CA Bar: MBE Con Law

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  1. What does it mean that the federal govenment is a government of limited powers?
    It means actions by entities of the federal govenment are vailid only if they are authorized by the Constitution.
  2. What two general types of federal courts are there?
    Federal courts include both Article III courts, those created by Congress pursuant to Art. III, Section 1, and Article I courts, those created by way of its other legislative powers.
  3. What are some of the characteristics of Art. III courts?
    Congress has plenary power over their original and appellate jurisdiction. However, Congress cannot change the subject matter, parties, or the "case or controversy" requirements provided in Art. III. Congress cannot require these court to provide advisory opinions or to preform nonjudicial functions. In addition, Article III judges posses life tenure and protection from salary decreases.
  4. What are some of the characteristics of Article I courts?
    Article I courts may be vested with administrative as well as judicial functions. Article I courts must be tied to a specific legislative power; i.e., US Tax court, US bankruptcy court, or the courts of Washington D.C.
  5. Can Congress take cases which have been traditionally assigned to Article III courts and begin assigning them to Article I courts?
    No, such would violate Art. III. Congress cannot therefore provide broad grants of jurisdiction to Article I courts.
  6. Artivle III federal courts are authorized by the Constitution to hear which types of claims?
    Article III courts are authorized to hear all "cases and controversies"

    1. Arising under the Constitution, laws, or treaties of the US;

    2. Of admiralty and maritime jurisdiction;

    3. In which the US is a party;

    4. Between two or more states;

    5. Between a state and citizens of a different state;

    6. Between citizens of different states;

    7. Between citizens of the same state claim land under grants of different states; and

    8. Between a state or citizens thereof and foreign states, citizens, or subjects.
  7. Where is the judiciary's power of judicial review over the other branches of government found in the Constitution?
    It is not explicitly in the Constitution; however, the SCOTUS established the courts power of judicial review in Marbury v. Madison (1803). The constitution is the law and it is within the perview of the judiciary to declare what the law is.
  8. Does the Separation of Powers doctrine prohibit the legislature from interfering with court's final judgments?
    Yes, the legislature may not for example pass laws declaring that cases previously dismissed while pending, as a result of court decisions, shall be reinstated. This violates the Separation of Powers doctrine.
  9. Does the federal judiciary have the power to review state acts?
    Yes, the judiciary has the power to review state acts because of the Supremacy Clause of Art. VI. Thus, judges of state courts must follow federal law, despite any law of the state.
  10. What kind of jurisdiction does the US Supreme Court have?
    • Original Jurisdiction:
    • The SCOTUS has original jurisdiction over "all cases affecting Ambassadors, other public ministers, and Consuls, and those in which the state shall be a party. Congress may not restrict nor enlarge the SCOTUS's original jurisdiction; however, it may give and has given (excepting those between states) concurrent jurisdiction to lower federal courts.

    • Appellate Jurisdiction:
    • In all other cases arising under the Constitution, Act of Congress, or treaty, the SCOTUS has appeallate jurisdiction as to Law and Fact. However, Congress has the power to make exceptions to and regulations for appeallate jurisdiction.
  11. How are cases appealed to the SCOTUS and must the Court hear all the cases?
    There are two way to invoke the Court's appeatlate jurisdiction; by writ of certiorari (discretionary) and by appeal (mandatory).

    Certoriari is available in cases which come from the highest court of the state and in which the constitutionality of a federal law or state law is called into question or if the case comes from the federal courts of appeals; however, four justices must agree to hear the case. Therefore, it is discretionary.

    Appeal, on the other hand, is available only when a decicion is made by a three judge federal district court panel that grants or denies injunctive relief. Appeal is mandatory.

    Congress has power to regulate and limit the SCOTUS's appeallate jurisdiction. Congress may eliminate certain avenues for Supreme Court appeallate review so long as it does not eliminate all of them. Congress may eliminate the SCOTUS's appeallate review of certain cases, but must permit jurisdiction to remain in some lower federal court. Congress's denial of all SCOTUS review would violate due process of law.
  12. What other than subject matter make a case justiciable in federal court?
    The case must involve an actual case or controversy:

    -It must not seek merely an advisory opinion or be collusive.

    -It must be ripe. That is, the P must have been harmed or faces a threat of harm.

    • -It must not be moot. That is, the case must be real and live at all stages of review, unless:
    • 1. the controversy is capable of repetition and yet evades review;
    • 2. the action is voluntarily stoped, but capable of being resumed; or
    • 3. the class representative's case has become moot and other member's cases are still viable.

    - And, P must have standing. That is, P must have suffered an actual specific injury (not neccessarily economic), caused by the government, and which would be remedied by a favorable decision. See also 3rd Party Standing and Organization's Standing.
  13. What are other
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CA Bar: MBE Con Law
2012-05-23 21:51:08

JULY 2012 CA bar exam flashcards
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