Term
ConLaw Question 01
What is the requirement for cases and controversies? |
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Definition
ConLaw Answer 001
Standing, Ripeness, no Mootness, Political question doctrine |
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Term
ConLaw Question 02
Sierra club sues Disney for wanting to put up a resort on a mountain. Disney challenges their standing because no club member had actually used the mountain. Standing? |
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Definition
ConLaw Answer 002
No. Plaintiffs only may assert injuries that they personally have suffered. Amend the complaint to show that members had used the mountain.
Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm to them. |
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Term
ConLaw Question 03
Cops choke a guy. He seeks to get the hold enjoined from future use. What must guy show to have standing? |
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Definition
ConLaw Answer 003
Likelihood of future injury. Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm to them. Here, the guy was unable to show that he was likely to get a future choke hold. |
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Term
ConLaw Question 04
Because the IRS was hitting hospitals in a certain way, they reduced the amount of free health care. Poor people got rejected for free care, so they sued the IRS to get them to drop the hit. Standing? |
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Definition
ConLaw Answer 004
No. The plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to redress the injury. Even if a government policy is struck down, there is no proof that the change in policy was the cause of a problem (e.g. a reduction in free heath care) because there is an alternate explanation for the problem. |
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Term
ConLaw Question 05
Guy sues for first amendment rights on behalf of his daughter. The girl's mother had sole custody. Standing? |
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Definition
ConLaw Answer 005
No. As a rule, a plaintiff cannot assert claims of others, of third parties, who are not before the court because not personally injured. However, a third party standing is allowed if
(1) there is a close relationship between the plaintiff and the injured third party
(2) the injured third party is unlikely to be able to assert his or her own rights, or
(3) an organization may sue for its members.
Here, the Court ruled that the father did not have standing because the father did not have any custody over his daughter. |
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Term
ConLaw Question 06
Lemerson wants to claim that her jury selection was racially biased. The defense argues that she was not subject to discrimination, and she has no standing to sue for the rights of prospective jurors. Ruling? |
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Definition
ConLaw Answer 006
Lemerson can make her claim. As a rule, a plaintiff cannot assert claims of others, of third parties, who are not before the court because not personally injured. However, a third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights. Criminal defendants have third party standing to raise rights of perspective jurors to be free from race or gender bias during the jury selection process. Prospective jurors experiencing bias are unlikely to sue. |
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Term
ConLaw Question 07
When can an organization sue on behalf of its members? |
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Definition
ConLaw Answer 007
An organization may sue for its members, if
(1) the members would have standing to sue
(2) the interests are germane to the organization's purpose, and
(3) neither the claim nor relief requires participation of individual members |
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Term
ConLaw Question 08
Oz sues the government for giving Mt. Rushmore to a parochial school. He claims standing as a taxpayer. Adequate standing? |
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Definition
ConLaw Answer 008
Ordinarily, there is no standing for generalized grievances. The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law. However, taxpayers have standing to challenge government expenditures as violating the Establishment Clause, such as financial aid to parochial schools, but would not have standing if feds give property. That is narrow. |
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Term
ConLaw Question 09
A drug company wanted to enjoin potential FDA action. Dismissed for lack of ripeness? |
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Definition
ConLaw Answer 009
It was ripe because either they had to comply with the law (expensive) or not comply with the law and risk penalty AND nothing gained by waiting for an actual fine levied by the FDA. Together this made it ripe. |
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Term
ConLaw Question 10
A pregnant Jane Soe sues in federal court because of an abortion regulation. Two months into trial, Soe gives birth. Is the case dismissed as moot? |
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Definition
ConLaw Answer 010
No. Generally, if events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot. However, wrong capable of repetition to the plaintiff but evading review. Like Roe v. Wade. Here, her abortion claim is not moot because Soe can get pregnant again. Gestation is shorter than litigation. |
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Term
ConLaw Q11
Plackter sues the club beneath her apartment for discriminating against women. Two months into the trial, the club and its owners are permanently thrown out of New York for drug stuff. Is the case dismissed as moot? |
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Definition
ConLaw Answer 011
Yes. Generally, if events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot. The three exceptions are
(1) wrong capable of repetition,
(2) voluntary cessation, but resumable, and
(3) class action suits. |
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Term
ConLaw Question 12
Employer uses an employment test with a disparate impact by race. Upon suit, the employer stops using the test, promising never to use it again. Case dismissed as moot? |
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Definition
ConLaw Answer 012
No. Generally, if events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot. However, mootness will not end the cause of action because of voluntary cessation by the defendant, who is free to resume at any time. Examples are employment test with disparate impact by race. Can't just stop giving the exam to avoid litigation. |
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Term
ConLaw Question 13
What is the political question doctrine? |
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Definition
ConLaw Answer 013
Cases are always dismissed as non-justicable political questions in these four instances:
(1) The "republican form of government clause,"
(2) challenges to the President's conduct of foreign policy
(3) Challenges to the impeachment and removal process
(4) challenges to partisan gerrymandering. |
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Term
ConLaw Question 14
Voters adopt new law via initiative. Suit brought because it is direct, and not representative democracy. |
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Definition
ConLaw Answer 014
Non-justicable as political question. The "republican form of government clause." Art IV. If this is on the bar, the answer is always "case dismissed." |
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Term
ConLaw Question 15
Carter withdraws treaty. Goldwater challenges that Senate must approve canceling of treaties. What court hears it? |
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Definition
ConLaw Answer 015
No court. Non-justicable as political question. Challenges to the President's conduct of foreign policy are non-justicable. Such as "the Vietnam War is unconstitutional" or the rescission of a treaty. Neither of these are viable. |
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Term
ConLaw Question 16
A citizen wants to go to court to challenge partisan gerrymandering. Where can he go? |
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Definition
ConLaw Answer 016
Nowhere. Non-justicable as political question. Not viable, due to ruling in 2004. |
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Term
ConLaw Question 17
How many Supreme Court justices must vote to hear a case for certiorari to be granted? |
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Definition
ConLaw Answer 017
Four. Virtually all cases come to the Supreme Court by writ of certiorari, which gives the court complete discretion on whether to hear them. |
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Term
ConLaw Question 18
There's a federal law says that particular cases will be heard in a 3-judge federal district court. Who hears appeal? |
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Definition
ConLaw Answer 018
Goes straight to the U.S. Supreme Court, and they must hear it. Appeals exist for decisions of 3-judge federal district courts. Court must take if statute says "appeals." The appeal skips the Court of Appeals. The voting Rights Act of 1964 has this, but it is the only "appeal" statute. |
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Term
ConLaw Question 19
NY wants to sue NJ in SDNY. NJ objects. Who wins? |
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Definition
ConLaw Answer 019
NJ. The Supreme Court has original and exclusive jurisdiction (the case is originally filed with the Supreme Court) for suits between state governments. NY v. NJ. |
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Term
ConLaw Question 20
What is the final judgment rule? |
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Definition
ConLaw Answer 020
Generally, the Supreme Court may hear cases only after there has been a final judgment of the highest state court, of a United States Court of Appeals, or of a 3-judge federal district court. This is the final judgment rule. No interlocutory appeal. |
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Term
ConLaw Q21
The LAPD beats up Abe. Abe sues officers in CA state courts on a federal Civil Rights claim and a state battery claim. Abe wins on both for $100K under either claim but not both. Officers lose appeal. Can the U.S. SCt review the federal clai |
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Definition
ConLaw Answer 021
No. Even if fed is reversed, still must pay on state grounds. For the Supreme Court to review a state court decision, there must not be an independent and adequate state law ground of decision. "Independent and adequate" means "same damages or equitable relief results." If a state court decision rests on two grounds, one state law and one federal law, if the Supreme Court's reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it. Supreme Court cannot hear cases about state laws not in conflict with federal law. |
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Term
ConLaw Q22
Residents sue a concrete factory on a Federal Clean air claim and a state nuisance claim, seeking injunction. They win in state court under each claim, and again on appeal. Can the Supreme Court grant cert on the Clean Air claim? |
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Definition
ConLaw Answer 022
No Supreme Court review. Same injunction based on state claim, which the Supreme Court can't hear appeal on strictly state issue. |
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Term
ConLaw Question 23
Can Federal courts or state courts hear suits against state governments? |
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Definition
ConLaw Answer 023;;Federal courts (and state courts) may not hear suits against state governments. The principle of sovereign immunity. Sovereign immunity bars suits against states in state courts or federal agencies. There are three exceptions:
(1) waiver,
(2) ¤5 of 14th Amendment, or
(3) federal government suing state governments. |
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Term
ConLaw Question 24
Can states be sued in federal courts through laws adopted under ¤5 of the 14th Amendment? |
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Definition
ConLaw Answer 024
Yes. Generally, federal courts (and state courts) may not hear suits against state governments. However, states may be sued pursuant to federal laws adopted under ¤5 of the 14th Amendment, since later in time than the 11th amendment and designed to limit state power. Congress cannot authorize suits against states under other constitutional provisions. |
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Term
ConLaw Question 25
Can Oz sue New York State because a state regulation caused him to lose his business? |
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Definition
ConLaw Answer 025
States can't be sued. But you can sue state officer for personal damages, but not the state treasury. |
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Term
ConLaw Question 26
What is abstention? |
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Definition
ConLaw Answer 026
Abstention (for the bar) means Federal courts may not enjoin pending state court proceedings. |
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Term
ConLaw Question 27
When does congress have a general police power? |
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Definition
ConLaw Answer 027
MILD:(1) legislating for the Military
(2) Indian reservations
(3) federal Land and territories, and
(4) for the District of Columbia |
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Term
ConLaw Question 28
Can Congress can fund the Army with bake sales? |
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Definition
ConLaw Answer 028
Yes. The necessary and proper clause. Any means not prohibited by the constitution are allowed if carrying out some authority granted by the constitution to the Congress. Congress can fund the Army with bake sales if it wants because the have authority to raise an army and bake sales are not prohibited. |
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Term
ConLaw Question 29
What are the three manifestations of commerce? |
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Definition
ConLaw Answer 029
The Commerce Power as of 1995, commerce is all interstate intercourse and has three manifestations:
(1) Congress may regulate the channels of interstate commerce. Highways, the internet.
