Term
| Name four instances that the Federal courts would not consider a “case or controversy” existed. |
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Definition
Where they are requested to give only an advisory opinion
Lack of case due to ripeness
Lack of a case due to mootness
Plaintiff lacks standing |
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Term
| Congress passes a statute which authorizes the federal courts to hear contract cases concerning contractors on federal projects, but providing the Sec’y of Commerce the power to set aside any judgment in the interest of fairness |
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Definition
| The court would decline to hear a case under this statute since it would amount to their giving an advisory opinion |
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Term
| In order for a case not to be considered ripe, what must the plaintiff be able to assert (possibility of 2 items) |
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Definition
Plaintiff must allege:
Actual harm or
The threat of immediate harm.
A case is not ripe if it is too early to bring a case. Look for the “bleeding plaintiff”. Watch out for a trick question – be alert to language like “A bill has been introduced in Congress…” |
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Term
| Under what condition might a law actually exist, but a claim of harm under the law be considered “unripe” |
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Definition
| It is a dead-letter statute. Essentially this is an archaic law – for which NO ONE has ever been prosecuted. (Naturally, the plaintiff will likely not have been prosecuted and e.g. lack standing) |
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Term
| The statute in question is clearly unconstitutional, but the question id asking what is the government’s best argument to dismiss the case? |
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Definition
| Look for an answer that has nothing to do with the merits of the case – like jurisdiction, Mootness, ripeness, or standing. |
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Term
| Under what conditions wil a case be dismissed due to Mootness? |
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Definition
| Unlike, ripeness, here the controversy may have prented some harm, but now the case if being brought too late. There must be an actual, live controversy between the parties at any stage of the litigation. |
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Term
| What are the four exceptions to a claim for Mootness? Explain each |
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Definition
The injury may be gone, but is capable of repetition to the plaintiff. A good example is a claim brought concerning treatment of the Π while being pregnant.
The case is a class action suit and the class representative is no longer in danger of being harmed (I think here, you might think of a civil rights claim)
Collateral consequences. Here you need to think if there are any associated harms. A π who has been released from prison but has still lost certain civil rights
“Voluntary Cessation of Illeal Activties: Frankly not sure how different this is from the “repetition” exeption. Here the ∆ has the power to reinstitute actions that harm the π. (Polluter) |
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Term
| What are the 3 ingredients for “standing”? |
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Definition
Actual concrete harm or injury
The case involves a controversy which is he cause of the harm
Redressability: Ask whether the action sought from the court can actually alleviate the harm. |
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Term
| Can I bring a case against the government because I have been harmed as “a citizen”? |
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Definition
| There is no standing as a citizen – you must actually have been harmed? |
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Term
| When can an organization have standing? |
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Definition
Either the organization has been injured. OR
A member or members would have standing AND
The member’s injury is related to the purpose of the organization AND
There is no reason that would require participation of the individual members in the suite |
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Term
| Can I bring a case against the government because I have been harmed as “a taxpayer”? |
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Definition
VERY RARE. Watch for language like “A is suing as a taxpayer…”
There must be a “double-nexus” REQUIRED ELEMENTS:
The statute that is challenged was enacted under Congress’ taxing and spending power (thus affecting her status as a taxpayer)
Exceeds some specific limitation on the power
Establishment Clause has been the only situation where this has been allowed (the founders were wary about Congress using the T&S power to establish a religion) |
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Term
| Can the Supreme Court review decisions on appeal from State courts? (aside by certiori) |
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Definition
Yes.
In order to there must be four items:
The case must involve a matter of fderal law
It has to have been a final judgment
It’s from the highest state court authorized to hear the case. (Note this doesn’t always mean it came from the highest court in the state)
There is NO 1) independent or 2) adequate grounds on which the court decision is based |
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Term
| What does it mean for a state case to have been decided on an independent basis? (e.g. cannot be heard by SCOTUS) |
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Definition
| The case rests on an independent state ground so long as state law does NOT depend on an interpretation of federal law or incorporates a federal standard. Example, “We interpret our state constitutional right of free speech exactly as the law interprets the federal constitutional right of free speech – this is NOT independent. |
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Term
| What does it mean for a state case to have been decided on an adequate basis? (e.g. cannot be heard by SCOTUS) |
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Definition
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Term
| What is the basic question you will ask yourself to determine whether an issue will nit be considered by the federal court due to it being a “political question”? |
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Definition
The issue in question, constitutionally belongs to another branch of government to decide.
Also ask whether it is beyond the reach of the court to enforce.
ASK THESE QUESTIONS TO ELIMINATE THE “POLITICAL QUESTION DOCTRINE” ANSWER |
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Term
| Under the 11th Amendment, a private party cannot sue a state in federal court. True or False |
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Definition
| Only partly True. A private party cannot sue a state in federal court; however, it may get consent from the state to bring such suit. OR Congress must clearly provide for such suit under the 14th amendment. |
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Term
| Will the 11th Amendment allow private parties to sue state officers in federal court? |
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Definition
Yes.
The party may sue a state officer in their individual capacity for damages; and the party may sue state officers to enjoin future unconstitutional action by the state |
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Term
| Under the 11th Amendment, a private party cannot sue a state or local government in federal court. True or False |
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Definition
False.
