MBEConLaw

Question 1

Exceptions to Eleventh Amendment State Immunity

Answer 1

• Injunctive relief v. state official
• Damages v. state official if he will have to pay bc acting illegally
• Congress may abrogate immunity to enforce rights protected by 13-15th As if does so expressly

Question 2

3 Elements of Standing

Answer 2

1. Injury in fact (concrete + particularized; future injury only if actual + imminent, not hypothetical/conjectural)
2. Causation
3. Redressability

Question 3

Mootness + D’s Voluntary Cessation of Illegal Activity

Answer 3

Ct will not dismiss as moot unless “no rsnble expectation wrong will be repeated”

Question 4

Younger Abstention

Answer 4

Ct will not enjoin state criminal/civil enforcement proceeding (like contempt) in absence of bad faith, harassment, or patently invalid state statute

Question 5

Taxing Power

Answer 5

Rational relationship to public purpose

Question 6

Spending Power

Answer 6

Congress has power to spend for “general welfare,” ie, any public purpose + can use conditional spending to accomplish regulation that would otherwise exceed powers

Question 7

Congressional Power to Enforce 13th A

Answer 7

Broad authority to adopt legislation rationally related to eliminating racial discrimination (“badges or incidents” of slavery), including regulation of purely private conduct

Question 8

14th A, s 5 Enabling Clause

Answer 8

• permits Congress to pass legislation to enforce rights guaranteed by amendment, but not to expand those rights or create new ones
• must be a “congruence + proportionality” between injury to be prevented or remedied and means adopted to achieve that end

Question 9

Pres Authority to Act in Domestic Affairs

Answer 9

1. Action presumed valid when Congress has implicitly or expressly authorized
2. Authority diminished in face of Congressional silence
3. Action presumed invalid when Congress has spoken to contrary

Question 10

Speech or Debate Clause

Answer 10

• Members of Congress + aides have civil + criminal immunity for sttmts made in “regular course of legislative process” (speeches, hearings, reports)
• DN cover speeches out of Congress or “repub” of defamatory sttmt originally made in Congress

Question 11

Dormant Commerce Clause: General Rule

Answer 11

If no fed legislation on point, state free to regulate so long as dn: (i) discriminate v. out of state commerce, (ii) unduly burden I-S commerce, or (iii) regulate wholly out of state activity

Question 12

Dormant Commerce Clause – Undue Burden on Interstate Commerce

Answer 12

Consider (i) importance of state interest, (ii) likelihood law will achieve, (iii) alternatives

Question 13

Federal Preemption of State Law: Implied Preemption

Answer 13

• Congress intended that fed law *occupy field* (even complimentary state leg invalid)
• direct conflict
• indirect conflict b/c state law frustrates purpose of fed law

Question 14

When Private Conduct = State Action

Answer 14

• Engaged in activity traditionally performed exclusively by state (includes use of peremptory challenges by private litigants)
• Gov’t so *pervasively entwined* w/ private actor that con’l standards should apply; mere licensing/regulation insufficient, state must act affirmatively to facilitate, encourage, or authorize activity (NOT utility co.s)

Question 15

Due Process: Minimum Process Due

Answer 15

• Notice + opp to be heard before neutral DM’er
• hearing need not necessarily occur b4 denial of interest (yes for welfare benefits, no for disability benefits)

Question 16

Fundamental Right to Interstate Travel

Answer 16

Includes right to become perm res of state + to be treated equally to native-born w/r/t state benefits; rsnble residency restrictions can be imposed on receipt of govt benefits, but once you qualify as res, right to be treated equally

Question 17

Restrictions on Right to Vote

Answer 17

• State/local may impose brief residency reqts
• Property ownership only for elections involving special-purpose entities
• Voter ID subject to rational basis test

Question 18

Equal Protection Challenges: Proving Discrimination

Answer 18

Disparate impact insufficient; discriminatory intent must be shown facially, as applied, or discriminatory motive

Question 19

Equal Protection and National Origin

Answer 19

• Laws restricting alien’s participation in state gov’t function need only pass rational basis test
• Congress has plenary authority over aliens

Question 20

Article IV Privileges + Immunities Clause (Comity Clause)

Answer 20

• Prohibits state discrimination v. non-residents w/r/t fundamental rights (ie: professional license, not recreational)
• Exception = non-res cause or are part of problem + no less-restrictive means
• Always consider w/ Dormant CC

Question 21

Exaction as Taking

Answer 21

Govt may exact promises from developer as condition for permits so long as: (i) nexus b/w state interest + condition imposed; and (ii) rough proportionality b/w burden imposed + impact of proposed development

Question 22

Establishment Clause: Public Prayer, Religious Displays

Answer 22

• Prayer before legislative session ok due to tradition + lack of coercion
• Display no if *predominantly religious purpose,* but ok if also communicates secular moral message or context conveys historical/social meaning
• Holiday displays ok unless rsnbl observer would view as endorsement of religion

Question 23

Free Exercise Clause: Religious Belief v. Religious Conduct

Answer 23

• Belief absolutely protected so long as sincerely held
• Laws that intentionally target religious conduct subject to strict scrutiny; generally applicable = rational basis

Question 24

Free Speech: Compelled Financial Support

Answer 24

• Can be compelled to join/pay dues to group w/r/t employment (ie: union, bar ass’n)
• Student can be req’d to pay activity fee, so long as fee allocated based on viewpoint-neutral scheme

Question 25

Government Employee Speech

Answer 25

• Speech can be regulated if ordinarily w/in scope of employee’s duties
• If speaking as citizen on matter of public concern, 1st A interest of employee balanced v. interest of state-employer in effective + efficient management of internal affairs

Question 26

Regulation of Speech in “Non-Public Forum”

Answer 26

• NPF = public property that is not traditional or designated public forum (ie: gov’t offices, schools, jails, airports + military bases)
• Reg must be: (i) viewpoint neutral + (ii) rsnbly related to legit interest

Question 27

Incitement to Violence

Answer 27

(i) directed to inciting or producing imminent lawless action +
(ii) likely to incite or produce such action

Question 28

Fighting Words

Answer 28

Words that by their very nature are likely to incite an immediate breach of peace (not merely annoying or offensive)

Question 29

Restrictions on Commercial Speech

Answer 29

• Can ban if illegal product or false/misleading
• substantial interest + reasonable fit

Question 30

Art. 1, s 10 Contract Clause

Answer 30

• state law impairs existing K
• if private K, impt interest + narrowly tailored
• if gov’t party to K, impt interest + necessary

Question 31

Freedom of Association–Membership in Subversive Org

Answer 31

(i) active member
(ii) knowledge of illegal activities +
(iii) specific intent to further illegal objectives

Question 32

Ad Valorem State Taxes

Answer 32

• Commodities: only when come to rest in state, not while in transit
• Instrumentalities: each state can tax (home state gives credit)

Question 33

Process due b4 for cause gov’t employee can be fired

Answer 33

• generally, should get opp to be heard by DM’er before termination (dn have to be formal evidentiary hearing)
• exception: if significant reason for immediately removing, prompt post-suspension hearing w/ reinstatement + back pay if employee prevails satisfies

Question 34

Cognizable property interest implicating DP

Answer 34

must be a “legitimate claim of entitlement”

Question 35

Prior restraint (almost always struck down)

Answer 35

• particular harm to be avoided (like publication of troop movements); and
• procedural safeguards provided to speaker