(2) Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce. Trucks.
(3) Congress may regulate activities that have a substantial effect on interstate commerce. Can limit home grown food production because in the aggregate reduces local demand for that food that moves interstate. |
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Term
ConLaw Question 30
Can congress regulate the growing of marijuana for personal use? |
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Definition
ConLaw Answer 030
Yes, because it is sold in interstate markets. |
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Term
ConLaw Question 31
Can congress give federal standing to domestic violence victims based on cumulative impact of violence? |
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Definition
ConLaw Answer 031
No. In the area of non-economic activity, a substantial effect cannot be based on cumulative impact. Gender motivated violence reduces economic activity by putting women in hospitals, but beating women it is not an economic activity so cannot regulate under the commerce clause. |
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Term
ConLaw Question 32
How does the 10th amendment limit congressional powers? |
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Definition
ConLaw Answer 032
Congress cannot compel state regulatory or legislative action. Congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program. Highway funding and drinking age [the purpose is probably "highway safety" but not clear for the lecture]. |
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Term
ConLaw Question 33
Federal law requires local cops to do background checks on guns. |
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Definition
ConLaw Answer 033
Unconstitutional. Federal government was conscripting local officers in violation of 10th amendment. |
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Term
ConLaw Question 34
Congress passes law that says any state with drinking age lower than 21 gets no federal highway money. Unconstitutional as violation of 10th amendment? |
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Definition
ConLaw Answer 034
No. Congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program. Highway funding and drinking age [the purpose is probably "highway safety" but not clear for the lecture]. |
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Term
ConLaw Question 35
Congress passes law prohibiting state governments from selling DMV lists. Unconstitutional under 10th Amendment? |
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Definition
ConLaw Answer 035
No. Congress may prohibit harmful commercial activity by state governments. Congress is not imposing a duty;it is prohibiting a commercial transaction. |
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Term
ConLaw Question 36
Congress passed the Religious Freedom Restoration Act, which expanded religious freedoms available in the states under authority of 14th amendment section 5. What was the supreme court's beef? |
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Definition
ConLaw Answer 036
Congress' power under ¤5 of the 14th Amendment. Congress may not create new rights or expand the scope of rights under ¤5 of the 14th Amendment. Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be "proportionate" and "congruent" to remedying constitutional violations. Religious Freedom Restoration Act pushed back against some court rulings, and court found it unconstitutional. |
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Term
ConLaw Question 37
Can congress delegate legislative powers? |
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Definition
ConLaw Answer 037
No limit exists on Congress' ability to delegate legislative power to executive agencies or even to the judiciary. The court has never found a law unconstitutional as excessive delegation. Never pick "excessive delegation" as an answer. |
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Term
ConLaw Question 38
What is a legislative veto |
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Definition
ConLaw Answer 038
Congress attempts to overturn an executive action without bicameralism or presentment. Like overturning an administrative act. |
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Term
ConLaw Question 39
Can the president veto part of a bill? |
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Definition
ConLaw Answer 039
No. Line item veto is the veto of part of a bill. President can't pick and choose. Bills are written and edited by congress, not the president. |
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Term
ConLaw Question 40
Can congress give itself discretionary power to cut a budget after it is passed? |
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Definition
ConLaw Answer 040
Congress may not delegate executive power to itself or its officers. Congress cannot have the power to implement a law, such as discretionary budget cutting after the budget is passed. |
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Term
ConLaw Question 41
What is a treaty? |
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Definition
ConLaw Answer 041
Treaties are agreements between the United States and a foreign country that are negotiated by the President and are effective when ratified by the Senate. |
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Term
ConLaw Question 42
If a treaty conflicts with a federal statute, who wins? |
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Definition
ConLaw Answer 042
If a treaty conflicts with a federal statute, the one adopted last in time controls. (this is often on the test because the law is so settled) |
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Term
| ConLaw Question 43;;Alaska allows the hunting of bald eagles, in violation of a treaty with Canada. Which wins? |
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Definition
ConLaw Answer 043
The treaty. Treaties prevail over conflicting state laws. |
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Term
ConLaw Question 44
What is an executive agreement? |
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Definition
ConLaw Answer 044
An executive agreement is an agreement between the United States and a foreign country that is effective when signed by the President and the head of the foreign nation. No senate approval required. |
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Term
ConLaw Question 45
The senate ratifies a treaty preventing U.S. citizens from trading in Nazi memorabilia. This violates the Constitution. Who wins? |
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Definition
ConLaw Answer 045
The Constitution. If a treaty conflicts with the United States Constitution, it is invalid. |
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Term
ConLaw Question 46
Which wins: executive agreements or state laws? |
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Definition
ConLaw Answer 046
Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution. |
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Term
ConLaw Question 47
President Bhatt deploys the U.S. Navy to Hungary to teach the populace the choreography to N'Sync's final tour. Outraged, congress challenges him. Who wins? |
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Definition
ConLaw Answer 047
President Bhatt (and Hungary). The President has broad powers as Commander-in-Chief to use American troops in foreign countries. Use of US troops has never been found unconstitutional. No matter how outrageous, on the bar exam do not say the use of troops overseas is unconstitutional. The correct answer is "case dismissed as a political question" or "dismissed since the president has broad authority." |
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Term
ConLaw Question 48
Can the president install ambassadors willy-nilly? |
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Definition
ConLaw Answer 048
The President appoints ambassadors, federal judges and officers of the United States. Must be approved by congress to take effect. |
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Term
ConLaw Question 49
The Attorney General is an officer. US Attorneys can be fired by the Attorney General, so they are inferior. Why do you care? |
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Definition
ConLaw Answer 049
The President appoints ambassadors, federal judges and officers of the United States. Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts. |
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Term
ConLaw Question 50
Congress passes statute with new federal agency, splitting the appointment powers between president, congress, and judiciary. Constitutional? |
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Definition
ConLaw Answer 050
No. Congress may not give itself or its officers the appointment power. Congress cannot pick any agency heads, or executive branch personnel itself. |
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Term
ConLaw Question 51
Can president fire independent presidential investigator at will if Congress says it can't? |
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Definition
ConLaw Answer 051
No. The president has removal power, meaning that unless removal is limited by statute, the President may fire any executive branch office. For Congress to limit removal, it must be an office where independence from the President is desirable, Congress cannot prohibit removal, it can only limit removal to cases where there is good cause. Otherwise the president can fire at will. Here, because Congress can demand good cause, and independence from the president is desirable, the president cannot fire at will. |
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Term
ConLaw Question 52
How does impeachment work? |
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Definition
ConLaw Answer 052
The President, the Vice-President, federal judges and officers of the United States can be impeached and removed from the office for treason, bribery or for high crimes and misdemeanors. Impeachment by the House of Representatives requires a majority vote;conviction in the Senate requires a 2/3 vote |
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Term
ConLaw Question 53
A month into her term, President Katz was sued by Abe for a million bucks for sexually harassing him at her preinaugural breakfast. President Katz claims absolute immunity to civil suits for money damages. How's that go? |
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Definition
ConLaw Answer 053
Not well. The President has absolute immunity to civil suits for money damages for any actions while in office, not actions before he took office. Because the pre-inaugural breakfast was before she was in office, there is no absolute civil immunity. |
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Term
ConLaw Question 54
Can the president sit on presidential papers in the face of a request for them as evidence in a criminal trial? |
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Definition
ConLaw Answer 054
No. The President has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interests. Evidence in a criminal trial is such a case. |
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Term
ConLaw Question 55
SDNY Judge Williams throws Lemerson in jail for federal drug trafficking crimes. President Katz extends a pardon. Does Lemerson get out of jail? |
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Definition
ConLaw Answer 055
Yes. The President has the power to pardon those accused or convicted of federal (not state) crimes (not civil liability, such as civil contempt of court). Can't pardon people who are impeached. |
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Term
ConLaw Question 56
SDNY Judge Williams throws Lemerson in jail for civil contempt of court. President Katz extends a pardon. Does Lemerson get out of jail? |
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Definition
ConLaw Answer 056
No. The President has the power to pardon those accused or convicted of federal (not state) crimes (not civil liability, such as civil contempt of court). Can't pardon people who are impeached. Because this is civil liability, the president cannot pardon her. |
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Term
ConLaw Question 57
What is express preemption? |
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Definition
ConLaw Answer 057
Express preemption. Fed statute expressly says it wholly occupies the field. |
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Term
ConLaw Question 58
What is implied preemption? |
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Definition
ConLaw Answer 058
Implied preemption. If law is silent look for these 3 possibilities:
(1) If federal and state law are mutually exclusive, federal law preempts state law
(2) If state law impedes the achievement of a federal objective, federal law preempts state law, or
(3) If Congress evidences a clear intent to preempt state law, federal law preempts state law. |
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Term
ConLaw Question 59
A federal law says that drugs must have certain label and state law says it cannot. What happens? |
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Definition
ConLaw Answer 059
The state law is stuck down. If federal and state law are mutually exclusive, federal law preempts state law. Example, fed law is that drugs must have certain label and state law says it cannot;state law is stuck down. However state laws can be stricter unless congress clearly prohibits it, see this in environmental matters. |
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Term
ConLaw Q60
Federal law provides for age discrimination procedures. State law mandates that employees using those procedures have certain state benefits terminated. Constitutional? |
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Definition
ConLaw Answer 060
No. If state law impedes the achievement of a federal objective, federal law preempts state law. Example is a state law that conditions some benefit on NOT using federal procedures or seeking relief from the federal government. That will be struck down. |
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Term
ConLaw Question 61
A new Texas state law regulates immigration more strictly than the federal law. Constitutional? |
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Definition
ConLaw Answer 061
No. If Congress evidences a clear intent to preempt state law, federal law preempts state law. Immigration law is a good example. States cannot regulate immigration because Congress clearly intends to occupy the field, though has not expressly pre-empted state action. |
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Term
ConLaw Question 62
Federal law mandates factory mercury emissions no higher than 9ppm. California state law mandates factory mercury emissions no higher than 6ppm. Constitutional? |
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Definition
ConLaw Answer 062
Yes. If federal and state law are mutually exclusive, federal law preempts state law. For example, where a federal law says that drugs must have certain label and state law says it cannot;state law is stuck down. However state laws can be stricter unless congress clearly prohibits it, see this in environmental matters. |
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Term
ConLaw Question 63
Congress passes the law that says only FDA can set labeling requirements for meat. State wants to add a sticker to meat about irradiation. |
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Definition
ConLaw Answer 063
Express preemption. Fed statute expressly says it wholly occupies the field. |
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Term
ConLaw Question 64
NLRB wants people to file grievances. FL state law reduces benefits to people who file NLRB claim. |
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Definition
ConLaw Answer 064
If state law impedes the achievement of a federal objective, federal law preempts state law. Example is a state law that conditions some benefit on NOT using federal procedures or seeking relief from the federal government. That will be struck down. |
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Term
ConLaw Question 65
State passes law to tax a federal bank. Constitutional? |
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Definition
ConLaw Answer 065
No. States may not tax or regulate (so as to place a significant burden on) federal government activity. |
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Term
ConLaw Question 66
Can you pay a state tax out of the federal treasury? |
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Definition
ConLaw Answer 066
No. It is unconstitutional to pay a state tax out of the federal treasury. |
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Term
ConLaw Question 67
Can a state make a military base's department store pay state sales tax? |