The 11th Amendment only prohibits actions against state governments – not local governments |
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Term
| Can another state sue a state under the 11th Amendment? |
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Definition
Yes (SCOTUS has original jurisdiction).
Watch out this is a popular trick question |
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Term
All powers not granted to the federal government are reserved to the States (“the people”). What enumerated powers are granted to the federal government?
All children buy fake pass-ports w/ coins and DC comics when able |
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Definition
Admiralty
Citizenship
Bankruptcy
Federal property
Patents (and copyrights)
Post Office
Coinage
DC and territories
War
Armies (raising of) |
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Term
| What are the two most tested Congressional powers? |
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Definition
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Term
| What is the Necessary and Proper power? |
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Definition
N&P Clause (not a power) allows Congress to use all means convenient and useful to carry out the enumerated power. (Classic: McCullogh v. Maryland – you need a national bank to conduct all the fiscal matters of government).
Necessary and Proper as an answer standing alone or referred to as a “power” is a WRONG ANSWER (For that matter, so is General Welfare). IOW, It would be necessary and proper in order to….” Must be in the answer. |
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Term
| When the answer to a question infers that a certain statute is constitutional because it facilitates the federal government’s police power, what else do you need to look for? |
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Definition
Nothing
There is NO federal police power – it’s a WRONG ANSWER. |
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Term
| Under what doctrine can Congress regulate purely local, intrastate activities? |
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Definition
| The cumulative effects doctrine. Those action which by themselves or when repeated by others would substantially affect interstate commerce. Wickard v. Filburn – If EVERYONE grew too much whaet only for their own consumption, it would substantially affect IC |
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Term
| Describe two situations where Congress has been restricted in its use of the ICC to regulate intrastate activity |
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Definition
Congress may not “commandeer” state regulatory agencies to enforce a federal law
Congress cannot criminalize behavior which does not in any way relate to commercial or economic activity (Lopez, Morrison) |
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Term
| What three ways may Congress use its enumerated powers to coerce states |
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Definition
Commerce clause
Preemption
Spending power |
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Term
| What seems to be the only requirement for Congress to use its taximng power (to regulate behavior) |
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Definition
| Simply that it raises revenue |
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Term
| The spending power is the chief source of power to “bribe” states to do what the federal government wants them to do. Under what 4 conditions will a court accept a condition imposed on a state for accepting federal funds? |
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Definition
- The law has to be enacted for the general welfare
- May not be used to violate individual liberties
- Condition must be reasonably related to a legitimate government interest.
- Quid pro quo
Example, federal highway funds, if state raises the drinking age to 21 – it’s reasonably related to the safe use of highways which, for the general welfare, is a legitimate interest of the federal government. |
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Term
| Which of the post-Civil War, civil rights Amendments does not require state action or state actors |
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Definition
| The Thirteenth Amendment (Outlawing Slavery) |
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Term
| Under §5 of the 14th Amendment, Congress may take actions to enable the 14th Amendment. What may it not be allowed to do? |
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Definition
| Create a right or enlarge an existing right as defined by the courts |
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Term
| May Congress delegate any of its legislative powers, and if so what requirement is imposed on that delegation? |
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Definition
| Yes, Congress may broadly delegate legislative powers to administrative agencies so long as they set forth some intelligible principles to guide the exercise of the dlegated power. |
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Term
| Congress may delegate powers to an executive administrative agency, provided that such agency decisions are reviewable by one or both houses of congress. True or False |
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Definition
| False. This is the Legislative Veto – which has been ruled as unconstitutional. Once Congress decides to delegate legislative power to the executive, it must pass new legislation to disable or veto any administration activity |
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Term
| To what kind of activities does the Speech and Debate Clause apply? |
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Definition
| Only to strictly legislative acts – part of the legislative process. Actions on the floor of the Congress, debates, voting, speaking or introducing bills, actions in committee. It does not count discussions with constituents or redistribution of materials (Proxmire) |
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Term
| May the President decide to forego using funds Congress has appropriates for specific executive use? |
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Definition
| No. Refrred to as impoundment of funds, the President must execute laws or directives voted enacted by Congress. |
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Term
| John Garry is convicted in Michigan for violating the state’s 3-strikes drunken driving statute for the third time and is sentenced to life imprisonment. May the President pardon Mr. Garry? |
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Definition
No.
The President has an exclusive power to pardon those convicted for (or on trial for) federal offenses.. |
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Term
| Which positions does the President have power to appoint and emove |
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Definition
Ambassadors, public ministers, consuls, justices of the Supreme Court and executive officers.
Must be with "advice and consent" of the Senate |
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Term
| The President has the power to appoint ambassadors, judges, and cabinet heads but only with the advice and consent of the Senate. True or False |
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Definition
True
These are referred to a principal officers or appointees |
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Term
| In the case of a sudden vacancy in the Cabinet, Congress may appoint an interim officer. True or False |
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Definition
False
Congress may never directly appoint an executive officer. They may only appoint people who work for Congress |
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Term
| Congress may never directly remove any executive branch official. True or False |
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Definition
| Generally true, however, Congress may remove certain executives through impeachment |
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Term
| Describe the roles Congress and the President perform with respect to the military |
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Definition
Congress alone has the power to declare war. Once war is declared, the PReident as Commander-in-Chief may conduct those military operations
The President may act to repel invasions and take emergency action to protect the lives and property of the United States. |
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Term
| A private merchant vessel, the Sequoia, is stopped by the North Korean navy and its cargo and crew are seized. The President dispatches the U.S. Navy to intercept and retake the Sequoia. Has the President exceeded any of his Constitutional powers. |
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Definition
| Likeley not. Since, he may take emergency action to protect the lives and property of the United States |
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Term
| At a time when the country is at war and in need of steel for producing war materiel, the steelworkers union goes on strike. To complicate matters, the steel industry executives refuse to negotiate with the union leaders. Congress has taken no action, by means of a sophisticated executive order, the USG seizes the steel mills to keep them in production. Is this act Constitutional |
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Definition
No
This was the issues in Youngstown Steel and Tube v. Sawyer.
