Constitutional Law Flashcards
1
Q
In a complaint, what must be shown in the statement of facts alleging fraud or mistake?
A
In a complaint, what must be shown in the statement of facts alleging fraud or mistake?
The facts must describe the fraud with specific particularity
2
Q
What are hints that it may be Post-Facto?
A
What are hints that it may be Post-Facto?
Gov’t Retroactively tries to:
1. Create a new crime and punish people for it.
2. Assign more punishment to a past crime
3. Reduce the evidentiary burden required for conviction
4. Rehabilitate the statute of limitations after it has expired.
3
Q
What does the Commerce Clause NOT allow Congress to regulate?
A
What does the Commerce Clause NOT allow Congress to regulate?
- Cannot use the power to regulate intrastate non-economic activity AND
- Cannot use the power to overcome state sovereign immunity.
4
Q
What is the Coercion Test?
A
Government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) religion.
5
Q
What are the elements for Bills of Attainder?
A
What are the elements for Bills of Attainder?
Legislation that inflicts punishment without a trial and singles out named individuals or a designated group for past conduct.
6
Q
When must Process be served?
A
When must Process be served?
Within 120 days of filing the complaint
7
Q
What are two common impleader claims?
A
What are two common impleader claims?
- Contribution Claims
- Indemnity Claims (Claims against insurers)
8
Q
When does a State enjoy immunity from Federal Taxation if the tax is applied to?
A
When does a State enjoy immunity from Federal Taxation if the tax is applied to?
- Unique Activities of the state government (ex State Legislation)
- Essential Gov’t Functions
9
Q
What are the war and defense powers of Congress in a time of war?
A
What are the war and defense powers of Congress in a time of war?
- Declare a draft
- Impose price controls
- Confine/Exclude civilians from an area
10
Q
What is the effect of claim preclusion?
A
What is the effect of claim preclusion?
It bars a claimants from relitigating a case that they have already lost
11
Q
What must be shown under the Contract Clause?
A
What must be shown under the Contract Clause?
1. The law is necessary to achieve an important and legitimate public interest
2. The regulation is reasonable AND
3. The regulation is a narrowly tailored means of promoting that interest
Generally, the Gov’t passes unless it is trying to get out of its own contracts
12
Q
What does the Privileges and Immunities Clause under the 14th Amendment protect?
A
What does the Privileges and Immunities Clause under the 14th Amendment protect?
Interstate travel when a citizen is to become a resident of a new state.
13
Q
When can Congress place a condition on the receipt of federal funds?
A
When can Congress place a condition on the receipt of federal funds?
- Spending serves the general welfare
- Condition on funds is ambiguous
- Condition on funds relates to Federal Program Spending
- The State is not required to break the Constitution
- There cannot be Coercion (No bright line rule to determine this).
14
Q
What does the 15th Amendment Ban?
A
What does the 15th Amendment Ban?
Discrimination in voting based solely on race
15
Q
How long does the Defendant have to file Removal JDX?
A
How long does the Defendant have to file Removal JDX?
30 days from Process of Service
If Multiple Defendants, they have 30 days from when the final D was served. Cannot do so prior to the service of the final D.
16
Q
What defenses must be included in Defendant’s answer or else they are waived?
A
- Lack of Personal JDX
- Improper Venue
- Insufficient Process
- Insufficient Service of Process
17
Q
If there is a question with discrimination based upon illegitimacy on the MBE, it will likely be held…..?
A
If there is a question with discrimination based upon illegitimacy on the MBE, it will likely be held…..?
Unconstitutional because it serves no important government interest.
18
Q
What is the Lemon Test?
A
- Primary purpose is sectarian, or
- Primary effect is sectarian, or
- There is excessive entanglement between government and religion.
19
Q
Where is an unincorporated association a citizen?
A
Where is an unincorporated association a citizen?
It is a citizen of every state where their members are citizens
20
Q
What is the Standard of Review when the trial courts are imbued with significant discretion in their rulings?
A
What is the Standard of Review when the trial courts are imbued with significant discretion in their rulings?
