Bar Prep Con Law

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sfjohnson1010
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157564
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Bar Prep Con Law
Updated:
2012-06-25 18:43:18
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Con Law
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Bar Prep Con Law
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  1. Supreme Court has original juristiction in all cases:
    Affecting Ambassadors, other public Ministers and Consuls, and those in which a State is a party
  2. Two methods for Supreme Court appellate jurisdiction
    • Appeal(jurisdiction is mandatory)
    • Certiorari(jurisdiction within Courts discretion)
  3. Cases that may be heard by Certiorari
    • Cases from highest state courts
    • All cases from Federal courts of appeals
  4. Supreme Court jurisdiction in highest state court requirement
    • contistutionalility of federal statute/treaty or state statute
    • or
    • state statute allegedly violates federal law
  5. Supreme Court APPEAL(mandatory) jurisdiction
    only as to decisions made by three-judge federal district court panels granting or denying injunctive relief
  6. Ripeness requirement
    plaintiff must have been harmed or there is immediate threat of harm
  7. Mootness requirement
    real live controversy must exist at all stages of review
  8. Standing requirement
    Person must demonstrate a concrete stake in the outcome of the controversy
  9. Components of standing
    Injury, Causation and redressability
  10. Injury (standing)
    some specific injury must be alleged, more than merely theoretical injury
  11. Causation (standing)
    Causal connection between injury and conduct complained
  12. Redressability (standing)
    whether a favorable ruling would eliminate the harm
  13. Organization standing when injury to its members if it demonstrates:
    1. Injury in fact to members that gives those members right to sue on their own behalf

    2. members injury related to organizations purpose

    3. neither nature of claim nor relief requested requires participation of members
  14. Taxpayer has standing to challange appropriation/spending if he establishes challanged measure
    Enaacted under Congress's taxing and spending power and it exceeds some specific limitation on the power
  15. Supreme Court refuses jurisdiction from state court when
    it finds adequate and indepedent nonfederal grounds to support the state decision
  16. Political Questions
    Issues commited by Constitution to another branch or those inherently incapable of resolution and enforcement by judicial process
  17. Eleventh Amendment bars Federal Court from hearing private party or foreign governments calsims if when
    • 1. Actions against state governments for damages
    • 2. Actions against state governments for injunctive or declaratory relief where the state is named as a party
    • 3. Actions against state government officers when retroactive damages paid from state treasury or divest state of ownership of land and
    • 4. actions against state government officers for violating state law
  18. Taxing measure upheld when
    it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity
  19. Interstate Commerce
    Any activity, local or interstate, that either in itself or in combination with other activities has a substantial economic effect upon or effect on movement in interstate commerce
  20. Under Commerce Clause federal law must either
    • 1. Regulate channels of IC
    • 2. Regulate instrumentalities of IC and persons and things in IC
    • 3. Regulate activities having a substantial effect on IC
  21. Intrastate Commerce can be regulated by Feds if
    the activity is economic or commercial and the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce
  22. Navigable Waterways
    all navigable waterways, actual or potential, and to small tributaries that affect navigable waterways
  23. Non-Self Executing treaty
    Not supreme law of the land until Congress acts to effectuate it
  24. Self Executing Treaty
    Supreme LAw of the land upon senate ratification
  25. Decisions entitled to Full Faith and Credit
    • 1.Court rendering judgment must have had jurisdiction over the parties and the subject matter
    • 2. Judgment on the merits
    • 3. Judgment was Final
  26. Dormant Commerce State regulation
    Regulation does not discriminate against out of state to benefit local and the regulation is not unduly burdensome
  27. When is a discriminatory state/local law valid
    if it furthers an important noneconomic state interest and there are no reasonable alternatives available
  28. Market Participant exception
    Staes may prefer its own citizens when acting as a market participant
  29. Government Function commerce exceptino
    Supreme Court applies more lenient standard when law favors government action involving the preformance of a traditional government function
  30. When does interstate transortation begin
    cargo delivered to an interstate carrier or actually starts its interstate journey (prep doesnt count)
  31. Breaks in transit
    do not destroy interstate character of shipment
  32. Interstate transportation ends
    when it reaches its destination (subject to tax there)
  33. Rights incorporated by 14th
    All 1st amendment guarantees, 2nd amendment right to bear arms, 4th unreasonable search/seizure, some 5th no self incrimination and emininent domain comp., 6th, and 8th
  34. Rights not applicable to states (bill of rights)
    3rd, 5th grand jury, 7th jury trial in civil, 8th excessive fines
  35. Commerce power of Congress applies to any business
    open to interstate travelers or that uses products shipped in interstate commerce
  36. Legislation substantially impairing contracts valid if
    • 1. serves an important and legitimate public interest and
    • 2. reasonable and narowly tailored means of promoting that interest
  37. Ex Post Facto
    legislation retroactivly altering criminal law in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the puropse of punishing the same person for past activity
  38. Law is Criminal if
    its effect is so clearly punitive as to negate legislatures intention
  39. Statute retroactively alters Law in substantially prejudicial manner if it
    • Makes criminal an act that was innocent when done,
    • prescribes greater punishmant than prescribed when done,
    • reduces evidence requried to convict
  40. Bills of attainder
    legislative act inflicting punishment without a judicial trial upon individuals who are designated by name or in terms of past conduct
  41. Right to procedural due process
    only when the government ats to deprive an individual of life liberty or property
  42. Due process
    fair process/procedure, which requires at least an oportunity to present objections to proposed action to a fair, neutral decisionmaker
  43. Deprivation
    requires more than mere denial of certain remedies, only when the government affords no remedy or inadequate remedies may a deprivation of life liberty or property result
  44. Due process requires judge to recuse when
    He has actual bias, or when ther is merely a serious risk of actual bias
  45. deprivation of liberty when
    lose of significant freedom of action or is denied freedom provided by the constitution or statute
  46. Property requires
    legitimate claim or entitlement
  47. Substantive due process
    where a law limits the liberty of all persons to engage in some activity it is a due process ?
  48. Equal protection
    when the law treats a person or class of persons differently from others
  49. Strict Scrutiny Test
    Law upheald only if it is necessary to achieve a compelling or overriding government purpose