In effect the President has used his authority to issue an executive order as a means of making an actual law – this exceeds any power vested in him under Article 2. . Congress makes the laws and the President enforces them. |
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Term
| In the spirit of harmony, President O enter into an executive agreement with Canada to allow the Canadian navy to weigh anchor in any U.S. harbor. Is this valid? Later, Congress is able to enact a law that prohibits Canadian naval vessel from |
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Definition
The president may enter into agreements with foreign nations and with Congressional acquiescence, they may stand.
A later legislative act which conflicts with such an agreement will be held valid. |
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Term
| The President may single-handedly negotiate a treaty. But how will the treaty become law of the land? |
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Definition
| It will require approval from 2/3rd of the US Senate |
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Term
| In the spirit of harmony, President O enter into an executive agreement with Canada to allow the Canadian navy to weigh anchor in any U.S. harbor. Massachusetts later passes a law that prohibits Canadian naval vessels from anchoring in Boston Harbor. Will the law survive a constitutional challenge |
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Definition
| Unlikely due to the Supremacy Clause. |
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Term
| What two interests are balanced with respect to Presidential (executive) privilege. |
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Definition
First – the President enjoys a presumptive executive privilege.
However: A balance test is used, the President’s generalized claim of confidentiality will yield to a specific need for evidence in a criminal trial |
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Term
| What type of immunity does the President have with regard to civil liability? Also, was the |
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Definition
The President has absolute immunity from civil damages based on any action that he took within his official responsibilities.
Presidential aides share in this immunity but only of theya re exercising discretionary authority in sensitive areas of national concern |
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Term
| What are the grounds for impeachment of executive officers? |
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Definition
| Treason, bribery, high crimes and misdemeanors |
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Term
| What roles do the the House and Senate play in impeachment |
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Definition
By a majority vote, the House invokes charges of impeachment (akin to indict)
By a 2/3rd vote, the Senate convicts the President |
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Term
| What is it meant that an area of power is inherently federal and therefore states are prohibited from exercising such power |
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Definition
| Although they do not expressly state that a satte cannot exercise such power, it is strongly inferred that the states have no such rights (declare war, conduct foreign policy) |
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Term
| What are the three principles that establish supremacy over the states |
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Definition
Federal law that is inconsistent with state law prevails over it
Express preemption: When Congress, carving out an entire field of oversight, states that all federal law displaces or ousts state law in that field
Implied preemption: Similar to the express preemption. Here it is simply determined that the feds intended to preempt the are through legislation that would make any state law inconsistent with the federal law |
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Term
| What is the rule in the Privileges and Immunities Clause of Article IV? |
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Definition
| States may not discriminate against out-of-state citizens (not corporations or aliens) with respect to commercial activities, employment, dealings in property or contract, of the enjoyment of civil liberties. |
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Term
| How might a state justify a law which appears to violate the P & I clause of Article IV |
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Definition
| It must show 1) that nonresidents either caused or are part of the matter which the law is intended to address, and 2) no lees restrictive means exist to resolve it. |
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Term
| A state law provides economic development grants to corporations. Eligibility and funding levels are based on whether the private corporation hires in-state employees. Another state law requires that state highway patrol officers be residents of the state. Are these laws constitutional? |
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Definition
The law requiring private sector employers to hire a certain percentage of in-state residents is unconstitutional under the P&I clause of Article IV.
