Term
| What is procedural due process? |
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Definition
| It refers to the procedure the government (5th, federal, 14th, state) must provide citizens before depriving them of life, liberty or property. |
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Term
| Can harm to reputation, by the government, be considered loss of liberty? |
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Definition
| No. Would need something more than just harm to the reputation. |
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Term
| When does a deprivation of lierty occur? |
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Definition
| When ther eis a loss of a significant freedom provided for by the Constitution or statute. |
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Term
| If a child is admitted, by his parents, to an institution what process is due to that child? |
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Definition
| There must be review by a netral fact-finder. |
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Term
| If an adult is sought to be admitted to an institution, what process is due to adult? |
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Definition
| There must be notice and a hearing provided tha tit is not an emergency situation. |
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Term
| When does a deprivation of property occur? |
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Definition
| There is a deprivation of property where there is entitlement to that property and tha tentitlement is not fulfilled. |
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Term
| In discussing property interests, what distinction are no longer important under the law, and wha tis the new term? |
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Definition
| priviledge/right distinction, now we only ask was there an entitlement. |
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Term
| What is an entitlement in the context of property? |
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Definition
| Entitlement is a person;s reaonable expectation of a continued receipt of benefit. |
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Term
| If a government worker is pronised employment for one year and is fired after 1 month was there a deprivation of property? |
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Definition
| Yes. There is a deprivation of prperty here becuse the government promised the employee a job for a year. Therefore, there was a reaosnable expectation of a continued benefit, a property right in that employment. |
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Term
| Can there be a deprivation of de process f the government is negligent? |
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Definition
| No, generally there must be an intent to deprve dur proocess, or at the least wrecklessness. |
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Term
| Is it a violation of due process for the government to fail to protect a citizen from a private harm? |
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Definition
| No. Generally, the government is only liable for not protecting a citizen when the government itself creates the dangr or if the person was in the physical custody of the government then a duty to protect exists. |
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Term
| What test is employed to determine what procedures are required before the government my deprive l,l,p? |
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Definition
| The importnce of the right to the individual, v. Whether additional procedures will increase the accuracy of fact-finding v. the government's interest in administrative efficiency. |
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Term
What type of procedure is required for the following?
1. Welfare benefits terminated?
2. SS disibility benefits terminated?
3. Student suspended? |
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Definition
1. Before termination of welfare rights must be notice and a hearing.
2. Termination of SS disability benefits there must be post-termination hearing.
3. Child guardian/parent notice of the charges and an opportunity to explain before suspension (no trial -like procedure rq'd). |
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Term
How much procedure is required before the government terminates the following?
1. Parent's right over their child terminated?
2. Award of punitive damages?
3. American citizen detained as an enemy combatant? |
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Definition
1. there must be notice and a hearing before termination of parental rights.
2. There must be jury instructions given my the court and the court must review the punitive damage award to assess it reasonableness to D.
3. Due process required. |
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Term
How much process is due before the following situations may occur?