Abuse of Discretion Standard
When must a party file a notice of appeal?
Within 30 days of the final judgment or order that you are appealing
21
Q
If the Removal is for Diversity JDX, how long does Defendant have?
A
If the Removal is for Diversity JDX, how long does Defendant have
30 days from when it became apparent
Up to one year
22
Q
In a complaint, what must be included in the statement of facts?
A
In a complaint, what must be included in the statement of facts?
Facts sufficient to show that the plaintiff is entitled to relief.
23
Q
What defenses are nonwaivable?
A
What defenses are nonwaivable?
- Failure to state a claim upon which relief can be granted
- Failure to join a necessary party
- Lack of Subject Matter JDX
24
Q
What does the 13th Amendment Ban?
A
What does the 13th Amendment Ban?
Slavery
25
Where does the right to vote in state elections come from?
Where does the right to vote in state elections come from?
| The Equal Protection Clause of the 14th Amendment
26
Which Fundamental Rights receive strict Scrutiny?
Contraception
Abortion (undue burden test)
Marriage
Procreation/Parental Rights
Education (Rational Basis)
Relations--living with extended family
Sexual Intimacy (Rational basis test---Gov't almost never has a rational basis for regulating what goes on in the bedroom)
**Voting
**Interstate Travel (14A Privileges & Immunities)
Bearing Arms (unspecified which level of scrutiny)
Refusing Medical Treatment (unspecified which level of scrutiny
27
What are four examples of unconstitutional Gender discrimination?
What are four examples of unconstitutional Gender discrimination?
1. Estate Administration
2. Military Housing
3. Alimony Payments
4. Drinking Age (Cannot be higher for men than women)
28
When is permissive joinder allowed?
When is permissive joinder allowed?
Multiple Defendants or Plaintiffs can join if:
1. Claims arise out of the same transaction or occurrence AND
2. There is a common question of law to all parties joined
29
When may a Temporary Restraining Order be granted Ex Parte?
When may a Temporary Restraining Order be granted Ex Parte?
P must show:
1. They tried to give notice AND
2. There will be immediate irreparable harm to the plaintiff without the Restraining Order.
30
What types of claims allow for the filing of a cross-claim?
What types of claims allow for the filing of a cross-claim?
| *Must arise out of the same transaction or occurrence of P’s underlying claims
31
What Classifies Something as a Fundamental Right?
1. Deeply rooted in Nation's History and Tradition
| 2. Implicit in the concept of ordered liberty, reason, judgment, or new insight
32
What are the steps to evaluating a Motion for Summary Judgment?
What are the steps to evaluating a Motion for Summary Judgment?
1. Show that the nonmovant lacks sufficient facts and/or law to prevail on the claim or defense in question in front of a jury
2. The non-movant must fail to provide evidence such that a reasonable jury would find in their favor
33
What are the defendant’s options when filing an answer to Service?
What are the defendant’s options when filing an answer to Service?
1. An answer
2. A motion for a more definite statement
3. A motion to strike OR
4. A motion to dismiss
34
What are the Categories of Ex Post Facto?
1. Criminalizes an act that was innocent when done
2. Makes a crime greater than when committed
3. Set a greater punishment than when the act was done
4. Reducing evidence required to convict from what was required at the time of the act.
35
When does the right to vote on the basis of “one person, one vote” not apply?
When does the right to vote on the basis of “one person, one vote” not apply?
In limited-purpose elections
36
Federal Circuit Courts have JDX to hear appeals seeking what?
Federal Circuit Courts have JDX to hear appeals seeking what?
1. Final Judgments
2. Orders for preliminary injunctive relief
3. Orders certifying a class
4. Orders that have been certified by the District Court
5. Collateral Orders
37
What does the Necessary and Proper Clause allow Congress to do?
What does the Necessary and Proper Clause allow Congress to do?
If Congress is pursuing some end it can choose whatever means necessary and proper to pursue that end.
38
How can the notice requirement of due process be fulfilled?
How can the notice requirement of due process be fulfilled?
