MBE Review_Con Law

Question 1

Taxing & Spending Clause uses what level of review?

Answer 1

Rational Basis

Question 2

What is the test for the Commerce Clause?

Answer 2

Conceivable rational basis for concluding that the activity regulated, in aggregate, substantially affects interstate commerce

Question 3

Test for whether State/Local Regulation is a valid law under the commerce clause

Answer 3

Invalid if the State/Local law places an undue burden on IC

Valid if Congress gives its blessing

Question 4

Economic protectionist law favoring in-state/local producers over out-of-state
Test: Does State Law directly discriminate against out- of- staters?

Answer 4

If so, violation of Commerce Clause, unless Congress allows it.

these types of laws are almost always invalid

Question 5

If state law does not directly discriminate against out-of-state/foreign commerce, the court will use a simple balancing test:

Answer 5

Is it legitimate? Does it serve a useful purposes? Usually, law is constitutional.

Question 6

Under the Commerce Clause, when may a State directly discriminate against out-of-staters?

Answer 6

1. when Congress authorizes it

2. Market Participant Exception - when there’s a State/City owned business - unless Congress says otherwise

Question 7

Standing - 3 elements

Answer 7

1. Injury in Fact - must be present, economic
2. Causation
3. Redressability - court has to make P whole

Question 8

Rule for Third Party Standing

Answer 8

A Vendor/seller of goods may have standing to challenge a law that adversely affects the rights of her customers

must show a Nexus btw party bringing suit and people whose rights they are trying to protect

Question 9

Congress can impose conditions on their grants of Federal money as long as…

Answer 9

its not Unduly Coercive

ex. Congress withdrawing ALL Federal funding to states & 50% of state budgets depend on

Question 10

Basis of review for Alienage discrimination

Answer 10

Congress - Rational Basis

State - Strict Scrutiny

Question 11

when may a State discriminate against Resident Aliens?

Answer 11

Important Government Function (voting, public police officer, civil engineer)

review is Strict Scrutiny / State has burden

Question 12

Discrimination by State on Non-Suspect Class (Age, Poverty, Intelligence)

Answer 12

Rational Basis, Challenger bears burden

Question 13

Discrimination on Gender

Answer 13

Intermediate Scrutiny , important gov’t interest, State bears burden

Question 14

Procedural Due Process

Answer 14

Right to Notice & Hearing, if a Fundamental Right (life, liberty, freedom)

Balancing Test: risk of error if no hearing is granted w/ interest being taken away

Question 15

Contracts Clause

Answer 15

applies to State laws that retroactively invalidate already existing contracts

not allowed unless serves important gov’t interest & narrowly tailored to promote that interest -

10th amendment argument by State will usually trump Contracts Clause

Question 16

State Action - applies to gov’t involvement

Answer 16

discrimination by private entity is ok, unless State action

Exception - 13th amendment - slavery

Question 17

Content-Based Restrictions on Speech, Viewpoint Regulations

Answer 17

are Presumptively Unconstitutional, Rarely Upheld

Strict Scrutiny review

Question 18

Free Exercise Clause

Answer 18

cannot discriminate based on Religious beliefs

Question 19

Establishment Clause

Answer 19

Lemon Test:
secular purpose
primary effect neither advances nor inhibits
no excessive entanglement btw gov’t & religion

Question 20

Commercial Speech Restriction

Answer 20

Upheld as long as serves a substantial gov’t interest, narrowly tailored

Question 21

Speech - non traditional public forum

Answer 21

rational basis review

Question 22

Limited public forum

Answer 22

open doors to general public, can put some restrictions as long as content neutral, viewpoint neutral, narrowly tailored

Question 23

Press has a right to publish information about a matter of public concern

Answer 23

can only be restricted by a narrowly tailored sanction designed to further a state interest of the highest order

applies even if information was obtained unlawfully

Question 24

EP - ordinance based on Age, what is the standard of review & who has the burden of proof?

Answer 24

Under that test, the challenger must show that the law has no rational basis, and the statute will be presumed constitutional unless a clear showing of arbitrariness and irrationality is made.

Question 25

Privileges and Immunities Clause of Article IV restricts whom?

Answer 25

Restricts The States, not the federal government.

Question 26

Congress has the power to regulate alarm installation companies. Why?

Answer 26

under the Commerce Clause because the clause permits Congress to regulate any local or interstate activity that, either in itself or in combination with other activities, has an effect on interstate commerce.
Burglar alarm companies use instrumentalities of interstate commerce such as phone lines and have a cumulative effect on interstate commerce even though some may only do business locally.

