Constitutional Law

Question 1

Defamation about Public Official/Figure/involving matter of public concern

Answer 1

First Amendment requires plaintiff to prove all the elements of defamation plus falsity and some degree of fault in order to recover

Question 1

Obscenity

Answer 1

speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person: (i) appeals to the prurient interest in sex, using a contemporary community standard, (ii) is patently offensive under contemporary community standards, AND (iii) lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard

Question 2

Commercial Speech is not protected if:

Answer 2

it is (1) false, (2) misleading, or (3) about illegal products or services

Question 3

Plaintiff can establish ripeness before a law of policy is enforced by showing:

Answer 3

(1) the issues are fit for a judicial decision and (2) the plaintiff would suffer substantial hardship in the absence of review

Question 4

Exceptions to Mootness

Answer 4

(1) controversies capable of repetition but that evade review because of their inherently short duration; (2) cases where the defendant voluntarily stops the offending practice but is free to resume it; and (3) class actions in which the class representative’s controversy has become moot but the claim of at least one other class member is still viable

Question 5

Standing

Answer 5

(1) injury in fact [particularized injury + concrete injury]; (2) Causation; and (3) Redressability

Question 6

Claimant with standing in their own right may assert the rights of a third party if

Answer 6

(1) it is difficult for the third party to assert their own rights, or (2) a close relationship exists between the claimant and the third party

Question 7

Political Questions are ones that

Answer 7

are (1) constitutionally committed to another branch of government or (2) inherently incapable of judicial resolution [challenges to President’s conduct as commander in chief are likely to be viewed as nonjusticiable political questions]

Question 8

Under the spending power, Congress can impose conditions on the grant of money to state or local governments if the conditions

Answer 8

(1) are clearly stated, (2) relate to the purpose of the program, (3) are not unduly coercive, and (4) do not otherwise violate the Constitution

Question 9

A federal law regulating interstate commerce must either

Answer 9

(i) regulate the channels of interstate commerce, (ii) regulate the instrumentalities of interstate commerce and persons and things in interstate commerce, or (iii) regulate activities that have a substantial effect on interstate commerce

Question 10

Anti-commandeering rule does not apply when

Answer 10

Congress regulates an activity in which both the states and private actors engage

Question 11

Implied Preemption: Conflict Between State and Federal Law Requirements

Answer 11

if a state law conflicts with federal law requirements such that it would be impossible to follow both laws, the state law will be held to be impliedly preempted

Question 12

Implied Preemption: State Prevents Achievement of Federal Objective

Answer 12

held to be impliedly preempted even if the state law was enacted for some valid purpose and not to frustrate the federal law

Question 13

Implied Preemption: Field Preemption

Answer 13

a valid federal law may impliedly occupy the entire field, thus barring any state or local law even if the state or local law is nonconflicting; courts will look at regulatory scheme to determine whether Congress intended to preempt the entire field

Question 14

Preemption Presumption

Answer 14

in all preemption cases [but especially in cases involving a field traditionally within the power of the states] courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress

Question 15

Dormant Commerce Clause

Answer 15

if Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce so long as the state or local government doesn’t discriminate against or unduly burden interstate commerce

Question 16

State Regulations that Discriminate Against Interstate Commerce

Answer 16

almost always invalid, but may be valid if it is necessary to achieve an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available

Question 17

State Regulations that Do Not Discriminate Against IC but that Burden IC

Answer 17

will be valid unless the burden outweighs the promotion of legitimate local interest; court will consider whether less restrictive alternatives are available

Question 18

Dormant Commerce Clause Exceptions

Answer 18

Congressional Approval, State as Market Participant, and Laws Favoring Government Performance of Traditional Government Function

Question 19

“Doing Business” Taxes

Answer 19

generally permitted; basic requirements: (1) activity taxes must have a substantial nexus to the taxing state, (2) the tax must be fairly apportioned, (3) the tax must not discriminate against interstate commerce, and (4) the tax must fairly relate to services provided by the state

Question 20

Exceptions to Incorporation

Answer 20

(1) Fifth Amendment prohibition of criminal trials without a grand jury indictment and (2) Seventh Amendment right to a jury trial in civil cases

Question 21

Rational Basis

Answer 21

regulations that do not affect fundamental rights or involve suspect/quasi-suspect classifications are reviewed under this standard: law is upheld if it is rationally related to a legitimate government purpose [law is valid unless it is arbitrary or irrational]

Question 22

Intermediate Scrutiny

Answer 22

regulations involving quasi-suspect classifications [gender and legitimacy] are reviewed under this standard: law is upheld if it is substantially related to an important government purposes

Question 23

Strict Scrutiny

Answer 23

regulations affecting fundamental rights or involving suspect classifications [race, national origin, and alienage] are reviewed under this standard: law is upheld if it is necessary to achieve a compelling government purposes