1. Effective service and process OR
2. The plaintiff taking steps that are reasonably calculated to inform the defendant of the action against him
39
What is Congress’ power of Eminent Domain?
What is Congress’ power of Eminent Domain?
| Congress can take property for public use if they give just compensation
40
When must a party file a notice of appeal?
When must a party file a notice of appeal?
| Within 30 days of the final judgment or order that you are appealing
41
Who is subject to Rule 11 Sanctions?
Who is subject to Rule 11 Sanctions?
1. Any person or entity that has committed a Rule 11 violation. Except that parties may not be subject to monetary sanctions for violating the Good Law requirement.
2. When an attorney is found to have violated Rule 11, the attorney’s law firm must be held jointly liable absent exceptional circumstances.
42
Who files a cross-claim?
Who files a cross-claim?
| A party against a co-party (D1 against D2)
43
What must Service of Process contain?
What must Service of Process contain?
1. A copy of the complaint
2. A summons, a court document that informs the defendant that the complaint has actually been filed and that he must respond to it, or else be held in default
44
Removal is ONLY an option for who?
Defendants
45
What does Federal Sovereign Immunity mean?
What does Federal Sovereign Immunity mean?
| The Federal Government cannot be sued without its consent
46
What is Congress' Commerce Power?
Congress may regulate Commerce with:
1. Foreign Agent
2. Indian Tribes
3. Among States
47
Once a cross-claim has been filed, the co-defendant Is free to file what claims?
Once a cross-claim has been filed, the co-defendant Is free to file what claims?
Counterclaims. Compulsory or permissive.
48
What power does the State have?
What power does the State have?
| Police Power
49
What are two common impleader claims?
What are two common impleader claims?
1. Contribution Claims
2. Indemnity Claims (Claims against insurers)
50
What does Procedural Due Process require?
1. Notice
2. Opportunity to be heard
3. Neutral Decision-maker
51
What are they types of Federal Subject Matter JDX?
What are they types of Federal Subject Matter JDX?
1. Federal Question
2. Diversity
3. Supplemental
4. Removal
52
What classes fall under intermediate Scrutiny?
1) Gender
2) Illegitimacy
3) Undocumented Alien children (maybe)
53
What gets Strict Scrutiny?
What gets Strict Scrutiny?
1. Sex
2. Illegitimacy of birth
3. Race
4. U.S. Citizenship if done by States
54
If the Defendant waives service of process then how long does the defendant have to respond to a complaint?
If the Defendant waives service of process then how long does the defendant have to respond to a complaint?
60 days
55
What are the timing requirements of impleader claims?
What are the timing requirements of impleader claims?
1. Within 14 days of serving an answer OR
2. With permission of the court
56
What does the Speech and Debate Clause Prohibit?
What does the Speech and Debate Clause Prohibit?
| Punishing any member of Congress for words spoken on the floor of the House or Senate
57
What is the source of State Equal Protection Laws?
What is the source of State Equal Protection Laws?
| 14th Amendment
58
What does the 11th Amendment Bar?
What does the 11th Amendment Bar?
| A private citizen from suing a state for money damages
59
What are the exclusive powers reserved for the Federal Government that States are not entitled to?
What are the exclusive powers reserved for the Federal Government that States are not entitled to?
1. Coining Money
2. Effecting Foreign Relations
3. Raising an Army
60
What are the required steps if Joinder is deemed Necessary?
What are the required steps if Joinder is deemed Necessary?
Step one: Join the party if available
Step two: If the necessary party cannot be joined, determine whether the necessary party is indispensable.
Step three: If the party IS indispensable, dismiss the case.
61
What is the Source of the Federal Equal Protection Laws?
What is the Source of the Federal Equal Protection Laws?
| 5th Amendment
62
How long does a Defendant has to respond to a complaint?
How long does a Defendant has to respond to a complaint?
| 21 Days. Must be filed by 10am on the Monday closest to the 21st day.
63
When can an order for preliminary Injunctive Relief be Appealed?
When can an order for preliminary Injunctive Relief be Appealed?
