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CA Bar Exam Essay Rules > Constitutional Law > Flashcards

Constitutional Law Flashcards

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1
Q

Federal Case or Controversy Requirement?

A
  1. Must be actual dispute
  2. No political questions
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2
Q

Federal Court Standing - Individual?

A
  1. Actual or imminent Injury
  2. Causation (caused by conduct complained of)
  3. Redressability
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3
Q

Federal Court Standing - Third Party?

A
  1. Individual standing for third party
  2. Special relationship with third party
  3. Difficult for third party to assert her own rights
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4
Q

Federal Court Standing - Organizational?

A
  1. Members have standing on their own
  2. Interests asserted related to organizational purpose
  3. Individual members not required
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5
Q

Federal Court Standing - Taxpayer?

A

Has standing to sue over a federal tax or spending program that violated Establishment Clause.

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6
Q

Ripeness and Mootness?

A

Ripeness: Case will not be heard if only future harm
Mootness: Case will not be heard if controversy eliminated except if harm is capable of repetition or voluntary cessation by defendant.

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7
Q

11th Amendment / Sovereign Immunity?

A
  • Citizens cannot sue State for money damages
  • Citzens can sue local municipalities
  • Citizens can sue State officials for injunctive relief
  • States and Federal government can sue States
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8
Q

Private Action = State Action When:

A
  1. Traditional public function (parks, prisons, elections); or
  2. Government heavily involved (commanding, encouraging, entangled)
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9
Q

Congressional Powers?

A
  • Regulate interstate commerce
  • Regulate intrastate commerce if (1) rational belief of substantial interstate economic effect or (2) direct and substantial effect on interstate commerce
  • Tax and spend
  • War
  • Naturalization
  • Bankruptcy
  • “Necessary and proper” - rationally related to constitutional power
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10
Q

Federal Judicial Powers?

A

Power to review:
1. Cases arising under Constitution or federal law
2. Admiralty
3. Two state
4. Citizens of different states
5. Cases involving foreigner or foreign nations

Exception: Supreme Court will not review if independent and adeqauate state grounds

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11
Q

Federal Executive Powers?

A
  1. Carry out laws
  2. Executive order
  3. Negotiate treaties (Senate approves)
  4. Appointments
  5. Foreign affars
  6. Pardon federal offenses
  7. Veto bills (no line item veto; only full bill)
  8. Executive privilege from disclosure (qualified privilege; can be outweighed by government interest)
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12
Q

Supremacy Clause?

A

Any state law that directly conflicts with federal law, impedes the objectives of federal law, or regulates an area traditionally occupied by Congress will be preempted.

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13
Q

Conflict Preemption?

A

State law is inconsistent with federal law covering same subject matter.

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14
Q

Field Preemption?

A

Where federal government intends to “occupy the entire field,” States cannot regulate in that field.

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15
Q

Dormant Commerce Clause?

A

Restricts States from regulating activity that affects interstate commerce if regulations is (1) discriminatory or (2) unduly burdensome.

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16
Q

Dormant Commerce Clause - Discriminatory on Its Face Allowed If:

A
  1. Necessary to
  2. Important noneconimic government interest; and
  3. No reasonable alternative
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17
Q

Dormant Commerce Clause - Discriminatory As Applied Allowed If:

A

Rational Basis Test

18
Q

Dormant Commerce Clause - Two Discriminatory Regulation Exceptions?

A
  1. State is market participant
  2. Congress’s consent
19
Q

Privileged and Immunities Clause?

A

States cannot discriminate against non-citizens regarding rights fundamental to national unity unless discrimination is substantially related to peculiar source of evil and no less discriminatory alternatives.

Aliens and corporations are not citizens.

20
Q

1st Amendment - Free Exercise Clause

A
  • Government cannot burden exercise of religion unless compelling government interest
  • Generally applicable laws allowed (i.e., law against peyote as a drug)
  • Religious Freedom Restoration Act allows challenge to Federal (not state) law of general applicability if substantial burden on free exercise; gov’t must meet strict scrutiny (narrowly tailored to achieve compelling government interest)
21
Q

1st Amendment - Establishment Clause

A
  • Government cannot endorse/favor religion
  • Incidental effect allowed if benefits wide variety of people
  • If contains sect preference, must survive strict scrutiny (narrowly tailored to achieve compelling government interest)
  • If no sect preference, then need (1) secular purpose; (2) primary effect is not to advance/inhibit religion; and (3) no gov’t entanglement
22
Q

1st Amendment - Free Speech - Content Based?