States, however, may require in-state residency for their own employee. Therefore, the highway patrol law is legal. Related, states may also charge out-of-stater more for recreational hunting licenses or tuition benefits, and may prefer their own citizens in giving state benefits like welfare or subsidies ( really, confirm) |
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Term
| In response to e. coli health concerns from tainted product, Madison WI requires all cheese sold in its city to be pasteurized within the state of WI. Neither the FDA nor Congress have enacted any regulation regarding cheese production. Have the states the freedom to make regulations like these? |
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Definition
| No. Even where Congress has not acted within its powers under the Commerce Clause, state law may still be invalid if it discriminates against or unreasonably burdens interstate commerce. (Dormant Commerce Clause) |
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Term
| In what 2 ways might a state law discriminate against interstate commerce? |
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Definition
The law might discriminate for the purpose of favoring in-state commerce. This is economic protectionism and is per se invalid
The law might for the purpose of promoting health or safety (police power). These laws are also invalid if a reasonable non discriminatory means could achieve the same objectives
BUT REMEMBER: Just because they discriminate doesn’t mean that they automatically violate the DCC. More analysis is needed. Conversely, just because it doesn’t discriminate doesn’t mean it’s OK – must consider undue burden |
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Term
| In determining whether a state law unreasonably burdens interstate commerce, what balancing test is performed? |
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Definition
| The incidental burden on interstate commerce does not outweigh the legitimate in-state benefits produced by the regulation. (All trucks, in or outstate, must have tire A for safety. Tire B is proven to be equally safe. The law does not discriminate but it’s burden on IC is greater than the marginal benefit) |
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Term
| The McCarran-Ferguson Act holds that insurance is not commerce for the purpose of federal regulation of interstate commerce. To cover the cost of regulating against predatory, out-of-state insurers, South Carolina taxes those premiums at 50% higher than n-state insurers. Is such a tax invalid |
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Definition
| No. If a federal statute authorizes states to regulate in industry or ban its activities in the state, a state may discriminate in this manner. |
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Term
| As a condition in considering bids for purchases of automobiles for the governmental car pool, the state of Minnesota requires each bidder to certify that they are owned and operated by state residents. (The state feels this will stimulate the fledgling car dealership market). The federal government has enacted no law to address this issue. Nonetheless, is it invalid |
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Definition
| This is likely valid under the market-participant doctrine. If the state is acting as a purchaser or seller (not a regulator) the dormant commerce clause does not apply to its actions. |
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Term
| As a condition in considering bids for purchases of automobiles for the governmental car pool, the state of Minnesota requires each bidder to certify that they are owned and operated by state residents. (The state feels this will stimulate the fledgling car dealership market). The federal government has enacted no law to address this issue. Nonetheless, is it invalid |
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Definition
| This is likely valid under the market-participant doctrine. If the state is acting as a purchaser or seller (not a regulator) the dormant commerce clause does not apply to its actions. |
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Term
| Minnesota sells mineral extraction rights to iron ore on state-owned property. As a requirement for licensing mining companies to extract the ore, the state also requires them to have the ore processed as steel in-state before shipping it ut for use elsewhere. Is this action valid under the market-participant doctrine |
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Definition
Note that the market-participant doctrine applies not only to purchases for state use, but sale of state resource that discriminate in favor of in-state residents.
However, the MPD does not permit the state to create so comprehensive a requirement as to limit “downstream” commercial activity. Preferring sale of mineral rights to instate residents might be OK, but requiring the ore to be processed instate as well may be invalid. |
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Term
| The state of Kansas requires that all beer sold in the state have no more than 3.2% alcohol by content. No other state makes such a requirement. A highly-regarded national study proves that 5% beer poses no greater public safety issues than 3.2 beer. Anheuser Busch charges Kansas with violation of the constitution – outcome? Would outcome be different if Kansas imposed the requirements only on out-of-state breweries. |
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Definition
| The 21st Amendment gives states the power to regulate the possession, sale, and transportation of intoxicating liquors within their state borders. The 3.2 rule will likely be valid even tough it may burden Anheuser Busch. If the law applied only to out of-state breweries, then it more likely is invalid because the 21st Amendment does not presage discriminatory regulation. |
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Term
| Outline a step-by-step analysis for Bar exam questions regarding the state/local law regulating commerce. |
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Definition
1. Is there a federal law in the picture?
If so, you probably can argue supremacy over the state law or preemption
2. If the feds hve stepped out of the picture, lok to see if the law either:
Discriminate? IOW does it a) favor in-state commerce? b) was the state acting a market-participant? If so did the law affect “downstream commerce”? c) if it does, is there a valid police power (non-economic) reason for it? c1) If so, is there any reasonable non-discriminatory means to achieve that police ower objective?
Unreasonable Burden? If it doesn’t discriminate, does it ntl burden interstate commerce in a way that created a material burden in favor of a marginal benefit? |
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Term
| States have the power to raise revenue by taxes. Therefore, Congress does NOT have any power to restrict a state’s power to tax even commerce within its state. True or False |
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Definition
| False. Under the Commerce Clause, Congress has complete power to authorize or forbid state taxation affecting interstate commerce. |
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Term
| To be valid, a state tax on interstate commerce must meet what 3 requirements? |
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Definition
It must be non-discriminatory
The activity, person, or thing being taxed must have a substantial nexus to the state
The tax must not be un reasonably burdensome in proportion to the business being done in the state. |
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Term
| A state tax on commerce may violate two (even three) federal constitutional clauses. Explain |
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Definition
First, the tax may violate the commerce clause by burdening interstate commerce and favoring in-state commercial interests (Limbach)
Second, it may violate the P&I clause – the outline states that this is the best argument if the tax discriminates against a natural person who is a non-rsident
Third, the tax may violate the Equal Protection Clause. Outline suggests this is the argument to use when Congress authorizes state regulation, thus allowing for discrimination but the state action violates EP because it serves no legitimate state interest (the standard for economic EP cases). |
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Term
| Compco manufactures computers in South Dakota. It sells its computes to every state in the nation. Compco contracts with a telemarketer in Minneapolis who handles all the telephone orders for Comco computers. Minnesota imposes a state tax on every Compco computer that is ordered through the telemarketer. Why would that tax be considered unconstitutional? |
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Definition
| There is no substantial nexus between the taxpayer and the state. The mere receipt of telephone orders is not a significant or substantial Compco business activity within the state of Minnesota |
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Term
| What specifically is meant when it is said that a state tax must not be unreasonably burdensome on interstate commerce. |
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Definition
| It must be proportional to the company’s business done in the state or benefits received in the state |
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Term
| State A imposes a 1% tax on gross receipts of all businesses within the state. Harvester is located in State A but makes most of its sales out of state. Is the tax valid or not? |
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Definition
| The flat tax is almost always invalid as to Harvester’s out-of-state sales. This is because it exposes Harvester to the burden of both the in-state tax and taxes it will be iable for sales in other states |
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Term
| Idaco ships a product using a distribution facility in Minnesota. The facility trucks the product all over Minnesota, Iowa, South Dakota and Nebraska using trucks it ordinarily parks in its garages. Minnesota includes the value of the trucks in its property tax bill to Idaco. Iowa also imposes a tax on the Idaco cargo when it is shipping through Iowa to Nebraska. Nebraska taxes the cargo when it arrives at the Omaha Idaco dealer. Are these taxes OK? |
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Definition
These are all examples of ad valorem property taxes.