1. Gov't seizes assets or attaches property to satisfy or as collateral for the satisfaction of a judgment. |
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Definition
| If exigent cirumstances do not exist, seizure or attachment should be preceeded by notice and hearing. |
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Term
| Under what circumstance may an wner of joint property lose due process to that property? |
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Definition
| When the property was used in the furtherance of a crime. |
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Term
| When asking whether there is substantive due process, what are we actually asking? |
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Definition
| Asking whether the government had a adequate reason for taking a citizens, l, l or p. |
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Term
| What level of scrutiny is used when the court evaluates laws that affect economic rights? |
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Definition
| They apply the rational basis standard, whcih means tha the law is only unconstitutional if the P can show that the law is not rationally relted to some legitimate governmental interest. In response the government only has to show tha tthere s some governmental interest and not that it ws actually the law legislators intent at the time of the making of the law. |
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Term
| What is the takings clause and what does it say? |
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Definition
| The Takings Clause is provision in the United States constitution that says that the government may only take a citizen's property if they provide that citizen with just compensation. The taking of that property from the prvate owner must be used for a public purpose, however. |
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Term
| What are the two types of takings? |
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Definition
| There is a possessory taking and a regulatory taking. |
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Term
| What is a possessory taking? |
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Definition
| A possessory taking is when the government either confiscats the property from the citizen or occupies it, rendering a taking that is entitled o just compensation. |
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Term
| What is a regulatory taking? |
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Definition
| A regulatory taking occurs when a regulation results in a citizen's property no longer has a economically viable use. The fact that someone's land may decreas in value, however, is not consdered a taking. |
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Term
| What are some topics of economic laws that will only be adjudged by a rational basis standard? |
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Definition
| minimum wage laws, regulation of trades or professions. |
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Term
| If the government's conditon on the development of property does not result in benefits that are at least roughly equal or outweigh the detriment to the property owner, is this considered a taking? |
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Definition
| Yes. If the government places conditions on the devlpment of proprty, the benfit the government gets from that considtion must outweigh the detriment the property owner experiences. |
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Term
| If a property owner is aware of a condition on a piece of land tha the intends to purchae, after purchase may the landowner now chllenge the condition or regulation on the land even though he was cognizant of the restriction pror to teh purchase? |
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Definition
| He has standing to challenge the regulation, irrepsective of his awareness of the incumbrance on the land's development. |
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Term
| When is a temporary government restriction on the use of property justified? |
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Definition
| When the reason for the restriction is reasonable. |
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Term
| For there to be a legitimate taking the government must ensure that the taking was for public use. What does it mean for a property be taken for public use? |
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Definition
| Taking for public use does not necessarily mean that there will be actual public use. The USSC has defined public use broadly meaning tha tthe tking will result not necessarily in public use of the property, but a public benefit will result from the taking of private property. |
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Term
| If there is a taking what mus the government pay to satisfy just compensation? |
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Definition
| The government must pay market value for the property.... irrespective of the gain of the taker or government. |
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Term
| What does the Contracts Clause of the Constitution provide? |
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Definition
| It provides tha tno state will impair the oblgations of Ks. |
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Term
| Does the contracts Clause of the US Const. apply to the federal government? |
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Definition
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Term
| Wha tis the scope fo the Contracts Clause, meaning to which contracts does the clause apply to? |
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Definition
| It applies to government interference in the obligations relating to existing contracts, it does nto prevent the government from regulating future contracts. |
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Term
| When may a state interfere with an exisitng K? |
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Definition
| The State must show that the interferenece is reasonable and narrowly tailored to promote an important and legitimate government purpose. |
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Term
| When does the ex post facto clause apply? |
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Definition
| Th eEPFC only applies to criminal laibility. A state may not retroactively impose criminal liability or increase punishment for conduct tha thas transpired. In contrast, ex post facto clause does not apply to civil liability and an ex post facto law will be ahered to if it meets the rational basis test. |
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Term
| Since the early 1900s we have recognized the notion of substantive due process and have said that privacy emanates from the liberty under the constitution. Since then what other fundamental rights flow from the fundamental right of privacy? |
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Definition
1. The right to marry
2. The right to procreate
4. The right to buy/use contraceptives.
6. The right to an abortion.
7. The right to keep family together.
8. the right to custody of one's children.
9. The right to control the upbringing of children. |
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Term
| What does the right to abortion entale? |
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Definition
Strict scrutiny analysis does not apply to laws regaring abortion. Strict scrutiny has been supplanted with the undue burden test.