Immediately appealed for either the granting or denial of:
1. Preliminary Injunction OR
2. Temporary Restraining Order
64
What Amendments apply to Procedural Due Process?
5th Amendment applies to Federal Gov't
| 14th Amendment applies to States
65
What elements are required for a Preliminary Injunction?
What elements are required for a Preliminary Injunction?
1) Notice on the Adverse party
2) Likelihood that P will succeed on the merits
3) Irreparable harm to the plaintiff is imminent
4) Balance of hardships favors an injunction (harm to the plaintiff denied if greater harm will come to D).
5) Injunction is in the public’s best interest
6) Payment of a security deposit (P puts up a security deposit to compensate the D for harm against him due to the injunction).
* *Same elements for a Temporary Restraining Order*
66
What is the Neutrality Test?
Government must remain neutral with respect to religion, neither favoring nor disfavoring it.
67
When must an appellant file a notice of appeal for an order granting or denying class certification?
```
When must an appellant file a notice of appeal for an order granting or denying class certification?
14 Days
```
After the initial Service, when must a D be served again?
When a new party, not a new claim, has been added to the lawsuit
68
What are the steps in Analyzing an Equal Protection Problem?
What are the steps in Analyzing an Equal Protection Problem?
1. Identify the status of the actor discriminating (Gov’t or private?)
2. If Gov’t, identify the type of discrimination. If private, Equal Protection does not apply .
3. Identify and apply the level of scrutiny attached to that discrimination.
69
What is the test for voting registration, time place, and manner regulations?
What is the test for voting registration, time place, and manner regulations?
Rational Basis + no undue burden
70
What is the duration of a Temporary Restraining Order?
What is the duration of a Temporary Restraining Order?
| 14 days
71
What factors will the court weigh when granting permission from the court to amend a complaint?
What factors will the court weigh when granting permission from the court to amend a complaint?
1. The reason for the amendment in the context of timing (not blameworthy)
2. If the amendment will prejudice the other party
72
When does a person’s citizenship change?
1. They reside in a new place AND
| 2. Intend to remain indefinitely in that new place
73
When is a Tax Valid?
When is a Tax Valid?
If the answer is YES to any one of the following:
1. The tax raises revenue
2. The tax was intended to raise revenue OR
3. The tax is being used as a regulatory device.
74
The Collateral Order Doctrine permits a party to appeal an order if what three conditions are met?
The Collateral Order Doctrine permits a party to appeal an order if what three conditions are met?
1. The order pertains to a matter unrelated to the merits of the case before the court
2. The order conclusively decides a particular issue
3. Delaying appeal until a final judgment has been issued would effectively deny appellate review of the issue.
75
After the initial Service, when must a D be served again?
After the initial Service, when must a D be served again?
| When a new party, not a new claim, has been added to the lawsuit
76
When does the Supreme Court hear a case?
When there has been a final judgment by the highest court capable of rendering a decision.
Will not hear if there are Independent and Adequate State Grounds
77
What is the Contracts Clause and to Whom does it apply?
The Contracts Clause says that no State shall pass any law impairing the Obligation of Contracts. When passing a regulation that affects private contracts, the level of review is whether there was a "substantial impairment" of existing rights it is impermissible state action UNLESS 1. There is an important gov't purpose, and 2. Means are reasonably related.
For Public Contracts there is heightened scrutiny for state action that would essentially alter their contract obligations.
78
When must a Compulsory Counterclaim be filed?
When must a Compulsory Counterclaim be filed?
| At the time of suit. May not be brought later---prohibited by law of Joinder.
79
What is the Cumulative Effect Doctrine?
What is the Cumulative Effect Doctrine?
A substantial effect on interstate commerce can be found by looking at how the sum of a specific action across a market effects commerce. To analyze an issue under this doctrine, look at the cumulative effect of all actions of those similarly situated to see if there is a substantial effect on interstate commerce.
80
What is the Anti-Commandeering Principle?
Based on the 10th Amendment powers. Congress cannot compel states to enact or administer federal programs.
81
What are the Standards of Review that a court may use to review a case from a lower court?