The Minnesota tax is probably OK,. The ad valorem tax on an instrumentality (in this case the truck) are valid if they have a taxable situs in the state (in this case they are garaged in the Minnesota facility). Note, if Idaco garaged the trucks half the year in another state’s facility, the taxes would have to be apportioned. Furthermore, since the trucks are used in interstate transport, they might be subject to apportioned taxes simply by transport.
The Iowa tax is invalid. Goods in transit are totally exempt from taxation.
The Nebraska tax is probably a valid ad valorem tax on the product. When the cargo goods reached the Omaha distributor they had obtained a taxable situs. |
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Term
| The state of Minnesota passes a law that requires all newspaper articles regarding the state legislature be reviewed by the state fact-checker first before they are published. Under which Constitutional guarantee may the publisher bring action? The right of freedom of the press under First Amendment or the Due Process clause under the 14th? Or either? |
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Definition
| The federal Bill of Rights are not applicable to the states (Slaughterhouse Cases). Certain rights are still safeguarded through incorporation under the 14th Amendent. |
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Term
| Which Bill of Rights protections have been incorporated into the 14th Amendment so as to apply to state action? |
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Definition
| All of the First, Fourth, Fifth (self-incrimination, and takings), Sixth, and Eighth (some question – particularly with regard to excessive bail) |
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Term
| The applicable constitutional protections apply to protection from violative state action (not private action). Which amendment is the exception to this rule? |
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Definition
| The 13th Amendment: prohibition of slavery applies even to private individuals and corporations. |
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Term
| Darla wants to gain entrance into the He-Man Woman-Haters Club. Spanky informs her she cannot because she is not male. Other legislation aside, can Darla bring suit under violation of equal protection rights? |
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Definition
| No. At first blush, the He-Man Woman-Hater’s Club is a private actor and the EP clause will not apply to their activities. |
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Term
| Where might you find “state action” for activities being rendered by private actors |
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Definition
Where the state is ratifying the action – a court enforcing a prohibitive private action (restrictive covenant: Shelley v. Kramer).
Where private actors are performing a public function like operating as a municipality or running a prison – look for traditional and exclusive govt. functions
There is significant government involvement/interaction/entanglement (The city rents out space to a café that bans blacks Wilmington Parking Auth.). careful here, joint-ventures are suspect, but simply licensing is not. |
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Term
| What does the Contract Clause prohibit |
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Definition
| It prohibits states from enacting a law that retroactively impairs a contract –rights; unless the law serves an overriding public need and the law is reasonably and narrowly tailored to meet that need. |
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Term
Would any of the following violate the Contracts Clause? Explain
A federal law that holds that invalidates any contractual agreement for sale of a customer’s information to third parties.
A state supreme court decision allowing cell phone users to cancel their contracts without paying the cancel fee.
A state law that requires all children toys sold this Christmas season to include batteries. |
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Definition
None of these would violate the Contracts Clause
In the case of the customer information ban, the law is federal and not state. Contract’s Clause applies to state laws not federal ones
Similar in the case of the cell phone contracts, the law applies to state legislation, not court decisions
The toy battery law is not prohibited because it will apply to future contracts not past ones. |
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Term
| (Commerce clause issues aside) Would a state law that required all current new car dealer warranties in effect in the state also include replacement of the light bulb in the dome light violate the Contract Clause? The state enacted the law because of frequent night time assaults on people exiting their car at night. |
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Definition
It’s possible to construct analysis to say No. We know it is a state law that retroactively impairs contract-rights for the parties. But the analysis holds this way:
First, ask whether the legislation substantially impairs the party’s rights under the K. (Destroys most or all of thie rights under the K). Probably not. If it did then ask:
Did it serve an important and legitimate public interest
Was it reasonable and narrowly tailored means to protect that interest? |
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Term
| What type of contracts are particularly scrutinized under the Contract Clause |
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Definition
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Term
| What is an ex post facto law (elements) |
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Definition
Legislation that
Retroactively alters
The criminal law
For the purpose of punishing the person for some past activity |
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Term
| What type of legislative action might be deemed an ex post facto law |
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Definition
| What type of legislative action might be deemed an ex post facto law |
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Term
| When is a law a criminal law |
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Definition
| When it’s purpose is punitive; or when not, its effect becomes punitive in contrast to law’s intent (Registering sex offenders is not to punish the offender, its to alert the public). |
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Term
| What is a Bill of Attainder |
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Definition
| Any federal or state legislation that inflicts punishment, civil or criminal, on NAMED individuals or ascertainable members of a group without judicial trial |
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Term
| What is “Procedural Due Process”? |
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Definition
| A protection from government actions that deprive the individual (you) of life, liberty, or property interest . Protection means the government acted fairly and accurately. Deprivation must be intentional, not negligent. |
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Term
| What are the TWO basic requisites for procedural due process? |
