Constitutional Law

Question 1

Taxing and Spending

Answer 1

Article I, Section 8, provides that Congress may spend to “provide for the common defense and the general welfare.” This spending may be for any public purpose-not merely the accomplishment of other enumerated powers.

Under this power, Congress may “regulate states by imposing explicit conditions on the grant of money to state or local governments.”

Such conditions will not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program as long as the conditions are (i) clearly stated, (ii) related to the purpose of the program, and (iii) not unduly coercive.

Question 2

Necessary and Proper

Answer 2

the Necessary and Proper Clause is not by itself a basis of power; it merely gives Congress power to execute specifically granted powers. (If it’s standing alone, it’s the wrong answer.)

Question 3

Supremacy Clause

Answer 3

A state may regulate local aspects of commerce (i.e., intrastate commerce), but state regulation that discriminates against or substantially burdens interstate commerce may be held invalid under the Supremacy Clause, because of Congress’s very broad power to regulate interstate commerce under the Commerce Clause. Congress’s power over interstate commerce is very broad, so Congress may allow a state to adopt legislation that would otherwise be invalid as an unconstitutional burden on interstate commerce

Question 4

Preemption

Answer 4

Implied preemption will be found where it was the intent of the federal government to occupy the entire field with its regulation, the state law directly conflicts with the federal law, or the state provisions prevent achievement of federal objectives. For regulations involving health, safety, and welfare, the Court will presume that state police powers are not preempted unless that was the clear and manifest purpose of Congress when it enacted the federal law

States can give greater protections than federal law unless Congress says they can’t

Question 5

Privileges and Immunities

Answer 5

A state may regulate local aspects of interstate commerce if such regulation is not in conflict with federal regulations and if: (i) the subject matter of the regulation does not require nationally uniform regulation; (ii) the regulation does not discriminate against out-of-state competition to benefit local economic interests; and (iii) any incidental burden on interstate commerce of the nondiscriminatory regulation does not outweigh the legitimate local benefits produced by the regulation. Laws that are designed to protect local businesses against interstate competition generally will be invalidated.

Question 6

Appeals, Generally

Answer 6

A plaintiff bringing an action in a state trial court is required to exhaust its state appellate remedies before seeking review in federal courts, even where federal issues are involved.

-a federal court of appeals never hears appeals from a state trial court

-a party may file a petition of certiorari only from a decision of the highest court of the state where a state statute allegedly violates the United States Constitution

Question 7

Presidential Pardons

Answer 7

Article II, Section 2 of the United States Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This pardon power is not subject to control by Congress, and it includes the power to commute a sentence on any conditions the President chooses (as long as the conditions do not offend some other constitutional provision). Blanket pardons are valid. Presidents may pardon offenses that occurred before the President took office. even if the action of issuing the pardon amounted to the crime of obstruction of justice, the pardon itself would not be invalidated

Question 8

Discriminatory effect of govt action

Answer 8

the mere fact that a governmental action has a discriminatory effect is not sufficient to trigger strict scrutiny. There must be intent to discriminate on the part of the government. When the law does not discriminate on its face and is not applied in a discriminatory manner, a suspect classification will be found only if the lawmaking body enacted or maintained the law for a discriminatory purpose. While statistical evidence is admissible that the law has a disproportionate impact on one class of persons, such evidence will almost never be sufficient by itself to prove that the government had a discriminatory purpose in passing a law.

Question 9

Procedural Due Process

Answer 9

State cannot deprive you of due process rights without notice and hearing

Under the Due Process Clause of the Fourteenth Amendment, the state must provide some fair process or procedure before it may deprive a person of “life, liberty, or property.” Fair procedure at a minimum requires an opportunity to present objections to the proposed action to a fair, neutral decisionmaker. Whether a prior evidentiary hearing is required and the extent of procedural requirements is determined by weighing (i) the importance of the individual interest involved, (ii) the value of specific procedural safeguards to that interest, and (iii) the governmental interest in fiscal and administrative efficiency.