Prior to viability, the state cannot impose any undeu burdens on a woman's right to an abortion. Viability menas when the fetus can sustain life outside of the womb. After viability, a state may prohibit abortion provided tha tthere is n exception when the birth of the child would be hazardous to the mother's health of life. |
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Term
| What are some examples of laws that have been upheld that regulate abortion before viability (not undue burden)? |
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Definition
The following laws have been upheld:
A requirmeent tha ta woman waits 24-hours before the procedure occurs. A requirmeent that a certified physician perform abortons is not considered an undue burden. The prohibition againt partial birth abortions was upheld as not being an undue burden. |
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Term
| do states have the duty to subsidize abortions or to provide abortions in public hospitals to prevent there being an undue burden on a woman's access to an abortion. |
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Definition
| A state is NEVER required to subsdize abortions or to provide them in hospitals. |
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Term
| What is an example of undue burden on a womn's right to access an abortion: meaning the following regulations are unconstitutional. |
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Definition
| 1. Requiring spousal consent or notification. |
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Term
| May a state require that a parent or guardian of an unmarried minor be notified and or provide consent before an abortion? |
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Definition
| Yes, if the state provides a the monor with an lternative process to receive an abortion. The process generally must be judicial approval. The judge may approve the abortion by deciding tha tit is in the minor's best interest OR the monor is mature enough to decide the issue herself. If a minor canonly get an abortion by having parents notified and or requiring consent of parents the law is unconstitutional. |
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Term
| Does the right to provace extend to the right for gays to engage in homosexual sex? |
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Definition
| Yes. It is unconstitutional to criminalize homosexual sex. Such a law violates one's liberty/privacy....the level of scrutiny here is not apprent. The right to gay sex has never been exalted to a fundamental right. |
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Term
Is there a right for a competent adult to refuse life-saving medical treatment?
What restrictions are placed on this right? |
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Definition
Yes.
If a person is not coherent, the state may require clear and convicing evidence tha the person wanted for medical treatment to end.
A state may prevent family memebers from deciding to end medical treatment. |
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Term
| Is there a privacy right to physician assited suicide? |
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Definition
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Term
| How should I approach equal protection questions? |
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Definition
1. What is the classification?
2. Based on the classification, or who is being clssified need to ask what level of scrutiny should be applied
3. Determine whether the clssification is constitutional. |
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Term
| Does the equal protection clause apply to privae conduct? |
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Definition
| No. The equal proteciton clause only applies to government conduct. |
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Term
| In the Constitution, where does it say tha the federal government must provide equal protection of the law? |
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Definition
| No where. The USSC has declared tha tthe 5th Amendment requires the federal government to provide equal protection to its citizens. |
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Term
| What classifications require the application of strict scrutiny? |
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Definition
| Classification involving national origins, race, alienage generally speaking, voting, and right to interstate travel (not international travel). |
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Term
| How do you prove the existence of a racial classification? |
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Definition
| P must show that the law facially discriminates between races or if the law is facilly neutral that there is an disparate impact on a race and tha tthe intent of the law was to discriminate against that race. |
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Term
| Does the discriminatory use of peremptory challenges violate EP? |
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Definition
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Term
| How should racial classifictions that benefit mnorities be treated? |
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Definition
| Laws that classify on the basis of race, irrespective of their purpose (invidious or benign) are ajudged under a strict scrutiny test. Meaning tha tthe law is only upheld if it is necessry to meet a compelling governmental interest and tha tthe law is the least intrusive way, meaning narrowly tailore, to meet the objective. |
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Term
| Are racial numerical set-asides ever permissible? |
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Definition
| They may be if the government is able to point to past discrimination and tha tsuch set-asides are the only remedy to the past discrimination. The USSC is hostile to set quotas. |
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Term
| May educational instituions use race asa factor in its admission process? If so, why? |
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Definition
| Educational facilities may use race as ONE factor. Race should be one factor that is part of a wholistic evaluation of each student. No specific formulas or set-asides are ermissible in admissions though. The government has a compelling interest in promoting diversity in education. |
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Term
| May seniorty systems be disrupted on affirmative action grounds? |
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Definition
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Term
| Laws that pertain to gender are adjudged under what standard? |
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Definition
| intermediate scrutiny. Additionally the court may ask for exceeding persusive justification for gender classifications in the law. |
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Term
| How is an impersmissible gender classification in the law proven? |
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Definition
| face of the law or by showing disparate impact and discriminatory intent. |
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Term
| A city ordinance says that police offcers mut be 5'7" and at least 145 lbs.Is this ordinace an unconstitutional classification of gender? |
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Definition
1. facially neutral, says nothing about gender.
2. Disparate impact? lets say in that city's popultion, 55% of men would meet the height/restrictions, while only 5% of women could. Yes, disparate impact.