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Definition
Notice
Opportunity to be heard. |
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Term
| To alert the business community, Sheriff Paul created a handout called “Active Shoplifters” and distributed them to local merchants. Earlier in the year, Davis had been arrested but released for shoplifting (claiming he was innocent). Paul included Davis’ name and photo in his pamphlet since he had been arrested for shoplifting. Davis brought suit, for among other things, deprivation of his liberty and property interest in his reputation foregoing proof of actual tangible damages. Will he be successful? |
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Definition
| No, mere injury to one’s reputation is not a liberty interest protected under the 14th Amendment. (Paul v. Davis) |
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Term
| What constitutes a liberty interest under the 14th Amendment? |
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Definition
Significant freedom of action (physical liberty – commitment to a mental institution)
Loss of any freedom or rights granted under the Constitution or statute |
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Term
| What is a property interest? |
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Definition
Conventional real and personal property, tangible and intangible
Government benefits (welfare payments previously granted, right to go to public school (when mandatory), licenses)
Public/government employment – termination only for cause |
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Term
| When a particular liberty or property interest is to be intentionally deprived by the government, what is required for due process? |
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Definition
Notice
Fair opportunity to be heard |
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Term
| In order to determine the appropriate procedures needed under due process, what test does the court apply? |
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Definition
Mathews/Eldridge Test. A three part test that weighs:
The nature of the individual’s interest
The procedural safeguards adopted to reduce/eliminate erroneous decision
The countervailing government interest |
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Term
| When is the earliest a liberty/property interest can be legally deprived (under Due Process) |
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Definition
| Only after the individual has had the opportunity to be heard. (However, post-termination hearing may be allowed in special urgent circumstances) |
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Term
| D is arrested for smuggling drugs. The DEA seizes his plane and boat without a fair opportunity for a hearing. Has D’s due process rights been violated |
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Definition
| Not likely. Thee items may be subject to forfeiture (since they were connected to D’s criminal activity). The government might be able to seize personal property prior to providing an owner a hearig since personal property can be hidden or destroyed. |
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Term
| What is the Fifth Amendment takings prohibition prevent? How does this play out in the 14th Amendment? |
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Definition
The 5th Amendment prohibits 1) government taking of private property, 2) for public use, 3) without just compensation.
The 14th Amendment questions usually relate to a state action equating to a taking for purposes of police power – legislating for the health, welfare, safety, moral well-being of the people. Think eminent domain or regulatory taking |
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Term
| What if an exam answer reads “The action is valid under the 5th Amendment takings power”? |
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Definition
| It’s a wrong answer! There is no takings power. Instead, the source of the takings comes from some other power (in these questions, usually the states “police power”) |
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Term
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Definition
A physical taking – regardless how small (Loretto)
Regulatory takings (look for zoning ordinances, historic preservation, environmental law) These balance three things a) Economic impact on the claimant b) The extent to which the regulation has interfered with an investment-back expectation c) character of the government action (PennCentral)
Deprivation of all economic value – Where a government regulation denies a landowner of ALL economic use of his land. (Exception – nuisance existed when owner acquired the land) (Lucas) |
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Term
| Does taking of private property for public use mean that the property cannot be taken by eminent domain and then givn to private developers? |
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Definition
| Not after Kelo v. City of New London. A taking is for public use so long as the government acts out of reasonable belief that the taking will benefit the public (promoting economic development is a recognized public use) |
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Term
| What is substantive due process? How does it differ from procedural due process? |
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Definition
Substantive due process guarantees that laws will be reasonable and not arbitrary – it embraces equal protection with due process so that similarly situated persons will be treated alike.
Procedural due process scrutinizes the procedures employed to ensure due process (notice and opportunity to be heard). Substantive due process scrutinizes the quality of the substance of the law for fairness. |
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Term
| What if an exam answer reads “The Privileges & Immunities of national citizenship under the 14th Amendment ”? |
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Definition
| Generally going to be a wrong answer. This principle has been vastly deflated. Unless the question asks about restricting a nonresident’s entitlement to be given the same civil rights as the other citizens of the state. |
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Term
| What are the standards of review for Equal Protection and Due Process under substantive due process? |
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Definition
Strict Scrutiny: the government must prove that the law is narrowly tailored (“necessary”) to achieve a compelling government interest. (Fundamental rights like voting, free speech. Laws that discriminate on the basis of NORA)
Intermediate scrutiny: The government must prove that the law is substantially related to and important government interest. (Laws that discriminate on the basis of gender)
Rational Basis Test: The party must prove that the law lacks a rational basis and is unrelated to any legitimate objective. (Zoning ordinances, all other |
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Term
In what two ways can one demonstrate a law intentionally or purposely discriminates against a class of persons?