What are the Standards of Review that a court may use to review a case from a lower court?
1. De novo
2. Clearly Erroneous
3. Abuse of Discretion Standard
82
What defenses does a defendant NEVER lose?
What defenses does a defendant NEVER lose?
| 1. Subject Matter JDX
83
What level of scrutiny is Gender given?
What level of scrutiny is Gender given?
| Intermediate Scrutiny
84
When is a party Necessary?
When is a party Necessary?
1. The party has an interest that might be impaired if the party is left out of the litigation
2. If complete relief cannot be issued in the party’s absence OR
3. If the current parties would be subject to duplicative or inconsistent liability if the party is not joined.
85
What are the ways a private individual can sue a state?
What are the ways a private individual can sue a state?
1. Through an injunction AND
2. When federal law provides a cause of action through the enforcement powers of the 13th-15th Amendments.
86
What are the Taxing and Spending Powers?
Congress may Tax and spend to provide for the General Public Welfare. This includes:
Includes any right not prohibited by the Const.
87
When can the Federal Government tax a state?
When can the Federal Government tax a state?
| When there is a private-business counterpart to the activity the state is conducting
88
What are examples of Congress' Enumerated Powers?
Citizenship, Bankruptcy, Federal Property, Patents and Copyright, post offices, coining money, territories and D.C., declaring war, raising and supporting armies, providing and maintaining navy.
89
What defenses must a defendant include before the trial ends or else they are waived?
1. Failure to state a claim upon which relief may be granted
| 2. Failure to join a necessary party
90
What is the Test applied to non-resident Discrimination?
What is the Test applied to non-resident Discrimination?
| Must be a substantial connection between the discrimination and a substantial state interest.
91
What are the war and defense powers of Congress in a time of peace?
What are the war and defense powers of Congress in a time of peace?
1. Congress has the power to declare war
2. Congress has the power to raise and maintain an army (and airforce)
3. Congress has the power to raise and maintain a Navy
4. Congress has the power to raise a militia
5. Congress has the power to establish military courts for US Service members and enemies
92
What is the History and Tradition Approach?
Sometimes the Court sets aside the principles of the Lemon test and Endorsement test and finds that a state religious display or practice is tolerable acknowledgment of the role religion has played in the History and Tradition of the nation. (Grandfathered in)
93
When can Congress regulate non-economic activity through the Commerce Clause?
When can Congress regulate non-economic activity through the Commerce Clause?
When the regulation is a result of a comprehensive scheme.
94
What does the Commerce Power allow Congress to regulate?
What does the Commerce Power allow Congress to regulate?
1. Channels of interstate commerce (highways, waterways)
2. Instrumentalities of Interstate Commerce (cars, ships, trucks, airplanes)
3. Activities that “substantially effect interstate commerce).
95
When is complete diversity not required for diversity jdx?
When is complete diversity not required for diversity jdx?
Class Action Lawsuits if:
1. There are more than 100 members in the plaintiff’s class
2. The amount in controversy is greater than $5 Million AND
3. Any single member of the class is diverse from any single defendant
96
What are the Enumerated Powers of Congress?
What are the Enumerated Powers of Congress?
1. Commerce
2. Taxing
3. Spending
97
Rule 11 Sanctions are appropriate for violations of what principles?
Rule 11 Sanctions are appropriate for violations of what principles?
1. Good Faith
2. Good Facts
3. Good law, unless advocating for Good faith change to existing law.
98
What are the Federal Immunities?
What are the Federal Immunities?
1. Sovereign Immunity
2. Supremacy Clause
3. Taxation of Federal Gov’t by a State
99
What is an Ex Post Facto laws?
Ex Post Facto laws are laws that retroactively criminalize behavior so as to allow for the imposition of a penalty on a former allowable action. This is prohibited by the State AND Federal Gov't.
100
What does the Contract Clause of the Constitution apply to?
What does the Contract Clause of the Constitution apply to?
| A state law that substantially impairs existing contract rights
101
What are the three requirements for Standing?
1. Injury
2. Causation
3. Redressability
102
What does Congress’ Investigatory Power allow it to do?