3. Discriminatory intent in terms of discrimination against women? Not shown.
The Court will review this ordinance under rational basis review. |
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Term
| Why will laws that seem to benefit women based on stereotypes not be permissible? |
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Definition
| Because they perpetuate inequities in society's thinking. Ex: Only alimony for women... no more. |
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Term
| Will gender classifications to remedy past discrimination and differences in opportunity permissible? |
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Definition
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Term
| Can a lw prohibit aliens from working a civil service job? |
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Definition
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Term
| Generally issues regarding alienage are adjudged by strict scrutiny, when are laws dealing with alienage ajudged by rational basis review? |
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Definition
| When the classification deals with self-government or democratic process. |
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Term
| In what areas may the government discriminate against aliens? |
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Definition
| voting, serving on juries and in certain professions such as police officers, probation officers and teachers, political office obviously. |
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Term
| When adjudging issues relating to children of aliens, what level of scrutiny s applied? |
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Definition
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Term
| When a law classifies non-marital versus marital children, what standards is generally applied to decide the constitutionality of the law? |
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Definition
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Term
| May a law confer a benefit on all marital, but not marital children? |
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Definition
| No, tha ti sunconstitutional. |
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Term
| Can an alien serve as a notary blic? |
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Definition
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Term
| Can there be a law that classifies among non-marital children when it relates to inheritancy? |
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Definition
| Yes. For example, a state may say that non-marital children who can prove their paternity may inherit, while others who cannot, cannot. |
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Term
| What standard of review is applied to the following categories: age discrimination. welath discrimination. disability discrimination, sexual orientation discrim? |
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Definition
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Term
| What are the fundamental rights protected under the EPC? |
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Definition
| 1. The right to travel and 2. The right to vote. |
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Term
| What issues are involved with the right to vote? |
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Definition
| Laws about durational requirements and laws that prevent people from moving into a state. |
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Term
| What test is applied to laws inhibiting international travel? |
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Definition
| rational basis review..... unlike the right to travel in the United States, there is no fundamental right to travel internationally. |
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Term
| What types of restirctions on voting are generally nconsttutional? |
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Definition
| literacy tests, poll tax, property ownership |
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Term
| Wha tis the one exception to the notion that voting should not be restricted? |
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Definition
| When riparian rights are involved. |
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Term
| In local and state elections, the general rule is one vote per person and that all districts should be roughly equal in terms of population. What are at large elections and how do they differ? |
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Definition
| At large electuions are elections where all voters can vote for all candidates. Therefore, if there are three candidates evey citizen in volved in the election has the right to cst up to three votes. |
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Term
| If race is a factor in drawing electorate districts, what standard of review should be applied to the law? |
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Definition
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Term
| Does counting uncounted votes in n election violate EP? |
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Definition
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Term
| Is there a fundamental right to education under the US constitution? |
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Definition
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Term
| What standard of review do courts apply to content-based restrictions on speech? |
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Definition
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Term
| What are the two types of content-based restrcitions on speech? |
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Definition
| subject matter restircitions and view point restrictions |
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Term
| subject matter restrictions on speech relate to _________ and view point restrictions on speech relate to _________. |
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Definition
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Term
| What standard of review is applied to content-neutral restrictions on speech? |
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Definition
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Term
| Court orders that supress speech must meet strict scrutiny. What happens if a person violates the court's order? |
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Definition
