INTRODUCTION TO SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION Flashcards

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1
Q

RELATIONSHIP BETWEEN SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION

A
  • DPCs & EPC guarantee fairness of law
  • Substantive due process guarantees laws will be reasonable & not arbitrary, & equal protection guarantees that similarly situated persons will be treated alike.
  • Both guarantees require Ct to review substance of the law rather than procedures employed.
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2
Q

Substantive Due Process

A
  • Where a law limits liberty of all persons to engage in some activity, it is a due process question.
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3
Q

Equal Protection

A
  • Where a law treats a person/class differently from others, it is an equal protection question
  • Ex. equal protection claims may be brought by a class w/ as few as one member
  • However, an at-will gov employee who claims to be a vic of arbitrary discrimination cannot use “class of one” theory to make an equal protection claim.
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4
Q

Examples

A
  • If a law prohibits all persons from purchasing contraceptive devices, there is a due process issue;
  • If law prohibits only purchases by unmarried persons, there is an equal protection issue.
  • A state’s refusal to have any publicly funded schools raises a due process issue;
  • State law that establishes separate schools for children of different races raises an equal protection issue
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5
Q

Note—Clauses Not Necessarily Mutually Exclusive

A
  • Since both clauses protect against unfairness, both may be appropriate challenges to the same governmental act, & a discussion of both may be appropriate in an essay answer.
  • On MBE, however, examiners will probably not include both as alternatives in same question.
  • The above approaches can be used as a rough guideline of when each clause applies.
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6
Q

WHAT STANDARD OF REVIEW WILL THE COURT APPLY?

A
  • Ct employs 1 of 3 tests in reviewing laws under these clauses, depending on circumstances.
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7
Q

Strict Scrutiny (Maximum Scrutiny)

A
  • Strict scrutiny standard: a suspect classification/ fundamental right is involved.
  • Law will be upheld only if it is NECESSARY to achieve a COMPELLING GOV purpose.
  • Always consider whether less burdensome means for accomplishing legislative goal are available.
  • Most governmental action examined under this test fails.
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8
Q

Burden of Proof on Government

A
  • Strict scrutiny standard: gov has burden of proving law is necessary.
  • Ct will not allow a loose fitting law (if law reaches more people/conduct than necessary (overinclusive) or does not reach all the people/conduct sought to be regulated (underinclusive), it will likely be struck down).
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9
Q

Alternative Strict Scrutiny Language

A
  • SC’s language sometimes varies when expressing strict scrutiny standard.
  • It commonly uses language such as “narrowly tailored to achieve a compelling government purpose”/“necessary to achieve an overriding government purpose” in addition to “necessary to achieve a compelling government purpose.”
  • For bar exam purposes, these varying iterations all have the same meaning.
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10
Q

Intermediate Scrutiny

A
  • Intermediate scrutiny: classification based on gender/legitimacy is involved.
  • Law will be upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT GOV purpose.
  • Unclear who has burden of proof, but in most cases, seems to be gov
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11
Q

Rational Basis (Minimal Scrutiny)

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  • Rational basis: used whenever other 2 standards are not applicable (i.e., most legislation).
  • Law will be upheld if RATIONALLY RELATED to LEGIT INTEREST.
  • It is difficult to fail this test, so most governmental action examined under this standard is upheld unless it is arbitrary/irrational.
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12
Q

Burden of Proof on Challenger

A
  • Rational basis standard: laws are presumed valid.
  • Therefore, challenger has burden of proof.
  • This is a very difficult burden to meet, given deference Ct gives to legislatures under rational basis standard. (See below.)
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13
Q

Deference to Legislature

A
  • Rational basis standard: Ct will usually defer to a legislature’s decision that a law is rational.
  • Loose fitting laws are permissible here:
  • The law need not be the best law that could have been written to achieve legislative goal.
  • Indeed, it need not go far at all toward a conceivable legislative goal
  • Ct will uphold a law taking a “first step” toward any legit goal, even if Ct thinks law is unwise.
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