If a law is neutrally written but has an obvious discriminatory effect, is that also a means to prove discrimination. |
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Definition
It is facially discriminatory (only males may work as bartenders)
The law is neutrally written but is applied in a discriminatory manner (Yick Wo)
Only if the π proves the legislature (or other law-making body) enacted or maintained the law for a discriminatory purpose (Washington v. Davis, Feeney) |
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Term
| Who has the burden of proof in a case involving strict scrutiny? Intermediate scrutiny? Rational basis? |
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Definition
Strict scrutiny and intermediate scrutiny, the government must provide the law if either necessary for a compelling government interest or is substantially related to an important government interest.
In rational basis the individual must prove that the law is not reasonably related to a legitimate government interest |
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Term
| What standard applies to a government affirmative action program |
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Definition
Strict scrutiny
Government action must demonstrate a compelling interest in specifically correcting prior discrimination against protected classes. (Adarand Construction). It is insufficient (non-compelling) that the govt. action is making up for past societal discrimination (Crosson) or the anticipated benefits of diversity in public school education (Parents Involved in Community Schools) |
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Term
| Which standard of review is applied for a law that discriminates on the basis of alienage? |
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Definition
This will be a tricky question because there are TWO standards?
The standard applied to Congress is Rational Basis (simply cannot be arbitrary of unreasonable) – this is because Congress has been given broad plenary power to control immigration and naturalization
The standard applied to state governments is Strict Scrutiny (Exception: States may require US citizenship for holding government policymaking or policy implementing positions (even school teachers) |
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Term
| The law applies intermediate scrutiny to laws that discriminate against women, but not necessarily laws that discriminate against men. True or False |
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Definition
| False. Courts have struck down laws that preferred men over women or women over men in matters of custody (Stanley v. Illinois), alimony (Orr v. Orr), drinking age (Craig v. Boren) professional and employment opportunities, educational opportunities (Mississippi Univ. for Women) and male-only military colleges (U.S. v. Virginia). Note difference in statutory rape laws (important state interest unwanted teen pregnancy) |
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Term
| Rational basis test generally is slam-dunk for the defendant/state. What are you looking for to defeat a law that need only stand on rational basis? |
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Definition
| Look for either a poorly drafted law/case (Reed – men as executors – no reason givn) or animus (fear, hatred, ill will) as in Romer v. Evans. |
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Term
| What standard of review is used for substantive due process and equal protection of fundamental rights? |
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Definition
| Strict or heightened scrutiny |
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Term
| What kind of rights are “fundamental” rights |
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Definition
Privacy rights
Right to vote
Right to interstate travel
Right to own handguns (possibly) |
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Term
| What are the different approaches regarding fundamental rights to abortion |
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Definition
Prior to viability (realistic probability of maintaining the fetus’ life) the state law may not impose an undue burden on a woman’s choice to have an abortion
Items not construed as an undue burden: Requiring written informed consent, 24 hour waiting period, conducting viability tests or a minor obtaining consent from parents (provided a judicial by-pass procedure exists).
Partial-birth abortions bans are not undue purdens
Post-viability: Abortions may be prohibited (state’s interest in the fetus’ life can override woman’s right to choose abortion – provided it does not prohibit an abortion if it’s necessary to protect the woman’s life or health. (Colautti v. Franklin) |
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Term
| Does the fundamental right of privacy extend to obscene reading material |
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Definition
| The fundamental right of privacy encompasses possession of obscene reading material but not a right to buy, ell, or transport (how did it get to the home??) Child pornography is excepted. |
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Term
| What type of family relationship matters are considered a fundamental right? |
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Definition
The right of family members – even extended family members – to live together (Moore v. City of Cleveland)
Right to determine what is in the best interest in raising your child (Troxel v. Granville)
To educate one’s children (Pierce v. Society of Sister’s) and educate one’s children in whatever language they choose (Meyer v. Nebraska) |
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Term
| May a state compel medical treatment? |
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Definition
| A competent adult person has the right to refuse unwanted medical treatment. States are entitled to weigh state interest against individual libery (vaccinations) |
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Term
| Is a law against homosexual acts of sodomy between two consenting adults unconstitutional? Incest? Prostitution |
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Definition
| There is no compelling state interest tocriminalize intimate sexual contact between two consenting adults. However, there is in opposing incest and statutory rape. |
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Term
| May a state impose residency requirements for a fundamental right of voting? |
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Definition
| Yes, relatively short residency requirements restricting the right to vote are valid because there is a compelling interest in ensuring that only bona fide residents vote |
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Term
| In aspiring to a one-person, one vote guarantee may state and local election districts vary. What about federal elections (House of Representatives) |
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Definition
To some degree. Deviations up to 16% have been permitted.
In federal elections, one-person, one vote is required by Art. I of the Constitution. Therefore, courts have demanded more precision(deviations of even 1% have been invalidated) |
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Term
| Is racial gerrymandering permitted? |
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Definition
| Race – or any other suspect classifications – cannot be a predominant factor in drawing boundaries of a voting district. In fact a district’s bizarre shape will be evidence of race as a predominant factor. (Miller v. Johnson) |
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Term
| Is political gerrymandering permitted? |
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Definition
| Lecture notes state that it will risk scrutiny if 1) it is purposeful and 2) it favors one party over the other. The outline states thi sis a “political question” issue and no courts have touched the issue. |
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Term
| What is meant by “content” protection and “conduct” protection in the freedom of speech? Which has more presumptive constitutional protections? |
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Definition
Content refers to the communication of specific ideas. It is through content that the flow of ideas, an important function is democratic societies, arise.