| Provided that the court's order is procedurally valid, a person may not violate a court's order regarding suppression of speech. the party may seek to vacate the order, but until then if the order is not complied with the court's ordered then the person who violated may not challenge it. |
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Term
| Are gag orders to prevent press from reporting information tha tmay be prejudicial to a case constitutional? |
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Definition
| this is unconstotutional when trying to protect the D. |
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Term
| When may the government construct a scheme requiring a license for speech? |
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Definition
| The government may require a license for speech when there is an important reason for the license and when there clear criteria given to the licensing authority to ensure there is no meaningful discretion in the furnishing of the licenses. |
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Term
| Wha ttypes of proceduaral safeguards must a government provide if they pursue a licensing scheme for speech? |
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Definition
| Prompt determination regarding the requests and availability of judicial review. |
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Term
| When is a law restricting speech considered vague? |
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Definition
| When a reasonable person cnnot discern between wht is permissible and impermissible speech. Where a statute is vague.... it is unconstitutional. |
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Term
| When are restrictions on speech considered unonstitutionally overbroad? |
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Definition
| When they restrict more speech then the objective behnd the lw seeks to limit. For example, lawmakers want to prohibit nude dancing in a city. As a solution they pass a law that prohibits all live entertainment that occurs after 7 p.m. This may prohibit the nude dancing, but it also restricts beningn forms of speech, plays... |
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Term
| Are laws that prohibit the use of fighting words unconstitutional? |
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Definition
| Yes they are unconstitutionally vague. Who knows what are fighting words? If fighting words are defined as words that are likely to incite hostility that is overbroad because it restricts so much speech. |
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Term
| Can symbolic speech via conduct be regulated? |
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Definition
| Yes. Government may regulate speech tha tis in the form of conduct f the regulation is important to achieve a governmental objective that does not intend to suppress the message of the conduct and the regulation is narrowly tailored. |
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Term
| Is there a first amendment right to speak anonymously? If so may the government restrict anonymous speech? |
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Definition
| There is a 1st A. right to speak anonymously. the government may retrict thsi right if it it law or regulation meets strict scrutiny standard. |
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Term
| Are limits on expenditures constitutional? |
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Definition
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Term
| What type of speech is not protected by the 1st or enjoys less protection? |
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Definition
1. Incitement of illegal activity
2. Obscenity and sexually oriented speech
3. Commercial speech
4. Defamation |
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Term
| When may the government punish speech? |
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Definition
| They may punish speech that if there is an imminent likelihood of illegal conduct and the speech will cause that illegal conduc tto occur. |
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Term
| What elements does the government need to restrict obscene or sexually oriented speech? |
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Definition
1. The material must appeal to the prurient interest (local test).
2. The material must be patently offensive under the law prohibiting obscenity (the law must exoress what is deemed obscene.
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value. (national standard). |
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Term
| May the government use zoning regulations to limit the amount and the location of adult bookstores and theaters? |
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Definition
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Term
Can child pornography be banned if it is not obscene?
Can pornography that uses computer-generated "children" be banned? |
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Definition
Yes. Any tyoe fo child pornography may be banned.
This pornography will not be considered child pornography because it must use actual children. |
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Term
| Can the government punish a private possession of obscene materials? Child pornography? |
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Definition
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Term
| May the government seise all the assets of a business that is convicted for violating an obscenity law, when there was only a few obscen materials among thousands of items? |
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Definition
| Yes. All assets may be seized. |
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Term
| When is incedent or profane speech not aloowed? |
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Definition
| Over broadcast media, which comes inthe home and may be accessed by children.... this doesn't apply to cable or internet, which a person voluntarily decides to purchase. Another exception is in schools profane and indecent language is not protected. |
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Term
| Are false or deceptive ads protected bythe 1st A? |
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Definition
| No. Theuy may be punished by the gov't. |
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Term
May true commercial speech be prohibited?
Why and what are some examples? |
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Definition
Yes, when it inherently creates a risk for deception.