The Due Process Clause does not prohibit laws that “summarily take” property from a class in general; no individual hearing or other process is required for laws of general applicability

Question 10

Contracts Clause

Answer 10

applies to state laws that retroactively invalidate contracts

The Contracts Clause prohibits states from retroactively and substantially impairing contract rights unless the governmental act serves an important and legitimate government interest and is a reasonable and narrowly tailored means of promoting that interest.

Private contracts: intermediate scrutiny:
Legislation that substantially impairs an existing private contract is invalid unless the legislation:
* Serves an important and legitimate public interest, and
* Is a reasonable and narrowly tailored means of promoting that interest

Public contracts: heightened scrutiny: Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the legislation will likely receive heightened scrutiny, especially if the legislation reduces the contrac¬tual burdens on the state

Question 11

State Action Requirement

Answer 11

Private action may constitute state action where the private actor is performing an exclusive state function or the government is significantly involved in the private actor’s activities.

Exception: 13th amendment doesn’t just apply to govt, it applies to everyone! No slavery or involuntary servitude except as punishment for a crime

Question 12

First Amendment and Press

Answer 12

 The freedom of the press is guaranteed by the First Amendment. As with other areas within the First Amendment, the freedom does not prohibit all government regulation of the press, but it does place limits on regulation. The press and broadcasting companies can be subject to general business regulations and taxes, but generally may not be singled out for a special tax. Moreover, a tax impacting on the press or a subpart of the press cannot be based on the content of the publication absent a compelling justification.
 Generally, the press has a right to publish information about a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further a state interest of the highest order. The right applies even if the information has been unlawfully obtained in the first instance, as long as (1) the speech relates to a matter of public concern, (2) the publisher did not obtain it unlawfully or know who did, and (3) the original speaker’s privacy expectations are low. – even if the material was obtained unlawfully

Question 13

Commercial Speech

Answer 13

Unprotected if: (1) false, (2) misleading, or (3) about illegal products or services

If commercial speech concerns a lawful activity and is not misleading or fraudulent, the government regulation, to be valid, must directly advance a substantial governmental interest and must be no more extensive than necessary to serve that interest. The regulation must be narrowly drawn and there must be a reasonable fit between the legislation’s end and the means chosen.

Question 14

Public vs nonpublic forums

Answer 14

most locations other than streets, sidewalks, and parks are not public forums and may be reserved by the government for their intended activity.

When a limited or nonpublic forum is involved, government regulations designed to reserve the forum for its intended use will be upheld if they are (i) viewpoint neutral, and (ii) reasonably related to the intended purpose of the nonpublic forum (which must be a legitimate government purpose).

Limited public forum: kind of like intermediate scrutiny, restrictions will be allowed as long as content-neutral, viewpoint-neutral, narrowly tailored

Question 15

Establishment Clause

Answer 15

the focus is on whether the govt action is neutral or coercive with respect to religion, whether it endorses religion, or whether action is justified by history and tradition.

Neutrality- govt must remain neutral with respect to religion, neither favoring nor disfavoring it.

Coercion - govt may not directly or indirectly coerce individuals to exercise (or refrain from exercising) their religion.

Endorsement - govt must not appear to endorse or disapprove of religion from the standpoint of a reasonable and informed observer, and therefore, make religion seem relevant to a person’s standing in the political community.

History and Tradition - In some cases, the court will find that a govt religious display or practice is a tolerable acknowledgment of the role religion has played in the history and tradition of the nation. (Note: it helps if the display or practice been around for a while or is in a historical setting).

Question 16

Free Exercise Clause

Answer 16

The Free Exercise Clause does not require exemptions from government regulations for a person whose religious beliefs prevent him from conforming his behavior to the requirements of the law. Unless the law was motivated by a desire to interfere with religion, it can be applied to regulate the conduct of one whose religious beliefs conflict with the law

Question 17

Obscenity

Answer 17

Unprotected speech

(1) Appeals to the prurient interest in sex, using a contemporary community standard; (2) Is patently offensive under contemporary community standards AND (3) Lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard

Private possession [in the home!] of obscene material cannot be punished

Question 18

Incitement

Answer 18

Unprotected speech

(1) intended to produce imminent lawless action and (2) likely to produce such action.

