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Con Law Bar Prep > Individual Rights > Flashcards

Individual Rights Flashcards

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1
Q

equal protection trigger

A

government is treating people differently

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2
Q

can the gov treat people differently?

A

yes the gov can, but we have to apply the 3 scrutiny tests

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3
Q

what are the 3 scrutiny tests?

A

strict, intermediate, and rational basis

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4
Q

what equal protection issues does strict scrutiny cover?

A

race, alienage, and national origin.

here, the gov has the burden to show that

their rule was NECESSARY to achieve a COMPELLING gov purpose

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5
Q

what equal protection issues does intermediate scrutiny cover?

A

applies to gender, illegitimacy

gov has the burden to show that

their rule is SUBSTANTIALLY related to an IMPORTANT gov purpose

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6
Q

what equal protection issues does rational basis cover?

A

applies to everyone else

burden is on the Plaintiff to show that the

rule is not RATIONALLY related to a LEGITIMATE gov interest

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7
Q

two kinds of due process

A
  1. substantive due process
  2. procedural due process
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8
Q

substantive due process def

A

government regulating a right for ALL PEOPLE

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9
Q

examples of substantive due process

A

Example:
o “All citizens must…”
o “All citizens shall not…”
o “If you want to do X, all people must do Y”

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10
Q

what kinds of calibur of rights are there?

A
  1. fundamental and
  2. non-fundamental
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11
Q

What is the level of scrutiny under substantive due process for fundamental rights?

A

strict scrutiny

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12
Q

what are our fundamental rights?

A
  1. the right to vote
  2. the right to free speech
  3. the right to interstate travel
  4. right to privacy
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12
Q

what is the level of scrutiny for non-fundamental rights under substantive due process?

A

rational basis

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13
Q

what is included in our rights to privacy?

A
  1. contraception
  2. marriage
  3. procreation
  4. education
  5. raising a family
    (abortion used to be here but is not anymore - used to be that the gov could not place an undue burden on a woman to have an abortion)
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14
Q

Procedural Due Process def

A

these are property rights:
- gov jobs
- licenses
- public benefits

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15
Q

what is the level of scrutiny for procedural due process issues?

A

no level of scrutiny,
need NOTICE and HEARING - this is required

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16
Q

Do you get notice and hearing if you do not actually have the property right?

A

no, property right must be vested in order to receive notice and hearing under procedural due process

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17
Q

what are the amendment equivalencies for equal protection and due process

A

For federal law equal protection and due process = 5th amendment

for state law equal protection and due process = 14th amendment

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18
Q

when to pick Privileges and Immunities answer choice

A

state passes law that treats NON-RESIDENTS differently

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19
Q

13th vs 15th amendment

A

13th amendment bans slavery, PRIVATE individuals cannot racially discriminate

15th concerns voting and racial discrimination

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20
Q

Takings Clause rule

A
  1. government taking private property
  2. for public use
  3. with just compensation
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21
Q

public benefit def:

A

any overall public benefit

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22
Q

inverse condemnation def:

A

act denies you the economic benefit of the land

value left is worth nothing

23
Q

Establishment clause def

A

gov cannot pass a law that formally sponsors or establishes a religion

23
Q

examples of inverse condemnation

A

Example:
o Put nuclear power plant across from Jon’s house
o Put manure factory across from Jon’s house
o Put exit ramp of a main highway across from Jon’s
house

24
Q

what are the two tests for determining whether the establishment clause has been violated?

A

1) History and Tradition: whether the
challenged government action accords with
historical practices and the Founding
Fathers’ original intent ( e.g., citizens shall
not be coerced into participating in religious
observance)

2) Neutrality: whether the challenged
government action is religiously neutral

25
Q

Free Exercise clause

A

government must remain neutral on practice of religion

26
Q

What if an effect of an otherwise neutral law prohibits religion?

A

then that law is still constitutional. A law NEUTRAL to religion will be constitutional even if the EFFECT prohibits religion

27
Q

what are the two kinds of speech regulation?

A

content-based regulation or content neutral regulation

28
Q

what is content based speech regulation? what standard of review do we use?

A
  • gov stops the message
  • triggers strict scrutiny
29
Q

what is content-neutral speech regulation? What standard of review do we use?

A
  • is a regulation on time, place, and manner
  • where when, and how
  • triggers a form of intermediate scrutiny
30
Q

What is a public forum?

A

Streets and parks, places where everyone has access to

31
Q

What are the requirements for placing a restriction on speech in a public forum?

A
  1. Must further significant government interest
  2. must leave open alternative means of communication
32
Q

What are some non public forums?

A

billboards, signs, buses

33
Q

What is the standard of review for restrictions on speech in non-public forums?

A

restriction must be Reasonably related to a legitimate gov. interest

34
Q

What are some unprotected forms of speech?

A
  1. Obscenity
  2. clear and present danger
  3. fighting words
  4. commercial speech
  5. False/Misleading Advertisement
  6. Prior restraint
  7. unfettered discretion
  8. Overbroad and vague speech
35
Q

What is obscene speech?

A
  • depicts sex in a patently offensive manner
  • lacks any serious literary, artistic, political, or scientific value
36
Q

To what standards do we look to for whether something is obscene?

A

look to the local/community standards

37
Q

what is speech that contains clear and present danger?

A
  • speech that incites imminent violent action
  • speech that is likely to produce violence
38
Q

what is speech that contains fighting words?

A

Harsh language likely to incite an average person to commit violence

39
Q

what is the difference between fighting words and clear and present danger?

A

fighting words = based on the individual
vs
clear and present danger = based on the group

40
Q

what is commercial speech?

A

business related speech

41
Q

What is the standard for regulating commercial speech?

A

restriction/regulation must be narrowly tailored and a REASONABLE fit to a SUBSTANTIAL gov interest

42
Q

What are false or misleading advertisements?

A

speech that provides false or misleading information
- this is never protected

43
Q

what is prior restraint in the context of speech?

A

prior restraint is the act of stopping speech before it is published

  • these are injunctions, gag orders, or other of the likewh
44
Q

what is unfettered discretion in the context of speech?

A

a government official cannot choose or allow one form of speech over another (no picking favorites)

45
Q

what is overbroad and vague speech?

A

a stt cannot be too broad or too vague

keywords: ‘any’ ‘all’ ‘none’ ‘always’

46
Q

What is a bill of attainder?

A

A bill of attainder is a piece of legislation that declares, by name, that a person or group of people is guilty of a crime.

Bills of attainder allow the government to apply a civil punishment a party for a perceived crime without first going through the trial process.

47
Q

simple bill of attainder

A

LOOK FOR: state or federal gov is punishing (giving civil or criminal penalties) an individual or group of people by name

  1. named group or individual
  2. civil or criminal penalty
  3. state or fed gov
48
Q

What are ex post facto laws?

A

laws that retroactively makes an action illegal

49
Q

who can pass ex post facto laws?

A

both state and federal

50
Q

Contracts clause, what is it?

A

the STATE cannot EXPRESSLY impair your ability to enter a contract

51
Q

when is contracts clause the correct answer?

A

only when the facts makes it extremely explicit NEVER ASSUME CONTRACTS CLAUSE

52
Q

State Action def

A

there are no violations of individual rights UNLESS the state or fed gov are doing the violating (ie: no violation of individual rights by private entities UNLESS those private entities are acting as governmental entities/taking over governmental services)

53
Q
A

Con Law Bar Prep (4 decks)

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