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Definition
ConLaw Answer 067
No. State can tax private companies operating on federal land but cannot tax stores on government land owned by the federal government. |
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Term
ConLaw Question 68
A new California state law mandates that all factories must not expel copper dust, much more strict than the federal requirement. Must the San Francisco mint comply? |
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Definition
ConLaw Answer 068
No. Federal government never has to comply with state pollution control levels. |
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Term
ConLaw Question 69
What are Inter-governmental Immunities? |
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Definition
ConLaw Answer 069
The immunities that the federal government has for unwanted state taxation. |
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Term
ConLaw Question 70
What is the dormant commerce clause? |
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Definition
ConLaw Answer 070
The dormant commerce clause (exam might call this "the negative implications of the commerce clause). State and local law are unconstitutional if they place an undue burden on interstate commerce. |
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Term
ConLaw Question 71
What is the privileges and immunities clause of Article IV |
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Definition
ConLaw Answer 071
The privileges and immunities clause of Article IV. Anti-discrimination provision - no state may deny citizens of other states the rights and privileges it provides its own citizens (residents). |
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Term
ConLaw Question 72
What is the privileges or immunities clause of the 14th Amendment. |
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Definition
ConLaw Answer 072
The privileges or immunities clause of the 14th Amendment. Was intended to protect citizens against actions of their own state governments, but was held to means the something else. Substantive due process is how the court gets around its earlier decision here. This is always a wrong answer on the bar exam unless the question is about the right to travel (change residence/relocate within the US). California had a state law limiting welfare benefits for new residents, Struck down under PI of 14th Amendment. |
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Term
ConLaw Question 73
State law discriminates in housing. Unconstitutional because of the privileges and immunities of the 14th Amendment? |
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Definition
ConLaw Answer 073
No. Privileges and immunities is always a wrong answer unless it applies to the right to travel. |
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Term
ConLaw Question 74
California had a state law limiting welfare benefits for new residents. How struck down? |
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Definition
ConLaw Answer 074
Struck down under PI of 14th Amendment as violating the right to travel. PI of 14th am is always a wrong answer unless it applies to the right to travel. Not 4th Am because it wasn't discriminating against out-of-staters. |
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Term
ConLaw Question 75
NJ law says no trash disposal from out of state sources. Why unconstitutional? |
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Definition
ConLaw Answer 075
Violates the dormant commerce clause. [Unconstitutional under the privileges and immunities clause of Article IV.] |
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Term
ConLaw Question 76
Hawaii law said all trucks driving in-state must have curved mud-flaps. Can it survive a constitutional challenge? |
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Definition
ConLaw Answer 076
Yes. If a law does not facially discriminate against out-of-staters, the privileges and immunities clause of Article IV does not apply. But, if the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits, even if it does not discriminate. Law does not discriminate on its face - it applies to all trucks no matter where they are from. In any other state, the burden is not worth the benefit; every truck will have to switch to the approved design, which no other state requires. Either refit every truck or not operate some trucks in that state. Also, it is not clear that curved flaps are better than strait ones. However, trucks don't drive between Hawaii and other states, so the law is probably not that much of a burden on interstate commerce. |
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Term
ConLaw Question 77
Michigan law said all trucks driving in-state must have curved mud-flaps. Can it survive a constitutional challenge? |
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Definition
ConLaw Answer 077
No. If a law does not facially discriminate against out-of-staters, the privileges and immunities clause of Article IV does not apply. But, if the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits, even if it does not discriminate. Law does not discriminate on its face - it applies to all trucks no matter where they are from. However the burden is not worth the benefit; every truck will have to switch to the approved design, which no other state requires. Either refit every truck or not operate some trucks in that state. Since not clear curved flats are better than strait ones, the law is not worth that burden. |
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Term
ConLaw Question 78
What happens to state laws that discriminate against out of staters? |
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Definition
ConLaw Answer 078
Generally, if the law discriminates against out-of-staters, If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose. |
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Term
ConLaw Question 79
Wyoming enacted a ban on bait fish imports to protect local wildlife from out of state parasites and such. Constitutional? |
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Definition
ConLaw Answer 079
Yes. Generally, if the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose. However, here there was an important government purpose, and this ban was the most reasonable way to protect it. |
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Term
ConLaw Question 80
Florida mandates that college tuition at state schools is less for residents than out of state students. Constitutional? |
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Definition
ConLaw Answer 080
Yes. Generally, the privileges and immunities clause of Article IV has an Anti-discrimination provision - no state may deny citizens of other states the rights and privileges it provides its own citizens (residents). However, there is a market participant exception. A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses. |
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Term
ConLaw Question 81
A government run cement company charges less for residents than out of state buyers. Constitutional? |
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Definition
ConLaw Answer 081
Yes. Generally, the privileges and immunities clause of Article IV has an Anti-discrimination provision - no state may deny citizens of other states the rights and privileges it provides its own citizens (residents). However, there is a market participant exception. A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses. Note that the benefit goes to those who likely paid tax to the state. |
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Term
ConLaw Question 82
NY passes a law mandating that private colleges must charge less for in-state students and more to out of state students. Constitutional? |
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Definition
ConLaw Answer 082
No. A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses. But not private businesses, which would violate the dormant commerce clause. |
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Term
ConLaw Question 83
How is the Article IV privileges and immunities clause applied? |
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Definition
ConLaw Answer 083
If the law discriminates against out-of-staters with regard to their ability to earn their livelihood or their civil liberties, it violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose. |
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Term
ConLaw Question 84
A state law setting a shrimp fishing license at $25 for in state applicants, $2500 for out of state. Constitutional? |
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Definition
ConLaw Answer 084
No. Where a state law discriminates against out-of-staters' ability to earn a living, it violates the privileges and immunities clause of Article IV of the Constitution unless it is necessary to achieve an important government purpose. |
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Term
ConLaw Question 85
New Hampshire passes a law that says to be admitted to the New Hampshire bar, you must be resident. The law is challenged by Vermont woman. Who wins? |
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Definition
ConLaw Answer 085
VT woman wins. Where a state law discriminates against out-of-staters' ability to earn a living, it violates the privileges and immunities clause of Article IV of the Constitution unless it is necessary to achieve an important government purpose. |
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Term
ConLaw Question 86
Montana state law mandates an elk hunting license, charging a small fee for in-state applicants, and a high fee for out-of-state applicants. Unconstitutional under Article IV privileges and immunities? |
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Definition
ConLaw Answer 086
No. Where a state law discriminates against out-of-staters' ability to earn a living, it violates the privileges and immunities clause of Article IV of the Constitution unless it is necessary to achieve an important government purpose. Elk hunting is a hobby, has nothing to do with earning livelihood. Article IV privileges and immunities does not apply. |
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Term
ConLaw Question 87
New Jersey passes allow forbidding out of state trash to be put in its landfills. Can the Philadelphia Hauling Corporation challenge the law for violating its privileges and immunities? |
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Definition
ConLaw Answer 087
No. Challenger is corporation, so it can only use dormant commerce clause, not privileges and immunities, which is only for natural citizens. |
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Term
ConLaw Question 88
Iowa passes a law providing for tax credits for consumers buying in-state ethanol. It is challenged on privileges and immunities grounds. Result? |
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Definition
ConLaw Answer 088
Unconstitutional. States may not use their tax systems to help in-state businesses. |
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Term
ConLaw Question 89
HussainCo is a California company doing no business in New York. New York sends it a tax bill. Constitutional? |
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Definition
ConLaw Answer 089
No. A state may only tax activities if there is a substantial nexus to the state. |
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Term
ConLaw Question 90
Interstate trucking company working equally in all states. NY wants to tax it 1% based on its total revenue. Can the company raise a constitutional challenge? |
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Definition
ConLaw Answer 090
Yes. State taxation of interstate businesses must be fairly apportioned. Can apportion by revenue/receipts or amount of activity occurring in state. |
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Term
ConLaw Question 91
What is the Full Faith and Credit rule? |
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Definition
ConLaw Answer 091
FULL FAITH AND CREDIT. Courts in one state must give full faith and credit to judgments of courts in another state, so long as:
(1) The court that rendered the judgment had jurisdiction over the parties and the subject matter
(2) The judgment was on the merits, and
(3) the judgment is final. |
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Term
ConLaw Question 92
Professor Bhatt is fired from his job at Duke University for criticizing the university president. Can he find constitutional relief? |
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Definition
ConLaw Answer 092
No, based on the state action doctrine. Private conduct need not comply with the Constitution. Thus the first amendment does not apply to private schools but does to public schools. |
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Term
ConLaw Question 93
Congress enacts a law prohibiting a particular form of private race discrimination. Challengeable under the state action doctrine? |
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Definition
ConLaw Answer 093
No. Generally, private conduct need not comply directly with the Constitution. However, Congress, by statute, may apply constitutional norms to private conduct, because they can regulate private behavior if they have a basis for exercise. |
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Term
ConLaw Question 94
Congress passes a law that forbids private race discrimination in housing. Will the 13th amendment provide the strongest grounds for constitutionality? |
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Definition
ConLaw Answer 094
No. The 13th amendment is the wrong answer. But Congress can pass laws under the 13th. |
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Term
ConLaw Q95
VAWA was challenged as outside the reach of Congress' powers. It provided the victims of gender-based crimes the ability to bring suit in federal courts. Congress said it was trying to advance equality for women under ¤5 of the 14th Amendmen |
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Definition
ConLaw Answer 095
Congress cannot use ¤5 of the 14th Amendment to regulate private behavior. |
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Term
ConLaw Question 96
What is the public function exception? |
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Definition
ConLaw Answer 096
The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government. |
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Term
ConLaw Question 97
Company town. private town (set up by a company). It cannot ban the Jehovah's Witnesses. |
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Definition
ConLaw Answer 097
Running a town is performing a task traditionally, exclusively done by the government. The public function exception. The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government. |
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Term
ConLaw Question 98
In a small town, party nominations are turned over to a private organization. When they hold the primary, they refuse to let blacks vote. Can a black resident sue? |
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Definition
ConLaw Answer 098
Yes. Generally, the constitution provides no relief for private acts. However, if a private company is performing a task traditionally, exclusively done by the government, constitutional concepts like due process will apply. Holding an election for public office is performing a task traditionally, exclusively done by the government. |
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Term
ConLaw Question 99
Safia hasn't been paying her utility bills. The private utility company that provides her electricity goes to cut her service. Safia sues that they can't cut her service without giving her due process. Is she crazy? |
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Definition
ConLaw Answer 099
She's not crazy, but she still loses. Generally, the constitution provides no relief for private acts. There is an exception to this rule if a private company is performing a task traditionally, exclusively done by the government, constitutional concepts like due process will apply. However, running a utility is not performing a task traditionally, exclusively done by the government. There have long been private utilities. No need for due process, so Safia's challenge loses. |
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Term
ConLaw Question 100
What is the entanglement exception? |
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Definition
ConLaw Answer 100
The entanglement exception. The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity. |
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Term
ConLaw Question 101
Where does the entanglement exception apply? |
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Definition
ConLaw Answer 101
(1) court can't enforce a racially restrictive covenant.