Question 19

Fighting words

Answer 19

Unprotected speech

personally abusive words that are likely to incite immediate physical retaliation in an average person

Statutes can’t be viewpoint-based, e.g. prohibiting only fighting words that insult on the basis of race, religion, or gender

Question 20

True threats

Answer 20

Unprotected speech

words that are intended to convey to someone a serious threat of bodily harm

Question 21

Unprotected speech

Answer 21

Obscenity
Incitement
Fighting words
True threats
Defamatory speech
Commercial speech that is (1) false, (2) misleading, or (3) about illegal products or services

Question 22

Content-based speech restrictions

Answer 22

if it restricts speech based on the subject matter or viewpoint of the speech, strict scrutiny!

Question 23

Content-neutral speech restrictions
(time, manner, place restrictions)

Answer 23

intermediate scrutiny: restriction must be narrowly tailored to serve an important government interest and leave open alternative channels of communication

Question 24

Public forums and designated public forums

Answer 24

(Designated public forum = not traditionally for speech but held open for speech)

If content-based: SS
If content-neutral, intermediate (narrowly-tailored, leave open alternative channels)

Question 25

Limited Public Forums

Answer 25

Government forums not historically open generally for speech and assembly, but opened for specific speech activity

The government can regulate speech in such forums to reserve the forum for its intended use

Valid if (1) Viewpoint neutral and (2) reasonably related to a legitimate government purpose

If viewpoint based, SS

Question 26

Nonpublic forums

Answer 26

Government property not historically open generally for speech and assembly and not held open for specific speech activities, such as military bases or government workplaces

The government can regulate speech in such forums to reserve the forum for its intended use

Valid if (1) Viewpoint neutral and (2) reasonably related to a legitimate government purpose

If viewpoint based, SS

Question 27

Speech in public schools

Answer 27

o Personal Student Speech On Campus: A student’s own personal speech (that is, their expression of themselves as individuals) on campus cannot be censored absent evidence of substantial disruption.
o Personal Student Speech Off Campus: When the student’s personal speech occurs off campus, it will be harder to censor. Schools will be limited to restricting speech to prevent cheating, bullying, threats, and other speech where pedagogical or safety interests clearly outweigh the speech interests of students as private citizens.
o School speech: Restrictions on speech related to the school’s teaching (for example, speech by school faculty and by students as part of curricular or extracurricular activities) must be reasonably related to legitimate pedagogical concerns.

Question 28

Speech in public employment

Answer 28

o Unprotected Employee Speech: If a government employee’s speech while at work involves a matter of private concern, the employer can punish the employee if the speech was disruptive of the work environment. A government employer may also punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties, even if the speech touches on a matter of public concern. There is no First Amendment protection in either situation.
o Protected Employee Speech: If the speech is on a matter of public concern but is not made pursuant to the employee’s official duties, balancing test: The courts must balance the value of the speech against the government’s interest in the efficient operation of the workplace. For speech on matters of private concern outside of the workplace, the test is unclear, but this speech appears protected absent a detrimental effect on the workplace.

Question 29

Loyalty oaths

Answer 29

The government can require employees to take loyalty oaths, as long as the oaths aren’t overbroad or vague.

Question 30

Prior restraints

Answer 30

Prior restraints are court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards (for example, licensing systems, injunctions). They are not favored and are rarely allowed (especially if they’re content-based). There isn’t any special test for prior restraints—content-based ones are subject to strict scrutiny and content-neutral ones are subject to intermediate scrutiny—but the government’s burden in justifying a prior restraint is heavy. For exam purposes, you should ask whether there is some special societal harm that justifies the restraint.

Question 31

Overbroad speech regulations

Answer 31

A regulation of speech or speech-related conduct will be invalidated as overbroad if it punishes substantially more speech than is necessary.

Question 32

Void for vagueness doctrine

Answer 32

If a criminal law or regulation fails to give persons reasonable notice of what is prohibited (for example, a ban on “opprobrious and offen¬sive” words), it may violate the Due Process Clause. This principle is applied more strictly when First Amendment activity is involved.