    Burden of Proof on Government
  50. Intermediate scrutiny
    Law upheld if it substantially related to an important government purpose

    Burden on Government
  51. Rational Basis
    Law upheld if it is rationally related to a legitimate government interest

    presumed valid
  52. Fundamental rights
    • 1. Privacy
    • 2. Vote
    • 3. Interstate Travel
    • 4. First Amendment Rights
  53. Included in Fundament Right to Privacy
    • 1. Marriage and Divorce
    • 2. Contraception
    • 3. Abortion
    • 4. Obscenity in Home
    • 5. Familial Relationships
    • 6. Right to refuse Medical treatment
    • 7. Private consensual sexual activity
  54. Abortion prior to viability
    government may not impose an undue burden on a woman's choice to terminate pregnancy
  55. Abortion after viability
    State may choose to prohibit all abortions
  56. Right to travel
    • 1. right to leave and enter another state and
    • 2. right to be treated equally if they become permanent residents of that state
  57. Content based regulation of speech
    government must show that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end
  58. Unprotected speech
    • 1. clear and present danger of imminent lawless activity
    • 2. fighting words
    • 3. obscene
    • 4. defamation
    • 5. false or deceptive advertising
  59. Speech regulations regulating conduct
    narrowly tailored to achieve an important government interest
  60. To be valid government regulations of sppeech and assembly in public forums it must be
    content neutral, narrowly tailored to serve an important government interest and leave open alternative channels of communication
  61. Sample important interests
    traffic safety, orderly crowd movement, personal privacy, noise control, litter control and aesthetics
  62. Clear and present danger of imminent lawlessness
    • 1. directed to producing or inciting imminent lawless action
    • 2. likely to produce or incite such action
  63. Fighting words
    true threats, words likely to incite physical retaliation
  64. True threats
    statements meant to communicate an intent to place an individual or group in fear of bodily harm
  65. Obscenity
    description or depiction of sexual conduct that, taken as a whole, by the average person, apllying contemporary comunity standards appeals to the prurient interest in sex, portrays sex in a patently offensive way and has no serious literary, artistic, political or scientific value
  66. Malice(defamation)
    Knowledge that statement was false or reckless disregard
  67. Lemon test
    • 1. action has a secular purpose
    • 2. primary effect that neither advances nor inhibits religion and
    • 3. does not produce excessive government entanglement
  68. If there is a sect preference for some religious sects test is
    must be narrowly tailored to promote a compelling interest
  69. Deprivationof liberty occurs if a person
    • loses significant freedom of action, or
    • is denied a freedom provided by the Constitution or a statute 
  70. 3rd amendment
    prohibits forced quartering of soldiers outside of wartime
  71. 4th
    prohibits unreasonable search and siezures and gives requirements for search warrants
  72. 5th
    grand jury, eminent domain, due process, prohibits self incrimination and double jeopardy 
  73. 6th
    fair speady public trial by jury, confront accuser, retain counsel
  74. 7th
    trial by jury in civil cases over $20
  75. 8th
    prohibits excessive fines, bails and cruel and unusual punishment
  76. 9th
    protects rights not enumerated in Constitution
  77. 10th
    limits powers of federal government to those delegated to it by the constitution
  78. 11th
    immunity of states from suits of citizens and foreigners
  79. 12th
    revises presidential election procedures
  80. 13th
    abolishes slavery and involuntary servitude
  81. 14th
    defines citenship, privileges and immunities claus, due process and equal protection clause
  82. 15th
    prohibits suffrage based on race, color or previous condition of servitude
  83. 16th
    INCOME TAX
  84. 17th
    Direct election of Senators by popular voth
  85. 19th
    womens suffrage
  86. 20th
    fixes lame duck presidency
  87. 22nd
    limits president to 10 yrs
  88. 23rd
    gives dc representation in electoral college
  89. 24th
    eliminates poll taxes
  90. 25th
    defines process of presidential succession
  91. 26th
    18 yr old to vote
  92. 27th
    congress cant give itself a raise
  93. Courts consideration of fair notice for possible magnitude of punitive damages is
    • Reprehensibility of the defendants conduct
    • disparity between the actual or potential harm suffered 
    • difference between punitives and criminal/civil penalties 

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