(2) it is state action to lease premises to a restaurant that discriminates
(3) it is state action to provide free books to a private school that discriminates.
(4) it is not state action if a private school is 99% state funded and the school fires a teacher based on the content of her speech. The state did not encourage the firing and the subsidy is an insufficient basis for concluding it is state action.
(5) it is not state action if NCAA orders suspension of state university coach. NCAA is private though many members are public universities.
(6) is state action if private entity regulates intra-state sports. Interstate and intrastate are treated differently. Obviously, this is inconsistent.
(7) If a private club has a liquor license it is not state action if the club discriminates. |
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Term
ConLaw Question 102
Can a court enforce a racially restrictive covenant? |
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Definition
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Term
ConLaw Question 103
Is it state action to lease premises to a restaurant that discriminates? |
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Definition
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Term
ConLaw Question 104
A private school is 99% state funded and the school fires a teacher based on the content of her speech. State action? |
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Definition
ConLaw Answer 104
No. The state did not encourage the firing and the subsidy is an insufficient basis for concluding it is state action. |
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Term
ConLaw Question 105
Is it state action if NCAA orders suspension of state university coach? |
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Definition
ConLaw Answer 105
No. NCAA is private though many members are public universities. |
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Term
ConLaw Question 106
Is it a state action if private entity regulates intra-state sports? |
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Definition
ConLaw Answer 106
Yes. Interstate and intrastate are treated differently. Obviously, this is inconsistent. |
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Term
ConLaw Question 107
A discriminatory private club has a liquor license. State action? |
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Definition
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Term
ConLaw Question 108
The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the 14th Amendment. Exceptions? |
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Definition
ConLaw Answer 108
(1) The 2nd Amendment right to bear arms,
(2) The 3rd Amendment right to not have soldiers quartered in a person's home,
(3) The 5th Amendment right to grand jury indictment in criminal cases,
(4) The 7th Amendment right to jury trial in civil cases,
(5) The 8th Amendment right against excessive fines. The rest of it - prohibition against excessive bail and the prohibition against cruel and unusual punishment - does. |
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Term
ConLaw Question 109
What are the three levels of scrutiny? |
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Definition
ConLaw Answer 109
(1) Rational Basis: a law is upheld if it is rationally related to a legitimate government purpose. The challenger has the burden of proof.
(2)Intermediate scrutiny: a law is upheld if it is substantially related to an important government purpose. Only will look to the government actual purpose. The government has the burden of proof.
(3) Strict scrutiny: a law is upheld if it is necessary to achieve a compelling government purpose. Only will look to the government actual purpose. Least restrictive alternative analysis is used. Government usually loses, and government has the burden of proof. |
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Term
ConLaw Question 110
What is rational basis review? |
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Definition
ConLaw Answer 110
Rational Basis: a law is upheld if it is rationally related to a legitimate government purpose. The challenger has the burden of proof. |
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Term
ConLaw Question 111
What is intermediate scrutiny? |
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Definition
ConLaw Answer 111
Intermediate scrutiny: a law is upheld if it is substantially related to an important government purpose. Only will look to the government actual purpose. The government has the burden of proof. |
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Term
ConLaw Question 112
What is strict scrutiny? |
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Definition
ConLaw Answer 112
Strict scrutiny: a law is upheld if it is necessary to achieve a compelling government purpose. Only will look to the government actual purpose. Least restrictive alternative analysis is used. Government usually loses, and government has the burden of proof. |
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Term
ConLaw Question 113
When has there been a deprivation liberty? |
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Definition
ConLaw Answer 114
A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute. On the bar questions are usually about constitutional rights. But for statutes remember:
(1) except for in an emergency, before an adult can be civilly committed there must be a notice and hearing,
(2) when a parent institutionalizes a child, only requirement is for a screening by a neutral fact finder.
(3) harm to reputation by itself is not a loss of liberty. Need a tangible (i.e. monetary) injury.
(4) prisoners rarely have liberty interests. |
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Term
ConLaw Question 114
Is losing your job a deprivation of property? |
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Definition
ConLaw Answer 114
Yes. A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled. Entitlements means "a reasonable expectation to continue receipt of a benefit." Thus if hired for a set period (aka term employment) you have a reasonable expectation of employment for that period. |
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Term
ConLaw Question 115
A prisoner slips and falls on a pillow that was left on a staircase. Government liability for denial of due process? |
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Definition
ConLaw Answer 115
No. Government negligence is not sufficient for a deprivation of due process. Leaving a pillow on a staircase in not enough, even if someone is injured. Generally, there must be intentional government action or at least reckless action for liability to exist. |
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Term
ConLaw Question 116
A high speed chase by the police kills a teenage bystander. The teenager's mom wants to sue the government. Can she? |
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Definition
ConLaw Answer 116
No. The government has NO liability. In an emergency case, there is only liability if the officer's behavior shocks the conscience, with intent to kill the victim. This accident isn't "shocking." |
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Term
ConLaw Question 117
If Child Protective Services fails to respond to allegations of abuse and the child dies, are they liable for denial of due process? |
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Definition
ConLaw Answer 117
Generally, the government's failure to protect people from privately inflicted harms does not deny due process. If Child Protective Services fails to respond to allegations of abuse and the child dies, they are not liable. No duty to protect against the private harm inflicted by the parents. |
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Term
ConLaw Question 118
If there is a deprivation of rights, What procedures are required? |
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Definition
ConLaw Answer 118
The test (which will be on the exam): Balance
(1) The importance of the interest to the individual.
(2) The ability of additional procedures to increase the accuracy of the fact-finding. Increasing accuracy means "reducing occurrences of erroneous deprivations"
(3) The government interest in administrative efficiency, usually measured in $. |
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Term
ConLaw Question 119
Ruth's welfare benefits were cut off, and she was given a hearing a week later. Due process violation? |
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Definition
ConLaw Answer 119
Yes. Before welfare benefits can be terminated there must be notice and a hearing. |
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Term
ConLaw Question 120
Ruth's social security benefits were cut off, and she was given a hearing a week later. Due process violation? |
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Definition
ConLaw Answer 120
Yes. When Social Security disability benefits are terminated, a post-termination hearing is enough. |
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Term
ConLaw Question 121
Brit's teenage son Lambert was suspended from school, and Brit was given notice of the charges. Due process violation? |
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Definition
ConLaw Answer 121
Yes. When a kid is disciplined by a public school (suspended), there must be notice of charges and an opportunity to explain. |
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Term
ConLaw Question 122
Because he's a huge drunk, Brit permanently lost custody of his young son Henson. He was given advance notice, and a hearing is scheduled for next week. Due process violation? |
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Definition
ConLaw Answer 122
Yes. Before parental custody is permanently terminated, notice and a hearing is required. |
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Term
ConLaw Question 123
The judge offers no instructions as to punitive damage awards. Due process violation? |
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Definition
ConLaw Answer 123
Yes. Punitive damage awards require instructions to the jury, and have judicial review, to ensure reasonableness. |
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Term
ConLaw Question 124
Mercenary sharpshooter Safia is caught in Malawi and held as an enemy combatant. She is held without charges, and denied a lawyer. Due process violation? |
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Definition
ConLaw Answer 124
Yes. American citizen apprehended in anther country and held as an enemy combatant must be given due process (notice of charges, representation by an attorney and meaningful factual hearing). |
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Term
ConLaw Question 125
Ruth is in trouble for tax evasion. The government knocks on her door with a surprise warrant to seize her pink laptop (a prized possession and family heirloom). Due process violation? |
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Definition
ConLaw Answer 125
Yes, because there was no hearing. Except in exigent circumstances, government seizure of assets or pre-judgment attachment must be proceeded by notice and a hearing. Exigent circumstances means defendant would dispose of property if given notice of the seizure. In that case, can attach first and then have notice and a hearing. |
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Term
ConLaw Question 126
Brit and Safia buy a car. Brit uses it as a getaway car for a bank heist. The car gets impounded during trial. Can Safia get the car back as an innocent co-owner? |
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Definition
ConLaw Answer 126
No. Due process does not require an "innocent owner" defense to government seizure. Safia cannot get it back by arguing they are innocent. |
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Term
ConLaw Question 127
What is substantive due process? |
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Definition
ConLaw Answer 127
Substantive Due Process asks if the government has adequate reason (substantive basis) for taking life, liberty or property. Economic liberty and privacy are the two major applications. |
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Term
ConLaw Question 128
What standard of review is used for laws effecting economic rights when challenged under substantive due process? |
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Definition
ConLaw Answer 128
Only a rational basis test is used for laws affecting economic rights. Government wins every time. Examples are minimum wage laws and regulation of a profession. |
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Term
ConLaw Question 129
What must the government do to take private property for public use? |
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Definition
ConLaw Answer 129
The takings clause of the 5th amendment. The government may take private property for public use if it provides just compensation. This has its own test: (1) Is there a taking (physical or regulatory), (2) is it for public use? (3) is just compensation paid?