Question 33

Bills of Attainder

Answer 33

Bills of attainder are legislative acts that inflict punishment on individ¬uals without a judicial trial. Both federal and state/local governments are prohibited from passing bills of attainder.

Question 34

Ex post facto laws

Answer 34

Neither the states nor the federal government may pass an ex post facto law, which is a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity.

Question 35

Substantive Due Process: Fundamental Rights

Answer 35

CMPERIVS
Privacy rights: CMPER
Strict scrutiny!
o Privacy-related rights: Contraception, Marriage, Procreation, private Education, Raise family
o Right to interstate travel (equal tx in new state, some residency requirements ok)
o Right to vote (14th amendment, 15th amendment, 19th amendment, 26th amendment, 24th amendment)
(Racial gerrymandering = strict scrutiny; Partisan gerrymandering = nonjusticiable political question)

Question 36

Non-fundamental rights

Answer 36

o Bear arms (self-defense in the home and in public), test based on historical tradition rather than strict scrutiny
o Unspecified rights (standard of review unclear): sexual intimacy, refusal of medical tx

All other rights get rational basis

Question 37

Where original venue is proper, court can order transfer based on

Answer 37

(1) Convenience of parties and witnesses and (2) The interest of justice and (3) Burden is on the party seeking transfer (usually d). Court will consider a series of public and private factors, showing that another court is the center of gravity for the case: Public factors: what law applies, what community should be burdened with jury service, the desire to keep local controversy in local court. Private factors: where the evidence and ds are found.

Question 38

Forum non conveniens

Answer 38

Applies when there is another court that is the center of gravity for the case, but the court cannot transfer the case to that court because it is in a different judicial system
The court invoking FNC will either stay the case or dismiss. The P will then sue in the other court.
FNC decision is based on the same factors as transfer.
The other court MUST be available and “adequate” – super low bar (adequate unless p can get no remedy there at all

Question 39

Well-pleaded complaint rule

Answer 39

1 A statement of the grounds of SMJ
2 A short and plain statement of the claim showing that P is entitled to relief
3 A demand for the relief sought

Standard: Sufficient facts to support a PLAUSIBLE claim

Question 40

CAFA

Answer 40

CAFA grants SMJ separate from diversity of citizenship jurisdiction. It lets a federal court hear a class action if:
-There are at least 100 members;
-Any class member, not just the representative, is of diverse citizenship from any defendant; and
-The aggregated claims of the class exceed $5 million.
-Also, any one defendant, even an in-state defendant, may remove the case from state to federal court.
-All this makes it easier for interstate class actions to go to federal court.

Question 41

Even if requirements for SJ are met, court has discretion to decline it if

Answer 41

i. the state law claim is complex or state law issues would predomi¬nate in the case. OR
ii. the claim on which federal SMJ is based is dismissed early in the case.

Question 42

Striking, amending pleadings

Answer 42

Before responding to a pleading, a party may move for a more definite statement if the moving party received a pleading that is so vague or ambiguous that a responsive pleading cannot reasonably be framed. If a court grants an order based on a party’s motion for a more definite statement, the opposing party has 14 days (unless the court specifies a different time) to comply with the order. If a pleading fails to state a cause of action, the proper motion is a motion to dismiss for failure to state a cause of action. If a pleading presents any redundant, immaterial, impertinent, or scandalous matter, it may be the basis for a motion to strike certain portions of the pleadings, but it is not the basis for a motion for a more definite statement.
A party may move to strike parts of a pleading before responding to a pleading (or within 21 days after service of a pleading if no responsive pleading is permitted).
If Plaintiff failed to file a motion to strike, Plaintiff can object to the failure to state a sufficient defense, but cannot object to the redundant matter at trial. An objection to failure to state a legal defense to a claim can be made by motion for judgment on the pleadings or at trial. Objections to redundant, immaterial, impertinent or scandalous matters in the pleadings must be made before responding to the pleading, or within 21 days after service of the pleading if no responsive pleading is permitted.

Question 43

Necessary and Indispensable Parties

Answer 43

Means that it’s necessary to join the party if feasible.