the government may prevent professionals from practicing or advertisin under trade names. The rationale here is that a professional that is subject to malpractice claims could easily guise his identity under a trade name. |
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Term
| What types of commercial speech can be regulated is intermediate scrutiny is met? |
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Definition
| An example is a 30-day moratorium for wrongful death action in the context of attorney solicitation. |
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Term
| When the government construct regulations on commercial speech the regulation must be _______ ________, but does not have to be the __________ ______________ _________. |
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Definition
| narrowly tailores, least restrictive means. |
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Term
| If a public offical is running for office how may he or she prove defamation? |
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Definition
| 1. falsity of the statement and that the D was acting maliciously, knew what he was saying was false. |
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Term
| Is the standard for showing defamation the same for public figures as it is for public officials? |
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Definition
| Yes must prove falsity and actual malice. |
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Term
| If Mona Lisa defames a private figure regarding a public concern when may a private figure recover? |
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Definition
| May recover if they can prove falsity of the statement and at least negligence on the part of the D. In order for the P to get punitive damages must how actual malice. |
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Term
| If a provate figure suses for defamation that does not involve a public concern, may she revoer punitive damages? |
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Definition
| he may recover presumed and punitive damages without showing actual malice. |
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Term
| May the government create liability for the truthful reporting of information from the government? |
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Definition
| No. Provided that it was lawfully obtained, or if itwas illegally obtained, but the media had nothing to do with the illegality, and the nature of the material is of public importance. |
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Term
| May the government limit the dissemination of information to protect a privacy interest? |
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Definition
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Term
| What are examples of public forums that are generally made available to the public for speech? |
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Definition
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Term
| If government were to restrict speech at a public forum what must it do? |
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Definition
| Its regulation must be subject matter and viewpoint eutral, if not it has to meet strict scrutiny. The regulation also has to be a time place and manner regulation that also provides for alternative places for speech. |
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Term
| Can city officials set fees for public demonstrations? Why or wny not? |
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Definition
| No, because there is apossibility tha tthe government will charge more money for speech that it dislikes. |
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Term
| What is a limited public forum? |
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Definition
| A limited public forum is a forum tha thte government could close to speech, but voluntarily opens it up for speech. The rules for a public forum are applied here as well. |
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Term
| What are non-public forums? |
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Definition
| These are government properties that the government can and does close to public speech. |
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Term
| Are school public forums or limited public forums? |
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Definition
| limited, but once the governmenmt allows some speech then the same rules as public forums, in terms of restriction, apply. |
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Term
| Is there ever a first amendment right use private property for speech? |
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Definition
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Term
| What are examples of non-public forums? |
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Definition
military bases, grounds outside a prison, advertising space on city buses (no political ads)
sidewalks of post office grounds
airports (can disseminate lit though) |
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Term
| For non-public forums, what method of regulation is permissible and what does the goverment's interest have to be? |
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Definition
| The government's methods must be reasonable and they have to have a legitimate interest in regulating the speech... easier to regulate. |
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Term
| For public and limited forums, what method may be used to regulate speech and what does the government's interest have to be in the speech? |
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Definition
| They have to employ a time place and manner restriction on speech and the government's interest in regulating the speech must be important. |
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Term
| Laws that punish or prohibit group membership must meet strict scrutiny. What must the government prove to limit association? |
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Definition
| 1. P is affiliated with the group, 2. that P knows of the group's illegal activities, AND 3. P has the specific intent to further the illegal agenda of the group. |
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Term
| What level of scrutiny will be applie dto a law that requires disclosure of membership lists, and where such disclosure would chill association? |
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Definition
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Term
| Laws that prohibit a group from discriminating are generally permissible except when? |
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Definition
| When the purpose of the group is to be exclusionary: for example the KKK. |
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Term
| Wha ttype fo law can't a P challenge in asserting the Free Exercise Clause? |
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Definition
| A P may not use the Free Exercise Clause to contest a neutral law of general applicability. |
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Term
| Can a government deny benefits to a person who quits their job for religious reasons? |
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Definition
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Term
| What test is applied to see if the Establishment Clause has been violated? |
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Definition
| The Lemon Test, which is: 1. Is the law's purpose secular in nature? 2. Does the effect of the law may either hinder or advance religion? 3. Is there excessive entanglement between the government and religion? |
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Term
| May a law discriminate against religious speech? |
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Definition
| No, this would be considered content-based regulation. |
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Term
| No government sponsored programs for religion are allowe din pubic schools. Does the school have to provide access to religious groups? |
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Definition
| Yes, provided that other groups are permitted. You cannot exclude the bible club. |
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Term
| Is school prayer permissible? Is asking for a moment of silent prayer at school permissible? Pastor at graduation? |
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Definition
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Term
| Are government vpuchers tha tare used by parents to attend religious schools constitutional? |
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Definition
| Yes. Assistance to parochial schools is permissible too provided tha thte funds are not used for instruction. |
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