It is not considered a taking if the property is still economically productive. |
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Term
ConLaw Question 130
State requires developer to provide sidewalks as condition for a building permit. Taking? |
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Definition
ConLaw Answer 130
No, this is ok. Government conditions on development of property must be justified by a benefit to the government that is roughly proportionate to the burden imposed on the plaintiff; otherwise it is a taking. |
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Term
ConLaw Question 131
What is a possessory taking? |
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Definition
ConLaw Answer 131
Possessory taking - Government confiscation or physical occupation of property is a taking. No matter how small there must be compensation. Of course compensation will be small also. |
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Term
ConLaw Question 132
What is a regulatory taking? |
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Definition
ConLaw Answer 132
Regulatory taking - Government regulation is a taking if it leaves no reasonable economically viable use of the property. Reduction in value is not the standard. Example, government zoning prevents ANY development on you real property. This is a taking. But not allowing owners to build on existing structures is not a taking if the property is still economically productive. |
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Term
ConLaw Question 133
How is just compensation measured? |
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Definition
ConLaw Answer 133
Just compensation is measured by the loss to the owner in market terms, not the gain of the taker. Thus is fair market value is $100,000 and government takes it, later getting $10 million in benefit, the compensation due is $100,000 |
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Term
ConLaw Question 134
What qualifies for public use such that a taking can be effected? |
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Definition
ConLaw Answer 134
Just about anything will qualify as public use. The standard is "government acted out of reasonable belief that the taking would benefit the public." Under this standard, can even take property and turn it over to a private business as long as compensation is paid. |
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Term
ConLaw Question 135
A state imposes a 3-year moratorium on building in a county because rapid suburban development is disturbing the water table. Taking? |
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Definition
ConLaw Answer 135
No. The regulation is reasonable and temporary, so not a taking. Temporarily denying an owner use of property is not a taking so long as the government's action is reasonable. |
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Term
ConLaw Question 136
If you buy the property knowing of the restriction does it limit your ability to bring a takings claim? |
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Definition
ConLaw Answer 136
No. A property owner may bring a takings challenge to regulations that existed at the time the property was acquired. If you buy the property knowing of the restriction it does not limit your ability to bring a claim. |
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Term
ConLaw Question 137
State requires developer to provide sidewalks as condition for a building permit. Is this a regulatory taking? |
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Definition
ConLaw Answer 137
No. Government conditions on development of property must be justified by a benefit to the government that is roughly proportionate to the burden imposed on the plaintiff;otherwise it is a taking. Example, state requires developer to provide sidewalks as condition for a building permit. This is ok. |
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Term
ConLaw Question 138
What is the contracts clause? |
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Definition
ConLaw Answer 138
No state shall impair the obligations of contracts. Applies only to state or local interference with existing contracts. Does not apply to the federal government. Feds would have to be challenged on due process grounds for interfering with existing contracts. Also, states can regulate future contracts (i.e. change the law of contracts) |
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Term
ConLaw Question 139
What is the standard of review for state interference with private contracts? |
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Definition
ConLaw Answer 139
Intermediate scrutiny: Does the legislation substantially impair a party's rights under an existing contract? If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest? |
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Term
ConLaw Question 140
What is the standard of review for State or local interference with government contracts? |
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Definition
ConLaw Answer 140
State or local interference with government contracts must meet strict scrutiny. The Court is suspicious when they want to get out of contracts. |
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Term
ConLaw Question 141
What is an ex post facto law? |
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Definition
ConLaw Answer 141
Ex post facto means either 1. criminal punishment of something that was legal when it was done or 2. increasing the penalty under the law for criminal conduct that has already occurred. The penalty that applied at the time of the crime must be applied. |
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Term
ConLaw Question 142
New York passes a law that imposes a civil fine on anyone keeping a tiger in their apartment. Tiger-owner Safia wants to challenge it as an ex post facto law. Can she? |
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Definition
ConLaw Answer 142
The ex post facto clause does not apply in civil cases. Retroactive civil liability only need meet a rational basis test. In contract disputes. NEVER pick "ex post facto" as an answer if the question is about contracts. |
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Term
ConLaw Question 143
What is a bill of attainder? |
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Definition
ConLaw Answer 143
A bill of attainder is not an ex post facto law. It is a law that directs the punishment of a specific person or persons without a trial.) |
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Term
ConLaw Question 144
What standard of review for privacy issues? |
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Definition
ConLaw Answer 144
Things involving privacy all get strict scrutiny (government must show measures are necessary (i.e. least restrictive means) to achieve a compelling state interest), except abortion. Abortion has a unique standard. |
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Term
ConLaw Question 145
State passes a law requiring couples to attend counseling and get approval before getting married. Unconstitutional? |
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Definition
ConLaw Answer 145
Yes, because it bears upon the privacy right to marry. Law requiring a counselor's approval struck down under strict scrutiny. |
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Term
ConLaw Question 146
State passes a law authorizing the sterilization of the severely retarded. Unconstitutional? |
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Definition
ConLaw Answer 146
Yes, because it bears upon the privacy right to procreate. Laws authorizing sterilization struck down under strict scrutiny. |
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Term
ConLaw Question 147
State passes a law creating an irrebuttable presumption that the mother's husband is a child's father. Unconstitutional? |
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Definition
ConLaw Answer 147
No. Although this bears upon the privacy right to custody of one's children, it passes strict scrutiny analysis. If real dad is not the husband, he will not get custody.
Also, the state can act to remove kids from abusive home. |
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Term
ConLaw Question 148
State passes a law that limits the residency of publicly subsidized single dwelling homes to six people. Unconstitutional? |
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Definition
ConLaw Answer 148
Yes. This bears on the privacy right to keep the family together. This means extended family, not just parents and kids, but also at least grandparents. Have to be related, can't just be friends. |
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Term
ConLaw Question 149
State passes a law granting grandparents the right to monthly visits with their grandchildren. Unconstitutional? |
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Definition
ConLaw Answer 149
Yes. This bears upon the right to control the upbringing of one's children. Can send kids to a parochial school (of course, due to separation of church and state, don't expect government aid. In the end the government will neither assist nor prevent parochial school attendance). Can't force parents to let grandparents visit children. Amish get to raise kids in Amish tradition. |
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Term
ConLaw Question 150
State passes a law restricting the sale of condoms to unmarried persons. Unconstitutional? |
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Definition
ConLaw Answer 150
Yes. This bears on the right to purchase and use contraceptives. You have a constitutional right to buy condoms. Laws restricting that right will be subject to strict scrutiny review. |
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Term
ConLaw Question 151
Is strict scrutiny used for abortion regulations? |
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Definition
ConLaw Answer 151
No.
(1)Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. The test is "undue burden" which is not a clear standard.
(2) After viability, states may prohibit abortions unless necessary to protect the woman's life or health. |
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Term
ConLaw Question 152
State passes a law mandating that abortions are performed by licensed physicians. Unconstitutional? |
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Definition
ConLaw Answer 152
No. A requirement that abortions be performed by licensed physicians is not an undue burden. |
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Term
ConLaw Question 153
State passes a law outlawing "partial birth abortion" in all cases. Unconstitutional? |
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Definition
ConLaw Answer 153
Yes. The prohibition of "partial birth abortions" is an impermissible undue burden. There must be an exemption to the ban to protect the life and health of the mother. Partial birth also happens to be the safest means to abort in some cases, but that does not appear to matter. A partial birth abortion is when labor is induced and the baby aborted while partially outside the uterus. It does not mean aborting a child during delivery. |
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Term
ConLaw Question 154
The government refuses to give Mercy Public Hospital money to cover its abortion expenses. Unconstitutional? |
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Definition
ConLaw Answer 154
No. The government has no duty to subsidize abortions or provide abortions in public hospitals. This is well settled law and so might be on the exam. |
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Term
ConLaw Question 155
State passes a law requiring notification of the husband before a doctor can perform an abortion on a married woman where paternity is not in dispute. Unconstitutional? |
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Definition
ConLaw Answer 155
Yes, as an undue burden. Spousal consent and notification laws are unconstitutional. Dad gets no "veto" |
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Term
ConLaw Question 156
State law requires parental notice for an unmarried minor's abortion. Unconstitutional? |
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Definition
ConLaw Answer 156
Yes. A state may require parental notice and/or consent for an unmarried minor's abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor's best interests or that she is mature enough to decide for herself. |
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Term
ConLaw Question 157
State law bans homosexual acts in public housing. Unconstitutional? |
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Definition
ConLaw Answer 157
Yes. The right to privacy protects a right to engage in private consensual homosexual activity. Unclear what standard of review. |
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Term
ConLaw Question 158
State law bans the right to refuse life-saving medical treatment. Unconstitutional? |
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Definition
ConLaw Answer 158
Yes. (1) Competent adults have the right to refuse medical treatment, even life-saving medical treatment. Unclear what standard of review.
