Leave open alternative avenues of communication

Question 3

Are school classrooms traditional public forums?

Answer 3

No, school classrooms are not traditional public forums and generally are not available for the exercise of First Amendment rights. BUT if a school chooses to open its facilities for public use when the rooms are not being used for school purposes, the facilities become designated public forums. At the time the classrooms are being used as designated public forums, there use may be limited only by valid time, place, and manner restrictions.

Question 4

Traditional public forums and designated public forums

Answer 4

Traditional public forums = Public property that has historically been open to speech-related activities (ex. streets, sidewalks, public parks).

Designated public forums = Public property that has not been historically open to speech-related activity, but the which the gov has thrown open for such activities on a permanent or limited basis (ex. town hall).

Regulations on either
Content based regulation = strict scrutiny

Content neutral/time, place, and manner restrictions = must be (1) narrowly tailored to serve an important gov interest, and (2) leave open alt channels of communication

Question 5

Limited public forums and nonpublic forums

Answer 5

Limited = gov property not historically open generally for speech and assembly, but open for specific speech (ex. school gym open for a debate on a particular issue)

Nonpublic = gov property not historically held open for speech and not being held open (ex. military basis, offices)

Regulations on either

Gov can regulate speech in such forums to reserve the forum for its intended use. Regulations are valid if they are:

1. Viewpoint neutral, and
2. Reasonably related to a legitimate government interest

Question 6

Dormant Commerce Clause

Answer 6

If Congress has not enacted laws regarding a subject, a state or local government may regulate local aspects of interstate commerce if the regulation:

1. Does not discriminate against out of state competition to benefit local economic interest, and
2. It is not unduly burdensome (the incidental burden on interstate commerce does not outweigh the legitimate local benefits)

• Discriminatory regs are almost always invalid; only valid if “necessary to achieve an important noneconomic state interest and there are no reasonable alternatives” OR market participant exception applies

Question 7

Fifth Amendment Takings Clause

Answer 7

Fifth Amendment prohibits governmental taking of private property for public use without just compensation. Government must fairly compensate an owner when her property is taken for public use, but it need not compensate for mere regulation of property.

• A taking will almost always be found if there is an actual physical appropriation or destruction of a persons’ property.

Question 8

When does a restriction on real property constitute a taking?

Answer 8

Cities may generally regulate the use of real property, a regulation will constitute a taking if it:

1. Amounts to a physical appropriation,
2. Denies an owner of all economic use, OR
3. Unreasonably interferes with distinct investment-backed expectations of the owner

Question 9

Exception to the Takings Clause

Answer 9

A city can force a landowner to convey an interest in their land to the city in exchange for the city’s permission to build improvements on the property if:

1. A close nexus exists (the gov can show that the condition relates to a legitimate governmental interest), and
2. Proportionality exists (the adverse impact of the proposed building/development on the area is roughly proportional to the loss caused to the prop owner from the forced transfer of occupational rights)