Question 24

Due Process “Liberty”

Answer 24

deprivation of liberty occurs if a person loses significant freedom of action or is denied a freedom provided by the Constitution or a statute

Question 25

Due Process “Property”

Answer 25

includes not only personal and real property but also government benefits to which there is an entitlement [a reasonable expectation of continued receipt] under state or federal law

Question 26

Procedural Due Process Requirements

Answer 26

Notice, an opportunity to be heard, and a neutral decisionmaker

Question 27

Fundamental Rights

Answer 27

All First Amendment rights, the right to interstate travel, privacy-related rights, and voting

Question 28

Privacy-Related Rights

Answer 28

marriage, procreation, contraception, and childrearing

Question 29

For state and local elections, the populations of voting district must

Answer 29

be substantially equal [variance in the number of person included within districts can’t be unjustifiably large]

Question 30

Congressional Districts within a state must

Answer 30

use almost exact mathematical equality

Question 31

Intent on part of the government to discriminate may be shown by

Answer 31

(1) a law that is discriminatory on its face, (2) discriminatory application of a facially neutral law, or (3) a facially neutral law with a disparate impact on a protected class of people [discriminatory application/effect alone are not enough - legislature’s discriminatory intent must be shown]

Question 32

State and Local Classifications Based on Alienage

Answer 32

generally subject to strict scrutiny; exception: participation in self-government process [voting, jury service, elective office, etc.], which gets rational basis

Question 33

Taking will be found it

Answer 33

there is a confiscation of a person’s property or a permanent or regular physical occupation of a person’s property by the government

Question 34

Fifth Amendment provides that private property may only be taken

Answer 34

(1) for public use and (2) the government must pay just compensation

Question 35

Generally, regulations that merely decrease value of property do not amount to a taking

Answer 35

if they leave an economically viable use for the property; courts will consider (1) government interests sought to be promoted, (2) diminution in value to the owner, and (3) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner

Question 36

Just Compensation

Answer 36

measured by the fair market value of the property taken at the time of the taking

Question 37

Contracts Clause

Answer 37

limits the ability of state and local governments to enact laws that retroactively impair contract rights [doesn’t affect contracts not yet made and doesn’t apply to the federal government]

Question 38

Legislation that substantially impairs an exiting private contract is invalid unless the legislation

Answer 38

serves an important and legitimate public interest and is a reasonable and narrowly tailored means of promoting that interest [intermediate scrutiny]

Question 39

Legislation that impairs a contract to which the state is a party is

Answer 39

tested by the same basic test, but will likely receive heightened scrutiny

Question 40

A statute retroactively alters a law in a substantially prejudicial manner if it

Answer 40

(1) makes criminal an act that was innocent when done, (2) imposes a greater punishment for an act than was imposed for the act when it was done, or (3) reduces the evidence required to convict a person of a crime from what was required when the act was committed

Question 41

Speech includes

Answer 41

word, symbols, and expressive conduct

Question 42

Expressive Conduct

Answer 42

conducts that is inherently expressive, or conduct that is intended to convey a message and reasonably likely to be perceived as conveying a message

Question 43

Fighting Words

Answer 43

personally abusive words that are likely to incite immediate physical retaliation in an average person; speech can be censored if it constitutes fighting words

Question 44

True Threats

Answer 44

no 1A protection; words that are intended to convey to someone a serious threat of bodily harm; speaker must have had some subjective understanding that their threats were of a threatening nature, but a mental state of recklessness is sufficient

Question 45

Defamatory Speech

Answer 45

can be subject to tort liability; if statement is about public official/figure/matter of public concern, 1A requires plaintiff to prove all elements of defamation plus falsity and some degree of fault [actual malice]

Question 46

Actual Malice

Answer 46

plaintiff must prove by clear and convincing evidence that statement was made with knowledge that it was false or reckless disregard as to its truth or falsity

Question 47

Public Officials

Answer 47

those (1) holding or running for elective office at any level and (2) public employees in positions of public importance

Question 48

Public Figures

Answer 48

people who have (1) assumed roles of prominence in society, (2) achieved pervasive fame and notoriety, or (3) thrust themselves into particular public controversies to influence their resolution

Question 49

Matters of Public Concern

Answer 49

issues important to society or democracy

Question 50

Traditional Public Forums

Answer 50

public property that has historically been open to speech-related activities

Question 51

Limited Public Forums

Answer 51

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

Question 52

Nonpublic Forums

Answer 52

government property not historically open generally for speech and assembly and not held open for specific speech activities

Question 53

Government employee’s speech while at work involves a matter of private concern

Answer 53

employer can punish the employee if the speech was disruptive of the work environment