Conduct is the means in which content is communicated (how versus what) – frequently referred to as time, place, and manner.
A law that placed restrictions on content is presumptively unconstitutional. It is subject to strict scrutiny (the regulation must be necessary to achieve a compelling government interest). The law however categorizes speech (ex. obscenity, fighting words) and may be restrained without violating 1st Amendment. The outline holds that a law restricting conduct must be narrowly tailored to meet an important state interest (heightened scrutiny) |
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Term
| What is the difference between a unconstitutionally “overbroad” regulation on speech and a “vague” regulation (also unconstitutional) |
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Definition
An overbroad regulation prohibits substantially more expression than necessary. The concern is that the regulation is so broad it restricts unprotected and protected speech. A law that “bans all first amendment activities at an airport”
A vague regulation is one whose proscribed activity is so imprecisely described that a person of common intelligence could not know what behavior is prohibited. The concern is that it provides in adequate notice (Due Process) and therefore has a chilling effect on speech. Ban on “annoying behavior” |
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Term
| What is “prior restraint”? |
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Definition
| A prior restraint enjoins speech before it is uttered rather than punishing it afterward (Ex. License to publish a book, court decision enjoining any future speeches). Prior restraints are greatly disfavored and the government bears a heavy burden to show a prior restraint is necessary to prevent direct, immediate, and irreparable harm (even to those categories of speech that have little if any 1st Amendment protection) |
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Term
| What limits does the law place on officials who have the power to exercise discretion over First Amendment activities. |
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Definition
| A regulation cannot give officials broad discretion over speech issues; there must be a defined standard for applying the law. If there is a standard, there cannot be unfettered discretion not to apply it. If the regulation provides no standard and gives unlimited discretion to the officals, it is void on its face. The outline states that, conversely, if the law applies a standard and gives no discretion, the law is valid on its face, and the petitioner must seek administrative or judicial relief. |
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Term
| Does the First Amendment include the freedom NOT to speak? What if you disagree with a government message and don’t want your tax money going toward it? |
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Definition
Yes, the First Amendment prevents compelled speech which endorses beliefs with which you do not agree. You can cover up “Live Free or Die” on your license plate and need not be forced to accept a homosexual into your Boy Scout troop
Compelled support of government speech does not raise First Amendment concerns – this does not extend to subsidized private messages. |
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Term
| What are the rules on government restriction of symbolic speech. |
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Definition
Symbolic acts are conduct that is undertaken to communicate an idea (“expressive conduct”) and would be included as speech. Can a war protester tear up his draft card? Not necessarily under a 4-part “O’Brien Test”:
Within the power of the government to regulate
There is a substantial government interest (and we defer to the government for this)
it must be unrelated to the communicative impact (not suppressing a message)
Any infringement on expression is only incidental. (As long as there are adequate alternative avenues). |
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Term
| What I the standard of review for regulating prison speech |
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Definition
| The regulation will be upheld if its reasonably related to a legitimate penological interest |
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Term
| What is the three part test for considering whether a time, place, and manner regulation is valid? |
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Definition
The be valid, government regulation of speech and assembly in public forums must:
Be content neutral: Look for whether the law is broad or narrow in scope (bans all demonstrations or just political ones)
The law narrowly serves a significant state interest
(look for traffic safety, orderly crowd control, prevent interruption of an activity – like school)
The law, in effect, still leaves open alternative channels of communication |
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Term
| Can a law limiting campaign expenditures or campaign contributions be held an unconstitutional burden on free speech? |
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Definition
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Term
| What constitutes a “public forum” |
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Definition
| Public property that has historically been open to speech-related activities (streets, sidewalks, and public parks) |
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Term
| What are the five categories of speech that most lkely serve as exception of restriction of content |
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Definition
Clear and present danger
Fighting words
Obscenity
Defamation
Certain commercial speech |
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Term
| What is the test to whether speech presents a clear and present danger |
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Definition
The Brandenberg test: Generally speech that advocates use of force or violation of law cannot be prohibited unless:
It is directd at inciting imminent lawless action AND
Is likely to incite such imminent lawlessness |
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Term
| What are “fighting words”? |
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Definition
Words which by their utterance inflict injury or tend to incite an immediate breach of peace (Chaplinsky).
Fighting words are very narrowly defined – they must have the direct tendency to cause acts of violence by the person to whom the remark is addressed (“Fuck the Draft” no) |
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Term
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Definition
| Words meant to communicate an intent to place an individual or group in fear of bodily harm. |
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Term
| What three ingredients must be met for material to be considered “obscene” |
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Definition
Thee appear in the “Miller Test”
Prof. Cheh calls these the 3 “S’s’
Sexy: The average person applying community standards would find the work, taken as a whole, appeals to the prurient interest (appeals to shameful or morbid sexual interests)
Sickly specific: The work depicts or describes in a patently offensive way sexual conduct as a defined by statute
Serious lack of value: the work, taken as a whole, lacks serious literary, artistic, political, or scientific value |
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Term
| Can the government restrict speech-making in a U.S. Army parade ground? |
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Definition
Most government property is a non-public forum. Unless specifically dedicating such areas to be fully opened to First Amendment activities, the government may regulate, say, content (government purpose only) or require to be viewpoint neutral.
Look for Army bases, schools, government airports, even telephone oles. |
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