11. Con Law: Substantive DP and EP

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11. Con Law: Substantive DP and EP
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2012-03-31 19:41:58
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DP and EP
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  1. RELATIONSHIP BETWEEN SUBSTANTIAL DUE PROCESS AND EQUAL PROTECTION
    Substantive due process guarantees that laws will be reasonable and not arbitrary. Equal protection guarantees that similarly situated persons will be treated alike. Both guarantees require the Court to review the substance of the law rather than the procedures employed.

    Generally where a law limits the liberty of all persons to engage in some activity, it is a due process question.

    Where the law treats a person or class of perrsons differently from others, it is an equal protection question.

    Since both clauses protect against unfairness, both may be appropriate to the same gov'tal act, and discussion of both may be appropriate in an essay answer.
  2. WHAT STANDARD OF REVIEW APPLIES?
    STRICT SCRUTINY: when a suspect classification or fundamental right is involved. A law will be upheld only if it is necessary to achieve a compelling or overriding gov't purpose. The court will always consider whether less burdensome means for accomplishing the legislative goal are available. Most gov'tal action under this test fails. Gov't has the burden, law may be found over- or under-inclusive and thus fail.

    INTERMEDIATE SCRUTINY: when a classification based on gender or legitimacy is involved. A law will be upheld when it is substantially related to an important gov't purpose. Burden probably on gov't.

    RATIONAL BASIS: used when the other two standards are not applicable. A law will be upheld if it is rationally related to a legitimate gov't purpose. Most gov'tal action examined under this standard is upheld unless it is arbitrary or irrational. Laws are presumed valid, burden is on challenger.
  3. FUNDAMENTAL RIGHTS
    • Fundamental rights inlude:
    • -- right to travel;
    • -- privacy;
    • -- voting; and
    • -- all 1st amendment rights
    • -- right of family members to live together

    • The USSC has held that punitive damages do not necessarily violate due process. However, grossly excessive damages -- those that are unreasonably high to vindicate the state's interest in punishment -- are invalid. The key issue is whether the defendant had "fair notice of the possible magnitude" of the punitive damages. In assessing such notice, the court will consider
    • 1.) the reprehensibility of the defendant's conduct;
    • 2.) the disparity between the actual or potential harm suffered by the plaintiff and the punitive award; and
    • 3.) the difference between the punitive damages award and the criminal or civil penalties authorized for comparable misconduct.
    • RULE OF THUMB: punitive damages should not exceed ten times the compensatory damages.
  4. VAGUENESS DOCTRINE
    Under the DP clause of the 14th amendment, a law can be held unconstitutional if it fails to provide minimal guidelines to govern law enforcement officers so as to discourage arbitrary and discriminatory enforcement.
  5. IRREBUTTABLE PRESUMPTIONS
    If the presumption affects a fundamental right, or a suspect or quasi-suspect classification, it will likely be invalid under strict scrutiny or intermediate scrutiny analysis because the administrative convenience created by the presumption is not an important enough interest to justify the burden on the right or class.
  6. EQUAL PROTECTION:
    GENERAL PRINCIPLES
    Applies ONLY to the states, no federal counterpart. Grossly unreasonable discrimination by the federal gov't violates the DP clause of the 5th amendment. The same standards will apply to either clause.
  7. EQUAL PROTECTION:
    PROVING DISCRIMINATORY CLASSIFICATION
    A law may include a classification on its face. In a few cases, the USSC has found that a law used a racial classification on its face even though the language of the law did not include racial language. The Court found that these laws could not be explained except in racial terms.

    In some cases, a law that appears to be neutral on its face will be applied in a different manner to different classes of persons. If the persons challanging can prove that the gov't officials applying the law had a discriminatory purpose and used discriminatory standards such as race or gender, the law will be invalidated.

    Where the law is neither discriminatory on its face nor in application, it can still have a disproportionate impact on a particular class of persons. Such a law will be found to involve a classification only if a court finds that the law-making body enacted or maintained the law for a discriminatory purpose. Statistical evidence may be combined with other evidence of legislative or administrative intent to show that a law or regulation is the product of a discriminatory purpose.
  8. EQUAL PROTECTION:
    SUSPECT CLASSIFICATIONS --
    RACE AND NATIONAL ORIGEN --
    AFFIRMATIVE ACTION
    REMEDYING PAST DISCRIMINATION: The gov't has a compelling interest in remedying past discrimination. Thus, if a court finds that a gov'ta agency has engaged in racial discrimination, , it may employ a race-conscious remedy tailored to end the discrimination and eliminate its effects. This is permissible under EP because it is narrowly tailored to further a compelling interest. Even where there hasn't been past gov't discrimination the state may have an interest in affirmative action.

    Remedying past private discrimnation within the giv'tal agency's jurisdiction is a compelling interest, but there is no compelling interest in remedying the general effects of societal discrimination. To give preference to minority applicants, the gov't must identify the past unconstitutional or illegal discrimination that it is now attempting to correct.

    The USSC has held that it will defer to a university's good faith judgement that diversity is a compelling interest, but the court has also held that a college/university should consider each applicant as an individual and if race/ethnicity is a defining factor, the admission policy will not be narrowly tailored to achieving the compelling interest of ensuring a diverse student body.

    Private employers are not restricted by the EP clause, since it applies only to the gov't and private employers lack state action. However, congress has adopted statutes regulating private discrimination by employers pursuant to its power under the enabling provisions of the 13th and 14th amendments and the commerce clause. Thus, if an exam Q asks about private employer discrimination, the answer cannot be based on EP.
  9. EQUAL PROTECTION:
    SUSPECT CLASSIFICATIONS --
    RACE AND NATIONAL ORIGEN --
    ALIENAGE CLASSIFICATIONS
    FEDERAL: The standard of review for federal classifications based on alienage is not clear, but not strict scrutiny. Because of congress's plenary power over aliens, these classifications are valid if they are not arbitrary and unreasonable.

    STATE AND LOCAL: These laws are subject to strict scrutiny. A compelling state interest must be shown to justify disparate treatment. Exception -- if a law discriminates against alien participation in the functioning of the state gov't, the rational basis standard is applied.

    The USSC has not held that undocumented aliens are a suspect class.

    The Court has held that a state denied EP to undocumented alien children when it denied them state-supported primary and secondary education.
  10. EQUAL PROTECTION:
    QUASI-SUSPECT CLASSIFICATIONS
    Classifications based on gender or legitimacy are almost always suspect and the court will apply the intermediate standard, striking the action unless it is substantially related to an important gov't interest.

    GENDER: The USSC has expressly held that the gov't bears the burden of proof in gender discrimination cases and that an exceedingly persuasive justification is required in order to show that gender discrimination is substantially related to an important gov't interest.

    Gender classifications that intentionally discriminate will generally be invalid because the gov't is unable to show the exceedingly persuasive justification required.

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