Question 27

Whether the law here is examined under the substantive provisions of the Due Process Clause or the Equal Protection Clause, the analysis is the same: If no fundamental right or suspect or quasi-suspect classification is involved,

Answer 27

the law will be assessed under the rational basis standard. Under that standard, government action will be upheld unless a challenger can prove that it is not rationally related to a legitimate government interest.

Question 28

Strict Liability - what is a foreseeable bystander

Answer 28

Strict liability applies not only to buyers, but also to the buyer’s family, friends, and employees, and to foreseeable bystanders.
As a rescuer, the captain was a foreseeable bystander to whom the dealer may be liable.

Question 29

Governmental Taking =

Answer 29

5th Amendment prohibits gov’t taking of private property for public use w/o just compensation.

Gov’t must compensate fairly for taking; need not pay for mere regulation

Question 30

Taking =

Answer 30

physical appropriation or destruction of a person’s property

restriction on how real property is used may also constitute a taking

Question 31

A regulation will constitute a taking if:

Answer 31

(1) amounts to a physical appropriation
(2) denies owner all economic use or
(3) unreasonably interferes w/ distinct investment-backed expectations of owner

Question 32

When may a city force conveyance of an easement in exchange for a permit?

Answer 32

(1) close nexus exists (gov’t shows condition relates to a legitimate gov’t interest)
AND
(2) proportionality exists (adverse impact of proposed building/development on the area is roughly proportional to loss caused to property owner from forced transfer of occupation rights)

city has burden of showing proportionality

speculation that crime might decrease is not sufficient evidence of proportionality btw issuing permit and requiring easement

Question 33

When can Congress act pursuant to 14th amend power to prohibit age discrimination?

Answer 33

Congress has no general police power or power to legislate for general welfare

Congress may not expand existing const’l rights or create new ones. May only enact laws to prevent or remedy violations of rights already recognized by courts

Question 34

What is the Enabling Clause of Sec 5 of 14th Amendment?

Answer 34

Sec 5 of 14th Amend - Enabling Clause - gives Congress power to adopt appropriate legislation to enforce rights & guarantees provided by 14th amend.

Question 35

What is the test for determining if a law passed by Congress to solve a history or pattern of violations of such a right is valid?

Answer 35

To be valid, laws must be Congruent and Proportional.

Congress cannot expand or create new constitutional rights

(ex. age discrimination in form of mandatory retirement age is not a violation of EP. Court would likely hold Congress lacks power to ban mandatory retirement ages under its power pursuant to Sec 5 of 14th Amendment)

Question 36

EP Clause of 14th Amendment =

Answer 36

States may not unfairly treat similarly situated persons differently

Question 37

EP Analysis:

Answer 37

1) Court considers if Discriminatory Classification exists
2) If so, Standard of Review determined by whether SUSPECT classification involved
3) If NO Suspect or Quasi-Suspect Class, Court applies Rational Basis Test

Question 38

Under what power can Congress enact laws?

Answer 38

pursuant to power given by Constitution

Fed Gov’t is gov’t of limited powers

Congress has no general police power or power to legislate for general welfare

Question 39

Why is Age Discrimination in form of mandatory retirement not a violation of EP?

Answer 39

B/c it would expand existing/create new rights, not remedy existing violations

expansion beyond scope of Sec 5, 14th Amend

Law invalid

Question 40

When may a state enact a law that is neutral on its face, but effectively favors in-state industry over an out-of-state industry?

Answer 40

Under Dormant Commerce Clause, if Congress has not enacted laws regarding a subject, a state or local gov’t may regulate local aspects of IC if the regulation:

(1) does not discriminate against out-of-state competition to benefit local economic interests
AND
(2) is not unduly burdensome (burden on IC does not outweigh legitimate local benefits produced by regulation)

Question 41

Will a law that requires 50% electricity sold by utilities to come from “environmentally friendly energy sources” be valid?

Answer 41

Yes, b/c doesn’t discriminate btw in-state or out-of-state & not unduly burdensome regulation of IC

State has a clear & valid purpose for regulation - environmentally friendly sources

Question 42

When are Discriminatory state/local regulations valid?

Answer 42

if necessary to achieve an important noneconomic state interest and there are no reasonable alternatives available

if discriminate btw in-state/out of state on its face & not least restrictive means, unconstitutional

Question 43

Under Dormant Commerce Clause, state/local regs that discriminate against IC to protect local economic interests…

Answer 43

are almost always Invalid

Question 44

What is the Exception under the Dormant Commerce Clause for discriminatory regulations?

Answer 44

when States act as Market Participants (state is buying or selling goods or services)

Question 45

What is an example of a Market Participant?