(1) Is the absentee necessary/required?
Test A: Can complete relief be accorded among existing parties?
Test B: Will absentee’s interest be harmed?
Test C: Will D be subject to multiple or inconsistent liability?

(2) Can absentee be joined?
Is there PJ over absentee? AND
Is there SMJ over the claim by or against absentee? (court will treat absentee as a p or d to decide diversity)

(3) If no, can the case proceed without the absentee?
Court will decide by considering prejudice to absentee and parties, adequacy of judgment, ability to shape relief to avoid prejudice, availability of alternatives
-Will proceed with absentee or dismiss entire case

Question 44

Jurors can bring into the room

Answer 44

jurors’ notes from the trial, exhibits formally admitted into evidence, and instructions formally admitted into evidence. Jurors cannot engage in experiments

Question 45

7th Amendment

Answer 45

The Seventh Amendment provides the right to a jury trial in federal courts for the determination of facts in all suits at common law where the amount in controversy exceeds $20. The Supreme Court has held that when legal and equitable claims are joined in one action, the legal claim should be tried first to the jury and then the equitable claim should be decided by the court. The jury’s fact determinations bind the judge.

Question 46

Offer of Judgment

Answer 46

If a defending party timely serves a formal offer to have judgment entered against it on specific terms, it is deemed a valid offer unless it explicitly or implicitly excludes costs.

A defendant can submit formal offers to settle the case up to 14 days before trial. The benefit is that the rule contains cost-shifting provisions that apply when a plaintiff rejects an offer to settle and doesn’t do as well at trial as the offer.

Question 47

Motion for relief from judgment

Answer 47

(1) clerical error (any time)
(2) mistake, excusable neglect (reasonable time never more than 1 year)
(3) fraud, misrepresentation, misconduct by opposing party (reasonable time never more than 1 year)
(4) Newly discovered evidence that could not have
been discovered with due diligence for a new trial motion. (reasonable time never more than 1 year)
(5) Judgment is void (reasonable time, no max)

Question 48

Collateral order doctrine

Answer 48

Exception from final judgment rule

Appellate court has discretion to hear appeal on an issue that:
-Is distinct from the merits of the case;
-Involves an important legal question; and
-Is essentially unreviewable if parties await a final judgment.

Question 49

Standard of review: question of fact in bench trial

Answer 49

Clearly erroneous

Question 50

Standard of review: question of fact in jury trial

Answer 50

affirm unless reasonable people could not have
made that finding

Question 51

Standard of review: question of law

Answer 51

De novo

Question 52

Standard of review: discretionary matters

Answer 52

Abuse of discretion

Question 53

JMOL

Answer 53

A court cannot grant a motion for judgment as a matter of law (“JMOL”) until the nonmoving party has been fully heard and the court has found that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue

Question 54

SJ

Answer 54

no genuine dispute of material fact
can occur during discovery, no more than 30 days after close of discovery

Question 55

motion for new trial

Answer 55

A new trial may be granted when the verdict is excessive, inadequate, or against the weight of the evidence. Note that a new trial also may be granted because of an error during the trial (usually going to the admissibility of evidence or the propriety of the instructions) or because of jury misconduct.
When a verdict shows on its face that the jury failed to follow the court’s instructions, the verdict may be set aside, and either the jury will be asked to reconsider its verdict or a new trial will be ordered

Question 56

Expert witnesses

Answer 56

An expert witness must prepare and sign a report stating the expert’s qualifications, the opinions to be expressed, and the basis for those opinions. Generally, disclosures regarding expert witnesses must be made at least 90 days before trial.

Question 57

When does an action commence (for SOL)?

Answer 57

When claim is filed

Question 58

Depositions (number of)

Answer 58

As part of the discovery process, a party may NOT take more than 10 depositions without leave of court or stipulation of the parties.

Question 59

Duty to supplement

Answer 59

A party must supplement (1) disclosures, (2) prior responses to interrogatories, requests for production and requests for admissions, (3) expert’s reports and (4) depositions of experts when the party learns that the information disclosed was materially incomplete or incorrect and the new information has not been made known to the other party in discovery or in writing.