A

Strict Scrutiny (narrowly tailored to achieve compelling government interest)

23
Q

1st Amendment - Free Speech - Unprotected Categories?

A
  1. Obscenity (prurient interest, patently offensive, lacks serious literary, artistic, political, or scientific value)
  2. Misrepresentation and defamation
  3. Speech intending to incite or produce imminent lawless action
  4. Fighting words that are likely to cause listener to commit act of violence; anger not enough
24
Q

1st Amendment - Free Speech - Content Neutral?

A

Allowed if:
1. Significant government interest
2. Narrowly tailored; and
3. Open alternative channels

25
Q

1st Amendment - Free Speech - Time, Place, Manner Restrictions?

A

Public/Designated Public Places:
* Content and viewpoint neutral
* Significant government interest
* Narrowly tailored
* Open alternative channels

Limited Public/Non-Public Places:
* Viewpoint neutral
* Legitimate government interest
* Reasonably related

26
Q

1st Amendment - Free Speech - Commerical Speech Test?

A
  1. Substantial government interest
  2. Directly advances that interest
  3. Narrowly tailored
27
Q

1st Amendment - Free Speech - Symbolic Speech?

A

Allowed if:
1. Within constitutional power to enact
2. Important government interest
3. Unrelated to speech
4. Prohibits no more speech than necessary

28
Q

Limitations on Free Speech Regulations?

A
  • Vague - not clearly defined
  • Overbroad - punishes both protected and unprotected speech
  • Unfettered discretion - no defined standards
29
Q

1st Amendment - Free Speech - Prior Restraint?

A

Only allowed if:
1. Serious public harm
2. Narrowly drawn standards
3. Final determination (i.e., seek injunction)

30
Q

1st Amendment - Freedom of Association?

A

Protections associations related to 1st Amendment; not general social associations. Only allowed if (strict scrutiny):
1. Compelling government interest
2. Least restrictive means (narrowly tailored)

31
Q

Substantive Due Process?

A

Limits government’s ability to regulate life, liberty, or property.

Fundamental Right (marriage, child bearing, voting, travel, 1st Amendment) = Strict Scrutiny (narrowly tailored to achieve compelling gov’t interest)

Nonfundamental Right (education, employment) = Rational Basis (rationally related to achieve a legitimate government interest)

32
Q

Procedural Due Process?

A

Requires fair process prior to deprivation of life, liberty, or property.

Judicial Proceedings: hearing, counsel, call witnesses, trial, appeal.

Non-Judicial Proceedings: balance private interest, procedural safeguards, and government interest

33
Q

13th Amendment?

A

Prohibits slavery and involuntary servitude by both state and private actors.

34
Q

Equal Protection Clause - Levels of Review?

A
  1. Strict Scrutiny: Nessecary to achieve compelling gov’t interest
  2. Intermediate Scrutiny: Substantially related to important government interest
  3. Rational Basis: Reationally related to legitimate government interest
35
Q

Equal Protection Clause - Classifications?

A
  • Suspect: race, national origin, state alienage
  • Quasi-suspect: gender and illegitimacy
  • Non-suspect: social, economic, other
  • EPC Fundamental Rights: voting, political candidate, access to courts, interstate travel, 1st Amendment
36
Q

Equal Protection Clause - Level of Review Required for Classification?

A
  • Suspect = Strict (necessary and compelling)
  • Quasi-suspect = Intermediate (substantially related and important)
  • Non-suspect = Rational Basis (rationally related and legitimiate)
  • EPC Fundamental Rights = Strict
37
Q

Takings Clause?

A
  • Cannot take private property for public use without just compensation.
  • Public Use = Rationally related to conceivable public purpose
  • Just Comp = Market value
38
Q

Total Taking If:

A
  1. Permanent physical invasion (per se taking); or
  2. Use restriction that denies all economically beneficial use of property
39
Q

Temporay Taking Factors?

A
  1. Economic impact
  2. Reasonable expectations of owner
  3. Length of Delay
  4. Good Faith
40
Q

Regulatory Taking Factors?

A
  1. Character of invasion
  2. Economic impact
  3. Interference with investment backed expectation

CA Bar Exam Essay Rules (16 decks)

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