Answer 45

When state is purchasing energy products and services)

Question 46

Under 1st Amendment, Regulations to Content of Speech are subject to:

Answer 46

Strict scrutiny, generally invalid

Question 47

A time, place, & manner regulation of speech in a public forum must:

Answer 47

1) be content neutral
2) narrowly tailored to serve a significant gov’t interest
AND
3) leave open alternative avenues of communication

Question 48

Will a total ban on leafleting on a public sidewalk be a valid ordinance?

Answer 48

Invalid b/c ordinance is not narrowly tailored b/c imposes a complete ban on ALL leafleting in any public space

Does not leave open sufficient alt channels of communication
Leaflets are inexpensive method for distributing ideas readily available to all
Total ban in all public spaces significantly curtailed peoples’ ability to get their messages out

Question 49

11th Amendment =

Answer 49

prohibits federal courts from hearing most private actions against state gov’t

(private party vs State)

Exception: Congress can remove 11th Amend immunity as to actions created under 14th amend

Question 50

May a private company sue a state official to enjoin enforcement of an unconstitutional state law and why?

Answer 50

Yes, 11th amend exception: private parties may bring actions to enjoin an officer from future conduct that violates Const’t or fed law. Exception includes enjoining an appropriate state official from enforcing an unconstitutional state law.

Question 51

Private action will constitute State action when:

Answer 51

1) private actor is performing a traditional & exclusive state function
OR
2) state is significantly involved in private action

SCOTUS had found running a town or an election to be a traditional & exclusive public function

SCOTUS has found significant state involvement when enforcement of private action involves use of courts, where private entities are entwined w/gov’t entities

Question 52

SCOTUS has found the following are Not State Action

Answer 52

state regulation of an industry - even heavy regulation

state licensing or providing essential services, such as police or fire protection

regulation of a private school - receives no direct funding from state

Question 53

To uphold intentional discrimination on basis of sex/gender, gov’t must show:

Answer 53

an exceedingly persuasive justification

intermediate scrutiny - discrimination substantially related to important gov’t interest

Question 54

What is the rule for common law defamation?

Answer 54

P may bring a defamation action against D who makes a false statement about P

Question 55

Under 1st amendment, public figures cannot recover for defamation unless:

Answer 55

they can show defaming stmt was made with actual malice

Question 56

what is Actual Malice in defamation:

Answer 56

where statement is made w/ knowledge that it is false or w/ reckless disregard of its truth or falsity

Question 57

What is Invasion of Privacy?

Answer 57

Generally, it is a tort to publish private information about a person if a reasonable person would object to having the information made public.

Truth is not a defense.

Question 58

Is a picture taken in public an invasion of privacy?

Answer 58

No, if the matter is one of legitimate public interest, its publication is privileged if it is made w/o actual malice, especially if info was obtained legitimately, such as a picture taken in public

Question 59

What is the exception to regulation of speech that incite imminent lawless action and fighting words?

Answer 59

SCOTUS has held that a statute may not constitutionally regulate “mere advocacy of lawless action in the abstract”; only speech that incites imminent lawless action can be regulated.

regulation is overbroad on its face if it regulates mere advocacy in the abstract

Question 60

Fighting words =

Answer 60

personally abusive communications that, when addressed to an ordinary person, are likely to “incite immediate physical retaliation”

Question 61

Congress’s power to investigate is limited to …

Answer 61

matters on which it can legislate.

Question 62

what is a defense for “knowingly”?

Answer 62

Ignorance or mistake as to a matter of fact will affect criminal guilt only if it shows that the defendant did not have the state of mind required for the crime.

A person acts knowingly with respect to the nature of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist

Question 63

The First Amendment generally prohibits gov’t from restricting the contents of speech unless:

Answer 63

1) gov’t can prove that

2) the restriction is necessary to achieve a compelling gov’t interest

Question 64

When is a regulation of speech Overbroad?

Answer 64

prohibits substantially more speech than is necessary

Question 65

A regulation is overbroad on its face if

Answer 65

it regulates mere advocacy in the abstract

Question 66

Supreme Court’s appellate jurisdiction is governed by?

Answer 66

Article III explicitly gives Congress the power to make exceptions to the Supreme Court’s appellate jurisdiction

Question 67

The enactment of laws by Congress requires…

Answer 67

passage of the law in both houses (bicameralism) and approval of the law by the President (that is, the presentment requirement) or an override of a presidential veto.

Question 68

Test for commercial speech:

Answer 68

The Court first asks whether the speech is about a
lawful activity and is truthful and not misleading.

If these conditions are not satisfied, the speech has no protection.

If they are satisfied, the regulation will be valid only if it

(1) serves a substantial government interest,
(2) directly advances that interest, and
(3) is narrowly tailored to achieve that interest (that is, there is a reasonable fit between the means chosen and the ends sought).