What does Congress’ Investigatory Power allow it to do?
Investigate anything related to any of its law making functions, but cannot limit the rights of persons under investigation
103
What are the elements of a Certified Order?
What are the elements of a Certified Order?
1. The order involves a controlling question of law
2. The issue of law is one of which there is a substantial difference of options
3. An immediate appeal will materially advance the ultimate resolution of the action
104
What is the Free Exercise Clause?
Traditional religion as well as beliefs that play role in life of believer similar to the role that religion plays in the life of traditional adherents.
To decide religious claims, the government/court may inquire as to the sincerity of the religious beliefs but not their truth
105
How can Congress create a Federal Agency?
How can Congress create a Federal Agency?
| By passing legislation that gives the agency some intelligible principle to guide the agency’s actions
106
What is the general rule for gender based affirmative action?
What is the general rule for gender based affirmative action?
Will be upheld if it is making up for the past mistakes of society
107
When may Removal JDX be envoked?
When may Removal JDX be envoked?
A defendant can remove a case from state to Federal Court if the original well-pleaded complaint by the plaintiff could have been filed in Federal Court (Diversity or FQ).
What about Multiple Defendants? They must ALL agree to the removal.
108
What does the ban on ex post facto laws prevent?
What does the ban on ex post facto laws prevent?
| Punishment for crimes under a new standard
109
What are two examples of Gender Discrimination?
What are two examples of Gender Discrimination?
1. The Draft---Discriminates against females
2. Statutory Rape---Discriminates against males
110
Who controls the laws regarding Immigration and Naturalization Procedures?
Who controls the laws regarding Immigration and Naturalization Procedures?
Congress
111
What are Congress’ three sources of power to legislate?
What are Congress’ three sources of power to legislate?
1. Enumerated Powers
2. Enabling Clause
3. Necessary and Proper Clause
112
What are the limitations on Congress’ ability to enforce the 13th-15th Amendments?
What are the limitations on Congress’ ability to enforce the 13th-15th Amendments?
1. Congress can only enforce the 14th and 15th Amendment against the states
2. Congress has the burden of proving a violation
3. The remedy Congress seeks has to be congruent and proportional to preventing a violation of the 13th-15th amendment
113
When is a Motion to Strike Appropriate?
When is a Motion to Strike Appropriate?
If a complaint or answer contains redundant or immaterial or scandalous matters, the court may on its own or by motion to strike
114
On what does Congress have the power to spend?
On what does Congress have the power to spend?
| Anything remotely related to the general welfare of the people
115
What must a Complaint Contain? (3 Elements)
What must a Complaint Contain? (3 Elements)
1. Grounds for Subject Matter JDX
2. Statement of Facts
3. Demand for Judgment and Relief
116
What is an impleader claim?
What is an impleader claim?
| A claim brought against somebody who is not yet involved in the lawsuit.
117
What is the amount in controversy requirement when there are multiple claims against the same defendant?
What is the amount in controversy requirement when there are multiple claims against the same defendant?
*All together must equal $75,000 **If there are multiple defendants, each one must be $75,000 to qualify**
118
What is the distinction between Bills of Attainder and Ex Post Facto?
What is the distinction between Bills of Attainder and Ex Post Facto?
Ex Post Facto laws do not single people out and the affected parties are only punished after a trial.
119
What is the Bright-Line Rule for Regulatory Takings?
It is a taking if the regulation on use does not merely diminish property value, but leaves no economically viable use.
120
What are the requirements of a well-pleaded complaint?
What are the requirements of a well-pleaded complaint?
| The federal claim must be in the plaintiff’s affirmative side, not a defense or in anticipation of a defense.
121
What type of speech is NOT protected under the First Amendment?
1. Incitement
2. Fighting Words
3. True Threats
4. Obscenity
5. Child Pornography
6. Defamation with actual malice
7. Commercial Speech (False, misleading, or illegal)
122
What does the 14th Amendment Ban?
```
What does the 14th Amendment Ban?