(2) A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.
(3) A state may prevent family members from terminating treatment for another. Intent of the person being treated is what matters, not the intent of their family |
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Term
ConLaw Question 159
Does the right to privacy include the right to physician assisted suicide? |
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Definition
ConLaw Answer 159
No. There is not a constitutional right to physician - assisted suicide. |
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Term
ConLaw Question 160
Where does equal protection come from for federal, state, and local governments? |
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Definition
ConLaw Answer 160
The equal protection clause of the 14th Amendment applies only to state and local governments. Never applies to the feds. Equal protection is applied to the federal government through the due process clause of the 5th Amendment. Supreme court says the Due Process of 5th amendment requires Equal Protection. |
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Term
ConLaw Question 161
A state law including biracial information on drivers licenses is challenged. What is the standard of review? |
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Definition
ConLaw Answer 161
For classifications of race and national origin, strict scrutiny is used. |
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Term
ConLaw Question 162
Same written exam applied to all candidates for the state police, but blacks fail much more often. Unconstitutional? |
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Definition
ConLaw Answer 162
No. If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent. No discriminatory intent so not a racial classification. |
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Term
ConLaw Question 163
Can a plaintiff use it's peremptory challenges to exclude jurors on the basis of race? |
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Definition
ConLaw Answer 163
No. discriminatory use of peremptory challenges of jurors by either the plaintiff or the defendant based on race denies equal protection. |
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Term
ConLaw Question 164
Alabama law establishes a promotion quota for blacks in the Alabama state police, based on its long standing discrimination against blacks. Unconstitutional? |
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Definition
ConLaw Answer 164
No. Racial classifications benefiting minorities, including Numerical set-asides, require clear proof of past discrimination. Court does not like these, but the Alabama law is valid. |
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Term
ConLaw Question 165
May educational institutions may use race as one factor in admissions decisions to help minorities? |
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Definition
ConLaw Answer 165
Yes. May, not must. State has a compelling state interest in "diverse" student bodies. Schools cannot have a set aside (quota). Nor can race be the obviously decisive factor in admissions (e.g. worth more points in an admission index than anything else). |
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Term
ConLaw Question 166
Where seniority systems are in conflict with affirmative action plans, which wins? |
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Definition
ConLaw Answer 166
Seniority systems may not be disrupted for affirmative action. See this during layoffs;newest hires are often the first to be fired. |
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Term
ConLaw Question 167
What is the standard of review for gender classifications? |
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Definition
ConLaw Answer 167
Intermediate scrutiny is used. Need "exceedingly persuasive justification" for the gender discrimination. |
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Term
| ConLaw Question 168;;How is the existence of a gender classification proven? |
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Definition
ConLaw Answer 168
If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent. |
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Term
ConLaw Question 169
have to be 5'10" and 150 lbs to be fire fighter. Most women do not meet this. Gender classification? |
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Definition
ConLaw Answer 169
Maybe. If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent. Discriminatory impact is clear. But they have to show INTENT to discriminate against women in having these requirements. Otherwise, it is rational basis review. |
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Term
ConLaw Question 170
An old state law says men can't get alimony is based on the idea that they are always the ones in a marriage with income. Unconstitutional? |
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Definition
ConLaw Answer 170
Yes. Gender classifications benefiting women that are based on role stereotypes will not be allowed, because it perpetuates those stereotypes. Laws like this are struck down. |
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Term
ConLaw Question 171
Federal formula results in better social security benefits for women. Unconstitutional? |
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Definition
ConLaw Answer 171
Yes. Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed. These calculation differences by gender are okay since women historically had less opportunity to earn income and thus save for retirement. |
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Term
ConLaw Question 172
What standard of review is used for a law that says only US citizens could have civil service jobs? |
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Definition
ConLaw Answer 172
Strict scrutiny. For alienage issues, generally, strict scrutiny is used. Can't require US citizenship to get welfare benefits, practice law, join the civil service, or be a notary public. |
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Term
ConLaw Question 173
When is an alienage law subjected to rational basis review? |
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Definition
ConLaw Answer 173
Only a rational basis test is used for alienage classifications that concern self-government and the democratic process. Have to be a citizen to vote, serve on a jury, be a police officer, a probation officer, or a teacher (even a French teacher).;;Also, only a rational basis test is used for Congressional discrimination against aliens since they have a plenary power to regulate immigration. |
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Term
ConLaw Question 174
When is intermediate scrutiny used in an alienage case? |
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Definition
ConLaw Answer 174
It appears that intermediate scrutiny is used for discrimination against undocumented alien children. State can't charge a fee for them to attend school. No important, actual purpose for that action. |
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Term
ConLaw Question 175
State law says that a non-marital child can only inherit if paternity is established during the lifetime of the father. What level of review? |
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Definition
ConLaw Answer 175
Intermediate scrutiny is used, and upheld that law. Goal was preventing fraud. Can give benefit to some non-marital children and not others. Specifically, can require the children to prove relationship, those who can't will be treated differently. This is ok, because it prevents fraud in inheritance. |
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Term
ConLaw Question 176
What kinds of discrimination gets rational basis review? |
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Definition
ConLaw Answer 176
Age, disability, wealth, economic, sexual orientation. |
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Term
ConLaw Question 177
Is a government mandatory retirement age constitutional? |
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Definition
ConLaw Answer 177
Yes. Rational basis review. |
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Term
ConLaw Question 178
State initiative repealed all state laws protecting equal rights of gays. Standard of review? Constitutional? |
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Definition
ConLaw Answer 178
Rational basis for discrimination on the basis of sexual orientation. But even under rational basis a Colorado state constitutional amendment can't bar any special protections for gays under the law. |
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Term
ConLaw Question 179
State passes a law restricting the benefits of poor people moving into a state for the first two years of their residency. What level of review? |
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Definition
ConLaw Answer 179
Laws that prevent people from moving into a state must meet strict scrutiny. |
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Term
ConLaw Question 180
State law grants new residents the right to vote after six months of residency. Unconstitutional? |
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Definition
ConLaw Answer 180
Yes. Durational residency requirements must meet strict scrutiny. State can require no more than 50 days as a resident before granting right to vote, so they can check voter registration/ qualifications. |
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Term
ConLaw Question 181
Federal law forbids travel to Cuba. What level of review? |
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Definition
ConLaw Answer 181
Restrictions on foreign travel need meet only the rational basis test. No fundamental right to international travel. |
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Term
ConLaw Question 182
A law requires that you have children enrolled in school to vote for in a school board election. Unconstitutional? |
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Definition
ConLaw Answer 182
Yes. Laws that deny some citizens the right to vote must meet strict scrutiny. |
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Term
ConLaw Question 183
What about a poll tax? |
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Definition
ConLaw Answer 183
A poll tax (a fee to vote) is unconstitutional. Only exception is that can limit right to vote to property owners in a water district election, since they are the primary consumers of the water |
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Term
ConLaw Question 184
20,000 people in one area elect 4 members of city council and 60,000 others elect the other 4. Everyone agreed with this in the city charter. Unconstitutional? |
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Definition
ConLaw Answer 184
Yes. One-person/one-vote must be met for all state and local elections. Districts must be about equal in population. Voter approval does not justify deviation from one person one vote. |
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Term
ConLaw Question 185
City has at-large election for the three person city council. City is 2/3 white, 1/3 black. Unconstitutional? |
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Definition
ConLaw Answer 185
No. At large means all voters vote for candidates for all open seats, one vote per voter per seat. At-large elections are constitutional unless there is proof of a discriminatory purpose as well as discriminatory impact. |
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Term
ConLaw Question 186
City wants to draw the voting district lines to dramatically increase the possibility of Hispanic councilmembers. What standard of review? |
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Definition
ConLaw Answer 186
The use of race in drawing election district lines must meet strict scrutiny. Probably can't have a majority black district, but can have a majority Democrat district. |
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Term
ConLaw Question 187
The day after the elections, a whole bunch of votes remain uncounted because of ambiguity in the ballot markings. The election commission meets to decide how to handle it. Unconstitutional? |
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Definition
ConLaw Answer 187
Yes. Counting uncounted votes without pre-established standards in a presidential election violates equal protection. |
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Term
ConLaw Question 188
Is there a fundamental right to an education? |
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Definition
ConLaw Answer 188
No. There is no fundamental right to education, unlike for condoms. |
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Term
ConLaw Question 189
What standard of review is used for the two types of content-based restrictions? |
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Definition
ConLaw Answer 189
Content-based restrictions on speech generally must meet strict scrutiny. Two type of content based laws:
(1) subject matter restrictions (restrictions on the topic of speech, e.g. politics)
(2) viewpoint restrictions (restrictions on opinions within a topic of a speech, e.g. Kerry is too incompetent to be the President). |
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Term
ConLaw Question 190
City ordinance says no parades or demonstrations in Payne Park. What standard of review? |
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Definition
ConLaw Answer 190
Content-neutral laws burdening speech generally need only meet intermediate scrutiny. Here all speech, probably in a certain form, such as picketing, is banned. Note that picketing can express any viewpoint or subject. |
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Term
ConLaw Question 191
In a huge celebrity drunk driving case, a judge tries to "protect the right to a fair trial" with a gag order. Unconstitutional? |
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Definition
ConLaw Answer 191
Yes. Gag orders on the press intended to prevent prejudicial pre-trial publicity are unconstitutional. Court orders suppressing speech (such as a temporary restraining order or preliminary injunction) must meet strict scrutiny. But remember, Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it. |
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Term
ConLaw Question 192
When can the government require a license for speech? |
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Definition
ConLaw Answer 192
The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review of denied requests. |
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Term
ConLaw Question 193
Highly publicized crime. Judge, to protect D right to fair trial puts a gag order on the press to prevent pretrial reporting. Unconstitutional? |
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Definition
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Term
