Constitutional law

Question 1

State sovereign immunity

Answer 1

State cannot be sued in fed court unless

Consent

Injunctive or dec action

Damages paid by officer

13th 14th 15th amendment

Question 2

Dormant commerce clause

Answer 2

Cannot discriminate against out of state commerce
- unless necessary to important interest. Lease restrictive means i
Unduly burden interstates
- balabcinf test- law or less restrictive alternatives
Or wholly outside activity

Can participate in market

Can favor state or local gov if performing traditional function

Question 3

State actions - trigger due process and equal protection

Answer 3

Private person doing traditional tradition government functions exclusively

Contacts between party and gov such that they are intertwined or joint venture or

Specia entity created by law and controlled by gov

Question 4

Procedural Due Process

Answer 4

Fundamental fairness- notice and hearing? Ask

Is interest protected if so what process?

Price and hearing - look at interested affected, risk of errenous judgment interest in additional process including burden on gov.

Question 5

Substantive due process FUNDAMENTAL RIGHTS

Answer 5

Strict scrutiny - least restrictive means compelling interest

Rational basis - rationally related to legitimate interest

Fundamental rights - travel, vote, privacy

Question 6

Equal protection - people treated differently under law

Answer 6

Strict scrutiny - least restrictive means compelling government interest

Intermediate - substantially related to important interest

Rational basis - rationally related to legitimate interest

Question 7

Proving discrimination equal protection

Answer 7

Law discriminates on face

Discriminate application - neutral but applied in bad fashion

Motive - neutral on face and application but disparate impact- motive required

Question 8

Strict Scrutiny classes

Answer 8

Race ethnicity color national origin

Affirmative action- subject to strict scrutiny, must be to remedy prior exact government issue

Alienage law- discriminate against out of state unless they are source of problem

Question 9

Intermediate scrutiny

Answer 9

Gender - exceedingly persuasive

Legitimacy of child

Question 10

Comity clause

Answer 10

Only to citizens

Prohibits discriminating against out of state people with regard to fundamental right or activity

Exception if no residents cause or are part of the problem and no less restrictive means

Question 11

Takings clause

Answer 11

Damage or destruction

Re-characterization

Per se - permanent physical occupation or permanent total loss of property’s value

If essential nexts between state interests and condition on owner and proportional to burden on owner and impact of development

Regulatory taking

1. Economic impact on owner
2. Extent to which regulation interferes with reasonable, investment backed expectations and
3. Character of regulation including benefit to society, distribution among owners, violates essential attributes of property such as exclusive

Public use - health safety welfare and environment or as the tics

Question 12

Just compensation for taking

Answer 12

FMV at time of taking, if worthless to owner no comic portion taken can receive compensation for loss of value in portion attributable by taking but must reduce by benefits if any

Question 13

Freedom of religion Establishment Clause

Answer 13

Of law discriminatory on face, strict scrutiny

Lemon test- statute ok if secular purpose, neither inhibits nor benefits, no excessive government entanglement

Public access- if open to other groups, open to religion

Displays - not if for predominantly religious purpose
If secular moral message, historical or social meaning, may be upheld. Holiday display ok if reasonable person would not see as endorsement

ALWAYS APPLY SS AND LEMON TEST IN EVERY Q

Question 14

Free exercise

Answer 14

Free to believe and act
Does not need to be reasonable belief but person must be sincere

Conduct not always protected. If law specifically targets religious conduct, strict scrutiny

Neutral law general applicability is subject only to rational basis, maybe discuss RFRA

Religious institutions have immunity from discrimination hiring laws of ministers

Question 15

Regulation of speech

Answer 15

Symbolic - must be within gov power
Important government interest, unrelated to suppression OF IDEAS and no greater than necessary

If restriction is over road, can’t enforce if substantial. To prevent chilling effect, over road may be facially invalid

Vague - void it cannot provide person with fair notice of what is prohibited. Grounded in due process notice.

Government speech such as public announcements need not be viewpoint neutral

Gov employee- only protected if speaking as citizen, still must be balanced against interest of state

Question 16

Prior restraint in speech

Answer 16

Almost never permissible

Particular harm, procedural safeguards, narrowly drawn, seek an injunction and prompt final determination burden is in government

Question 17

Time place and manner speech regulation

Answer 17

Traditional public or designated - restrictions must be content neutral, narrowly tailored for significant interest, leave open alternative channels of communication

Public forum injunction - content neutral, no more restriction than necessary to achieve important interest. If not neutral, SS.

Non public forum
Viewpoint neutral, reasonably related to legitimate interest.