States from violating the following clauses:
1. Due Process
2. Equal Protection
3. Privileges and Immunities
```
123
What is the Scope of the Enabling Clause?
What is the Scope of the Enabling Clause?
| Give Congress the power to enforce the 13th, 14th, and 15th amendments
124
When may an Impleader claim be brought?
When may an Impleader claim be brought?
| Only if the claim alleges a third party is responsible for some or all of the liability facing the defending party
125
Where do you file a notice of appeal?
Where do you file a notice of appeal?
| The District Court
126
What happens if the Defendant fails to include a defense in his answer?
What happens if the Defendant fails to include a defense in his answer?
The defendant forfeits that defense
127
When will the filing date of amendments seeking to add a new claim relate back to the original filing date?
When will the filing date of amendments seeking to add a new claim relate back to the original filing date?
When the new claim arises out of the same transaction or occurrence
128
If D files a motion for a more definite statement and the motion is denied how long does D have to file an answer?
If D files a motion for a more definite statement and the motion is denied how long does D have to file an answer?
14 days from the Denial
129
What types of speech are partially protected?
1. Defamation about public officials, public figures, or matters of public concern
2. Commercial Speech (NOT false, misleading or illegal)
130
What is the Obscenity Test?
Depiction of sexual conduct that taken as a whole, by contemporary community standards,
1. Appeals to the Pruriant in sex
2. Is patently offensive, AND
3. Lacks serious social value by National Standards
131
What are the Grounds for a Motion to Dismiss?
1. Lack of Subject Matter JDX
2. Improper Venue
3. Lack of personal JDX
4. Failure to state a claim upon which relief can be granted
5. Insufficient Process
6. Failure to join an Indispensable party
132
What is the Incitement Test
Advocacy of lawless action that is:
1. Intended to produce imminently lawless action AND
2. It is likely to produce imminent lawless action
133
Define De Novo Review
Define De Novo Review
The Appellate court grants no deference to the lower court’s application of the law to the facts on the record and arrives at a decision independently of the law application used in the lower court.
134
What types of Judgment are Immediately Appealable?
What types of Judgment are Immediately Appealable?
1. Preliminary injunctive Relief
2. Class Certifications
3. Certified Orders
135
How should a party seek sanctions for Rule 11 Violations?
How should a party seek sanctions for Rule 11 Violations?
1. Draft a motion and give it to the offending party THEN
2. Wait 21 days after service for the offending party to withdraw. Then, if not withdrawn, file it with the court.
136
What classes are covered under Rational Basis?
1) Age
2) Disability
3) Alienage Classification by Congress
4) Alienage Classification by state related to democratic governance
* All other classifications
137
What is the Standard of Review applied when a lower court made an error in its assessment of the law?
What is the Standard of Review applied when a lower court made an error in its assessment of the law?
De Novo
138
What does removal JDX permit?
What does removal JDX permit?
| A Federal Court to hear a case that was originally filed in State court
139
When can Appellate courts affirm an error of a lower court?
When can Appellate courts affirm an error of a lower court?
| When the error was harmless
140
What classes get Strict Scrutiny?
1) Race
2) National Origin
3) Alienage Classifications by state generally
4) Denial of fundamental rights to some
141
The 14th and 15th Amendment are only enforceable against whom?
The 14th and 15th Amendment are only enforceable against whom?
The States
142
What is the Standard of Review Applied when Appellant claims a Factual Mistake by the lower court?
Clearly Erroneous
143
What is the Home-State Defendant Rule?
What is the Home-State Defendant Rule?
Prohibits Removal by Defendant
1. Federal jdx would be grounded only in diversity jdx
2. The defendant is a resident of the State in which the claim was originally filed.
144
What is the duration of a preliminary injunction?
What is the duration of a preliminary injunction?
| The entirety of the lawsuit
145
What does Bills of Attainder prevent?
Neither State nor Federal government may pass a legislation that designates Individuals for punishment without judicial trial.
146
Is the Necessary and Proper clause enough?
Is the Necessary and Proper clause enough?
| No. Generally needs to be combined with another source of power in order to justify legislation.