ConLaw Question 194
What is vagueness in speech restrictions? |
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Definition
ConLaw Answer 194
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed. Vague laws always deny Due Process and when they involve speech it is especially bad. |
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Term
ConLaw Question 195
City ordinance prohibits the sale of any book or magazine that "corrupt the morals of minors". Unconstitutional? |
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Definition
ConLaw Answer 195
Yes, for vagueness. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed. Example "books that corrupt morals" What are they? Pornography? The Communist Manifesto? Too vague. Vague laws always deny Due Process and when they involve speech it is especially bad. |
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Term
| ConLaw Question 196;;Ban live entertainment to force closure of strip clubs. Unconstitutional? |
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Definition
| ConLaw Answer 196;;Yes, for overbreadth? A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated. Problem is that this law also closes poetry readings. |
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Term
| ConLaw Question 197;;How do fighting words laws do? |
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Definition
| ConLaw Answer 197;;Fighting words laws are unconstitutionally vague and overbroad, but the words are not protected speech. |
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Term
| ConLaw Question 198;;A really mean guy, possibly a member of a race hate group, will say something really bad to a sympathetic party, like a paraplegic. Law against it. Unconstitutional? |
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Definition
| ConLaw Answer 198;;Yes, for vagueness and overbreadth. Fighting words laws are unconstitutionally vague and overbroad, but the words are not protected speech. |
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Term
| ConLaw Question 199;City passes a law banning flag-burning. Unconstitutional? |
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Definition
| ConLaw Answer 199;;Yes. Flag burning is constitutionally protected. The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message (i.e. stopping what is normally a crime) and if the impact on communication is no greater than necessary to achieve the government's purpose. |
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Term
| ConLaw Question 200;;City passes a law banning draft card burning. Unconstitutional?. |
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Definition
| ConLaw Answer 200;;Yes. Draft card burning is not protected. Government has important interest in emergency mobilization. The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message (i.e. stopping what is normally a crime) and if the impact on communication is no greater than necessary to achieve the government's purpose. |
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Term
| ConLaw Question 201;;City passes a law banning nude dancing. Unconstitutional? |
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Definition
| ConLaw Answer 201;;No. Nude dancing is not protected speech. The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message (i.e. stopping what is normally a crime) and if the impact on communication is no greater than necessary to achieve the government's purpose. |
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Term
| ConLaw Question 202;;City passes a law banning cross-burning. Unconstitutional? |
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Definition
| ConLaw Answer 202;;Yes. Burning a cross is protected speech unless proof of an intent to threaten or intimidate. So burn out in the woods and it's ok, burning in a black persons yard and it's not. The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message (i.e. stopping what is normally a crime) and if the impact on communication is no greater than necessary to achieve the government's purpose. |
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Term
| ConLaw Question 203;;Congress passes a law establishing electoral spending limits for candidates. Unconstitutional? |
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Definition
| ConLaw Answer 203;;Yes. Money contribution limits in political campaigns are constitutional, but expenditure limits are not. So might not be able to give as much as you want, but are free to give it to many groups so as to fit under the limits or spend as much as you want directly. The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message (i.e. stopping what is normally a crime) and if the impact on communication is no greater than necessary to achieve the government's purpose. |
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Term
| ConLaw Question 204;;State passes a law banning pen names for editorial writers. Unconstitutional? |
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Definition
| ConLaw Answer 204;;Yes. Anonymous speech is protected. The right no to speak includes the right not to reveal your identity. |
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Term
| ConLaw Question 205;;"Let's beat up X right now!" Protected by the first amendment? |
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Definition
| ConLaw Answer 205;;Not protected. Incitement of illegal activity. The government may punish speech if;(1) there is a substantial likelihood of imminent illegal activity and;(2) the speech is directed to causing imminent illegality. |
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Term
| ConLaw Question 206;;City bans public Obscenity and sexually-oriented speech. Unconstitutional? |
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Definition
| ConLaw Answer 206;;No, if it meets the test for Obscenity and sexually-oriented speech.;(1) The material must appeal to the prurient (means shameful or morbid) interest. This is a local standard.;(2) The material must be patently offensive under the law prohibiting obscenity, so that must be delineated in the law. The law could be state, county or local.;(3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value. Under a national, not local, standard. |
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Term
| ConLaw Question 207;;City passes a law banning sex shops within 100 yards of a school. Unconstitutional? |
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Definition
| ConLaw Answer 207;;No. The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters (on the test). |
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Term
| ConLaw Question 208;;Congress passes a law banning all interstate commerce in child pornography. Unconstitutional? |
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Definition
| ConLaw Answer 208;;Yes. Child pornography may be completely banned, even if not obscene. However, the state's interest is in the protection of children - to prevent the USE of children, so the porn must use children in the production, not computer images of children or adults who look like children. |
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Term
| ConLaw Question 209;;State law mandates one year in jail for possession of child pornography. Unconstituitonal? |
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Definition
| ConLaw Answer 209;;No. The government may not punish private possession of obscene materials;but the government may punish private possession of child pornography. Government has interest in drying up the market as a way to protect children. |
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Term
| ConLaw Question 210;;Can the government seize the assets of businesses convicted of violating obscenity laws? |
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Definition
| ConLaw Answer 210;;Yes. The government may seize the assets of businesses convicted of violating obscenity laws. Probably RICO. Store sells 7 pornographic items. Cops seize (and destroy?) $9 million in other assets. This was constitutional. |
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Term
| ConLaw Question 211;;CBS wants to broadcast a show called "Fuck the War." The FCC tells them they can't. Will CBS get first amendment protection? |
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Definition
| ConLaw Answer 211;;No. Profane and indecent speech is generally protected by the 1st Amendment. Jacket saying "fuck the draft" is constitutional. Exception: over the broadcast media, which means free broadcast ("free, over-the-air") media. Not cable or the internet. The broadcast media is uniquely intrusive into the home. |
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Term
| ConLaw Question 212;;In high school, Lemerson wore a denim jacket bedazzled with the message "Fuck the War". Is that speech constitutionally protected? |
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Definition
| ConLaw Answer 212;;No. Profane and indecent speech is generally protected by the 1st Amendment. Jacket saying "fuck the draft" is constitutional. Exception: in schools. Schools teach civilized discourse. |
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Term
| ConLaw Question 213;;State law bans false and deceptive advertisements for products. Unconstitutional? |
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Definition
| ConLaw Answer 213;;No. False and deceptive ads are not protected by the 1st Amendment. True commercial speech that inherently risks deception can be prohibited. |
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Term
| ConLaw Question 214;;State law says optometrists and opticians cannot practice under trade names, like "Four Eyes." Unconstitutional? |
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Definition
| ConLaw Answer 214;;No. The government may prevent professionals from advertising or practicing under a trade name. Not deceptive in itself, but the government is concerned that the name could be changed quickly to fool the public about who is doing the work. True commercial speech that inherently risks deception can be prohibited. |
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Term
| ConLaw Question 215;;State law bans attorney in-person solicitation of clients. Unconstitutional? |
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Definition
| ConLaw Answer 215;;The government may prohibit attorney, in-person solicitation of clients for profit. True commercial speech that inherently risks deception can be prohibited. |
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Term
| ConLaw Question 216;;State law bans accountant in-person solicitation of clients. Unconstitutional? |
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Definition
| ConLaw Answer 216;;Yes. The government may not prohibit accountants from in-person solicitation of clients for profit. True commercial speech that inherently risks deception can be prohibited. Advocates are to be distrusted but accountants just deal with facts and figures, not specific outcomes. |
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Term
| ConLaw Question 217;;State requirement: no solicitation for 30 days to protect the privacy of accident victims. Unconstitutional? |
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Definition
| ConLaw Answer 217;;No. Non-deceptive commercial speech can be regulated if intermediate scrutiny is met. Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative. So can ban all solicitations in dormitories rather than the less restrictive option of having the solicitors register. |
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Term
| ConLaw Question 218;;How can a public official make a defamation claim? |
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Definition
| ConLaw Answer 218;;If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation by proving falsity of the statement and actual malice. Actual malice means "speakers knows the statement is false OR the speaker acted with reckless disregard for the truth. Standard of proof is "clear and convincing evidence." |
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Term
| ConLaw Question 219;;How can a public figure make a defamation claim? |
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Definition
| ConLaw Answer 219;;If the plaintiff is a "public figure'" the plaintiff can recover for defamation by proving falsity of the statement and actual malice. Public figure means "someone who places themselves in the limelight." These people can rebut the defamation through the media. |
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Term
| ConLaw Question 220;;How can a private figure make a defamation claim on a matter of public concern? |
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Definition
| ConLaw Answer 220;;If the plaintiff is a "private figure" and the matter is of "public concern," (and thus the state has a legitimate interest) that state may allow the plaintiff to recover for defamation by proving falsity and negligence by the defendant. However, the plaintiff may recover presumed or punitive damages only by showing actual malice. For economic damages must show falsity and recklessness;this is the reasonable person standard. |
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Term
| ConLaw Question 221;;How can a private figure make a defamation claim on a matter of private concern? |
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Definition
| ConLaw Answer 221;;A defamation plaintiff may recover for defamation by proving falsity and negligence by the defendant. If the plaintiff is a "private figure" and the matter is not of "public concern," the plaintiff can recover presumed or punitive damages without showing actual malice. |
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Term
| ConLaw Question 222;;Based on the arrest record, reporter Oz truthfully writes that Ruth was arrested for drunk driving. Ruth sues for defamation. Who wins? |
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Definition
| ConLaw Answer 222;;Oz. The government may not create liability for the truthful reporting of information that was lawfully obtained from the government. Victim cannot sue the news media for revealing her name if the media got it from public documents - like an arrest record or court docket. |
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Term
| ConLaw Question 223;;Teachers' union officials on a private conversation, which was illegally intercepted and recorded. A tape gets to a radio talk show host, who broadcasts it. Officials sued for privacy. Who wins? |
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Definition
| ConLaw Answer 223;;The radio station. Liability is not allowed if the media broadcasts a tape of an illegally intercepted call if the media did not participate in the illegality and it involves a matter of public importance. If someone illegally records a cell phone conversation and gives it to the media, the media cannot be sued for invasion of privacy. |
