MBE Con Law Must Know

Question 1

1A Free Speech Restrictions

Answer 1

Content neutral (imposing reasonable time, place, or manner restrictions):
- Traditional public forum or designated public forum get Intermediate Scrutiny (restriction impermissible unless narrowly tailored, to substantial gov interest, and alternative channels are open)
- Nonpublic forum gets RBT (restriction permissible if reasonably related to legit gov interest)

Content-based restrictions:
- If traditional public forum or designated public forum, content based regs prohibited (strict scrutiny for traditional) (SS for designated if used for designated purpose; RBT if used for unintended purpose and viewpoint-neutral)
- if nonpublic forum (which means other public property not in those two above), content based regs permitted if viewpoint-neutral (RBT - valid if reasonably related to legit interest and viewpoint-neutral)

Unprotected speech (FIDO)
- Fighting words/threats (likely incite immediate breach of peace)
- Inciting crime
- Defamation
- Obscenity
*But note: gov cannot regulate or prohibit fighting words based on teh speaker’s viewpoint

Question 3

5A Takings - types and attributes

Answer 3

1. Physical (possession or permanent physical invasion of property)
2. Regulatory (deprivation of all economic beneficial uses OR restricts use under totality of circumstances - character of gov action, econ impact, reasonable investment-back expectations)
3. Exaction (condition to obtain building / development permit) is a taking unless gov establishes:
   (a) an essential nexus – the imposed condition substantially advances a legitimate government interest and (b) rough proportionality – the proposed development’s impact on the community is roughly proportional to the imposed condition’s burden on the landowner.
4. Destruction (destruction of property or property interests (eg, easements, liens - like lien on a plane that gov’t gets and can’t sue gov’t bc sov immunity))

Question 4

Commerce clause

Answer 4

The Article I, Section 8 commerce clause gives Congress broad regulatory authority over most economic activities involving two or more states. This includes the power to regulate:

• the channels of interstate commerce (e.g., airports)
• the instrumentalities of interstate commerce (e.g., planes)
• people and things moving in interstate commerce (e.g., commercial shipments) and
• in-state activities that, singly or in the aggregate, substantially affect interstate commerce (presumed when activity is economic in nature).

Question 5

Standing - suing on another’s behalf

Answer 5

Organizational:
- members have standing to sue on their own behalf
- their injuries relate to organization’s purpose AND
- lawsuit does not require member participation (if damages sought)

Third Party
Injured plaintiff can assert 3d party rights when:
- parties share inextricably close relationship (eg, doctor/patient; school/students; employer/employee) AND
- obstacle prevents third party from suing (eg, privacy/retaliation concern)

Child
- Parent has standing unless parental rights have been limited by court OR lawsuit may adversely affect child

Assignor
- Assignee has standing if assigned legal claim for ordinary & good faith business purpose

Question 6

Laws that affect ________ are almost always unconstitutional under strict scrutiny.

Answer 6

fundamental rights

(EPC or SDP)?