Some Claus Class Hypos Flashcards
Are the Courts suitable for enforcing positive rights?
If we’re applying Marshall’s theory that the courts are the ones to do the enforcing: When the Constitution is not a “wish list” or “road map” for the legislature, but a list of obligations for the courts to enforce → you effectively turn the court into the government. They would have to decide the budget, prioritization, etc.
Does the Contracts Clause apply to Pension Reform?
Pension obligations are becoming increasingly challenging to fulfill. Life expectancy has risen since the policy’s inception, leading to a growing elderly population. So, retirees are drawing more benefits than they contributed.
The physical demands of a job often dictate how long one can realistically remain in that position. This is one reason why these jobs often come with generous pensions, enticing individuals to take on the risk. In knowing that the job is physically demanding and may require early retirement, the pension offers the financial support needed for such a transition.
However, unlike the Federal Government, states and local governments have to pay their bills, they can’t just print money. So, if you’re revisiting those contracts on a public interest case of “we just can’t afford to hire the people we need now”
Ex: here in California, where local authorities cannot afford to hire today’s local police and firefighters because they’re paying such huge pensions to the people who did it yesterday.
A potential solution could be taxpayers would pay more. But, the voters wouldn’t like it and the legislature just won’t do it.
The legislature would then try to find other ways to reform these promises to pay back the pensions.
And the response for the people who are beneficiaries is - Contact Clause says you cannot change these since you, the State, are a party to these contracts. The current court very well might treat it as limiting states more than the Blaisdell courts did.
Still, the courts have never taken the position that these contracts are totally unchangeable. There can be a public interest consideration of either because of deference to the state, or in contracts to which the state is a party, as a matter of the court’s judgment that the public interest calls for some reform of over-generous contracts.
5) VA pharmacy: Majority says not sufficiently justified to restrict drug advertising. Commercial speech can be regulated more than political speech. But the interest has to be pretty strong before you regulate commercial speech. Interest in preventing it is low. Nowhere else in the world is this common.
6) Hudson:
1. Substantial interest [important] (doesn’t have to be compelling)
- Regulation has to directly advance the interest
- Not more extensive than necessary (not necessarily the least restrictive)
CI
Hypo: You live in religious community, deeply believed to be children of god, god they believe in hates blasphemy. Blasphemy is something that would put the community at risk. God might let terrible things happen to them. If a community really had that belief, and someone came in and questioned the existence of god. If they believe the consequence would be the destruction of the community. Would it make sense to suppress such “anti-X religion” speech that just questions the ideas and existence of god.
We need to have a culture in which we genuinely believe things, but that we could be wrong and we can live a bit. Beliefs about facts evolved a bit. We no longer execute women for being witches. Is that because we have gone soft on witches?
Children under a certain age deposed to pictures of violence will emulate them when they grow up, with strong evidence of this would we regulate violence differently?
With strong evidence we would have to highly consider regulating such violence differently based on the overall well being of society and weigh it stronger than the idea of allowing the artistic expression.
As opposed to not censoring this material.