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Term
| ConLaw Question 224;;Reporter Oz wants the name of the victim of Senator Bhatt's car crash. Can the government withhold that name? |
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Definition
| ConLaw Answer 224;;Yes. The government may limit its dissemination of information protect privacy. Government does not have to reveal a victim's name, or the accused's names. Also, the only "government meetings" that have to be open to the public criminal trials and pre-trial hearings. Congressional hearing don't have to be open. |
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Term
| ConLaw Question 225;;What is the standard of review for speech restrictions, and what are the exceptions? |
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Definition
| ConLaw Answer 225;;Generally, government restrictions based on the content of speech must meet strict scrutiny. Areas of exception: Incitement, Obscenity, Commercial Speech, Defamation, Privacy, |
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Term
| ConLaw Question 226;;Police officer reports wrongdoing by other officers, then gets disciplined. Unconstitutional under the first amendment? |
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Definition
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Term
| ConLaw Question 227;;What are public forums? |
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Definition
| ConLaw Answer 227;;Public forums are government properties that the government is required to make available for speech (e.g. sidewalks, parks). |
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Term
| ConLaw Question 228;;When do public forum restrictions get rational basis review? |
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Definition
| ConLaw Answer 228;;Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met. |
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Term
| ConLaw Question 229;;Local law says "No trucks using sound equipment in residential neighborhoods at night". Unconstitutional? |
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Definition
| ConLaw Answer 229;;No. Public forum regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication. Quiet neighborhoods are an important governmental interest. |
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Term
| ConLaw Question 230;;City ordinance requires use of city's sound engineers for public forum demonstrations. Unconstitutional? |
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Definition
| ConLaw Answer 230;;No. Government regulation of public forums need not use the least restrictive alternative. For example, to prevent noise pollution, the city can require use of city's sound engineers, though fines under a decibel limit ordnance would be less restrictive. |
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Term
| ConLaw Question 231;;City passes a law allowing the mayor to set the level of parade permit fees on a case-by-case basis. Unconstitutional? |
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Definition
| ConLaw Answer 231;;Yes. City officials cannot have discretion to set permit fees for public demonstrations. To much of a danger that the permit issuer's attitude toward the content or topic of the speech will determine the fee |
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Term
| ConLaw Question 232;;How do limited public forums differ from public forums? |
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Definition
| ConLaw Answer 232;;Limited/Designated public forums are subject to the same rules as public forums once they are opened, although they can be closed to speech if non-discriminatory. |
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Term
| ConLaw Question 233;;What kind of forum is a school facility opened to community groups? |
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Definition
| ConLaw Answer 233;;Limited public forums. |
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Term
| ConLaw Question 234;;How can the government regulate speech in a non-public forum? |
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Definition
| ConLaw Answer 234;;Non-public forums - government properties that the government constitutionally can and does close to speech. The government may regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral. Examples are military bases, areas outside prisons or jails, airports, sidewalks around post offices, and advertisement space on city buses (on buses can ban all political speech in those areas, since ban is content neutral). In airports bans on passing out literature may fail reasonable basis test, but probably prohibiting the solicitation of donations does pass the reasonable basis test |
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Term
| ConLaw Question 235;;Oz wants to give a soapbox speech at the Short Hills Mall. They tell him to get lost. First Amendement violation? |
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Definition
| ConLaw Answer 235;;No. There is no 1st Amendment right of access to private property for speech purposes. Shopping centers/malls. |
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Term
| ConLaw Question 236;;Are public areas of military bases public forums? |
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Definition
| ConLaw Answer 236;;No. Non-public forums - government properties that the government constitutionally can and does close to speech. The government may regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral. |
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Term
| ConLaw Question 237;;Are sidewalks around post offices public forums? |
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Definition
| ConLaw Answer 237;;No. Non-public forums - government properties that the government constitutionally can and does close to speech. The government may regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral. |
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Term
| ConLaw Question 238;;Are airports public forums? |
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Definition
| ConLaw Answer 238;;Non-public forums - government properties that the government constitutionally can and does close to speech. The government may regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral. |
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Term
| ConLaw Question 239;;Are prisons public forums? |
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Definition
| ConLaw Answer 239;;Non-public forums - government properties that the government constitutionally can and does close to speech. The government may regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral. |
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Term
| ConLaw Question 240;;Are advertisement spaces on city buses public forums? |
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Definition
| ConLaw Answer 240;;Non-public forums - government properties that the government constitutionally can and does close to speech. The government may regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral. |
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Term
| ConLaw Question 241;;When may the government punish membership in a group? |
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Definition
| ConLaw Answer 241;;Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person: (1) is actually affiliated with the group;(2) the person has knowledge of the group's illegal activity (3) the person intends to further those activities. |
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Term
| ConLaw Question 242;;Law compels NAMBLA to disclose its membership list. Unconstitutional? |
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Definition
| ConLaw Answer 242;;Probably. Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny. Think NAACP in the 1950s. |
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Term
| ConLaw Question 243;;The I Love Racism Club allows members of all races, but excludes miscegenists. State law prohibits anti-miscegenation policies in private clubs. Who wins? |
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Definition
| ConLaw Answer 243;;The I Love Racism Club. Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity. The state CAN make it illegal for private groups or clubs to discriminate. The compelling state interest is simply the prevention of discrimination. |
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Term
| ConLaw Question 244;;What is an intimate association? |
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Definition
| ConLaw Answer 244;;Intimate association means a small dinner party. Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity. Can't sue over not getting invited to a dinner party. |
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Term
| ConLaw Question 245;;What is an expressive activity? |
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Definition
| ConLaw Answer 245;;Express activity means if the reason for the group to exist is to discriminate then they can discriminate. Nazis can exclude jews, gays and non-Aryans since that is part of the nazi philosophy. The KKK can exclude blacks because their "message" is that Blacks should be excluded from America. Boy Scouts can exclude gays because part of their philosophy is a heterosexual lifestyle. Country clubs do not exist to discriminate and its not part of their message so they can't. Notice how this the factor of discrimination is often the suspect categories of race and national origin, which would get strict scrutiny if done by the government. |
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Term
| ConLaw Question 246;;A state bans use of a drug by everyone and your religion requires the use of the drug. Unconstitutional? |
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Definition
| ConLaw Answer 246;;No. The free exercise clause cannot be used to challenge a neutral law of general applicability. The law is neutral, which means "not designed to discriminate against your religion," and generally applicable to everyone in the state. If the law was motivated by discrimination against the religion or was not generally applicable then strict scrutiny would apply. |
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Term
| ConLaw Question 247;;Ruth quits work rather that work on the Sabbath. She otherwise qualifies for unemployment benefits, but state is denying them. Unconstitutional? |
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Definition
| ConLaw Answer 247;;Yes. The government may not deny benefits to individuals who quit their jobs for religious reasons. The state will not force you to choose between your work and your faith. |
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Term
| ConLaw Question 248;;When does a law establish a religion? |
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Definition
| ConLaw Answer 248;;The test of whether the law establishes a religion S.E.X.-;(1) There must be a secular purpose for the law;(2) The effect must be neither to advance nor inhibit religion;(3) There must not be excessive entanglement with religion. |
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Term
| ConLaw Question 249;;What is the "plastic reindeer test"? |
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Definition
| ConLaw Answer 249;;Can't symbolically endorse a religion or a particular religion. A Nativity scene is unconstitutional if put on state property, but if include other symbols from other religions and some with secular meaning, its ok. That makes it a holiday display, not a religious display. The "plastic reindeer test." |
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| ConLaw Question 250;;What is the standard of review for discrimination among religions? |
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| ConLaw Answer 250;;The government cannot discriminate against religious speech or among religions unless strict scrutiny is met. |
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| ConLaw Question 251;;What's the deal with religious activity in public schools? |
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| ConLaw Answer 251;;Government sponsored religious activity in public schools is unconstitutional. But religious student and community groups must have the same access to school facilities as non religious groups. Cannot pray in school under school's auspices, even if participation is voluntary. Clergy led prayer at graduation ceremony is unconstitutional. Student prayer at football games is not allowed. Silent prayer is not allowed. "Silent reflection" might be ok. Of course you can pray in school if you want, it just can't be sanctioned by the state. |
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| ConLaw Question 252;;New Jersey wants to pay all math teachers in the state a $10K annual bonus. The law applies to parochial schools. Unconstitutional? |
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| ConLaw Answer 252;;Yes. Can't pay teachers in parochial schools, even if they don't teach religious subjects because making sure they don't teach those subject would require monitoring that would entangle the state. There must not be excessive entanglement with religion. |
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| ConLaw Question 253;;A state law provides for all schools to be provided with wireless internet, and all parents to be able to get private school vouchers. Both laws apply to parochial schools. Unconstitutional? |
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Definition
| ConLaw Answer 253;;No. The government may give assistance to parochial schools, so long as it is not used for religious instruction (e.g computers). The government may provide parents with vouchers that they may use in parochial schools as long as the vouchers can be used at all private school, be they parochial or secular and even if there are very few secular private schools in the area. The parents are choosing how to spend the money, not the state so it is constitutional. |
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| ConLaw Question 254;;Student prayer before football game at public school. Unconstitutional? |
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Definition
| ConLaw Answer 254;;Yes, violates the establishment clause. |
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| ConLaw Question 255;;Lemertown Regional High School lets the Lemertown Equestrian Guild use the old softball field for its spring show jumping event. The Lemertown Pentacostal Church wants to use the same field for their fall revival event. Can they? |
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Definition
| ConLaw Answer 255;;Yes, in fact, they must be allowed to. If a public school is going to open its facilities to public groups, it can't exclude religious groups. |
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