Con Law

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johncburt
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191862
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Con Law
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2013-02-14 16:35:43
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Constitutional Law
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Con Law
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  1. Fed Court - Cases & Controversies -What 4 things if not satisfied will prevent you from being heard in Fed Court
    • 1. Standing
    • 2. Ripeness
    • 3. Mootness
    • 4. Political Question
  2. Fed Court - Cases & Controversies - To have standing you must have 2 things, and 2 things you cant have
    • 1. Injury - P injured or imminently will be
    • 2. Causation - P nust show D caused injury
    • 3. No 3rd Party Standing - Exceptions
    • 4. No generalized grievences - Cant sue merely as a citizen or taxpayer
  3. Fed Court - Cases & Controversies - Generally there is no 3rd Party Standing exceptions, what are the two exceptions:
    • Close relationship: between P and V - like Dr/Patient
    • Injured Party: unlikely able to assert her rights
    • Organization: May sue for members if members would have standing and its germane to the org's purpose
  4. Fed Court - Cases & Controversies - What two factors are necessary to hear a case that is not Ripe
    • Court may grant pre-enforcement review/declaratory judgment if:
    • a. Hardship will be suferred w/o review
    • b. Fitness of issues and a record enough for a review - Needs enough info
  5. Fed Court - Cases & Controversies - What is Mootness and what are the 3 exceptions
    • If P's injury has ended then is moot and case dismissed, except:
    • a. Wrong capable of repetition but evading review (Roe v. Wade)
    • b. Voluntary ceasation - D stops the harm but could start up again
    • c. Class Action: as long as 1 person still harmed
  6. Fed Court - Cases & Controversies - What 4 things are considerered Political Question and the court will not hear
    • a. "Republican form of Government"
    • b. Challenges to Presidents Foreign Policy
    • c. Challenges to impeachment
    • d. Challenges to Partisan gerrymandering - Party draws geographical lines for votes
  7. Fed Court - What 3 situations will the Supreme Court Review a case
    • 1. Writ of Cert: Nearly every case is heard at the courts discretion by Writ of Cert.
    • 2. 3 Judge Federal Panel - goes straight to Supreme Court, skips appeal's court
    • 3. Original jurisdiction between states suing each other
  8. Federal Courts - What is Sovereign Immunity
    • 11th Amend: Cannot sue a state in federal court
    • Cannot sue a State in State Court
  9. Federal Courts - What are the Exceptions to a states Sovereign Immunity (5)
    • 1. Waiver: State explicity allows itself to be sued
    • 2. Can sue for violations of 14th Amendment (discrimination)
    • 3. Fed Gov can sue State Gov
    • 4. Bankruptcy proceedings
    • 5. State officers can be sued, but not paid out of treasury
  10. Federal Courts - What two situations might the court exercise Abstention from hearing the case
    • 1. May not enjoin a pending state action
    • 2. Court has jurisdiction but can choose to abstain
  11. Federal Legislative Power - What constitutional clauses give Congress the Authority to Act (5)
    • Must be express or implied Congressional Power in Constitution
    • Necessary and Proper Clause
    • Taxing/Spending Power
    • 10th Amendment limits Congresses power by vesting in the states power
    • 14th Amendment - Can act only to prevent violations, not expand the scope
  12. Federal Legislative Power - Congress Authority to Act - Exceptions to Constitutional Power (4)
    • Raise a Military
    • Federal Land Regulation
    • Indian Reservations
    • Washington DC
  13. Federal Legislative Power - What can Congress do with the Commerce Power (3)
    • Regulate Channels of Interstate Commerce (highways, internet)
    • Regulate instrumentalities of interstate (trucks, trains)
    • Regulate Economic Activities that have a substantial effect on interstate commerce.
  14. Federal Legislative Power - When can/cant Congress deligate Power (3)
    • No limit on its ability to delegate its own power
    • Legislative vetos and line item vetos are unconstitutional (must allways pass the house and senate and presented to President)
    • Congress Cannot deligate Executive Power to its self
  15. Federal Executive Power - How are treatise made, what can pres do w/ executive agreements and troops
    • Treaties. Negotiated by Pres and ratified by Senate - Prevail over conflicting State laws - New Fed Statute will override prior Treaty
    • Executive Agreements. Between President and foreign country, can be for anything and no ratification - Prevail over State law but not Fed Statutes
    • Broad Discretion to use troops
  16. Federal Executive Power - Domestic Affairs - Who can the Pres appoint and who can Congress appoint
    • President appoints ambassadors, Fed Judges, and US Officers
    • Congress can vest appointment of inferior officers in president
    • Congress cannot give itself or its officers appointment power
  17. Federal Executive Power - Domestic Affairs - When can/cant Pres exercise Removal Power
    • President can fire any executive branch office
    • Limitation: Congress can limit (not prohibit)removal power where independence from the Pres is desirable, like the attorney general investigating the President
  18. Federal Executive Power - Who/how can be impeached
    • President, VP, judges, officers can be impeached for treason, bribery, high crimes and misdomeanors
    • House of Reperesentatives can impeach by majority
    • Removal Requires a 2/3 vote from the Senate
  19. Federalism - What is Federalism and the effect on state laws
    • Preemption: Article 6 provides the constitution, statutes and treaties are supreme law of the land.  They preempt conflicting state laws.
    • States cannot tax Federal Activities in the State
  20. Federalism - What effect does Dormant Commerce Clause have on states
    If a State regulates in a way that places an undue burden on commerce then it violates the Dormant Commerce Clause
  21. Federalism - What rights does the Privledges and Immunities clause afford people
    This is the main P&I clause. No state can deprive the citizens of another state of the same P&I it provides its own citizens
  22. Federalism - When does the Privledges and Immunities clause of 14th Amendment apply(rarely tested)
    Only applies unless it has to do with the right to travel
  23. Federalism - How/when do you analise the Dormant Commerce Clause and the Privledges and Immunities
    If the law discriminates against out-of-staters it might violate both the Dormant Commerce Clause and/or Privledges and Immunities
  24. Federalism - If a State law burdens commerces what standard of review determines if it is lawful burden
    If a state statute places an undue burden on commerce, then it must be "Necessary to Achieve an Important Government Purpose"
  25. Federalism - If a state law burdens the Privledges & Immunities Clause, what is the Standard of Review
    If a state statute discriminates against out-of-staters with regard to their ability to earn a livlihood, or civil liberties, then it must be "Necessary to Achieve an Important Government Purpose"
  26. Federalism - Who is protected from Dormant Commerce Violations and who is protected from Privledges and Immunities violations
    Privledges and Immunities: Only citizens, not Immigrants and Corporations.

    Dormant Commerce Clause: Citizens, Aliens, and Corporations
  27. Federalism - When can a State Tax Interstate Commerce (3 points)
    • 1. States may not use their tax system to help in-state business
    • 2. May only tax activities with a substantial nexus to the state
    • 3. State taxes of interstate business must be fairly apportioned to the amount of business in the state
  28. Federalism - What is required for sister states to exercise Full Faith and Credit of other states judgments (3 requirements)
    • Courts in one state must honor judgmentsof another if:
    • 1. Court rendering judgment had PJ and SMJ
    • 2. Judgments on its merits (even a default, but not SOL)
    • 3. Judgment is final
  29. Protection of Individual Liberties - In general Do constitutional restrictions apply to individuals actions
    The constitution does not apply to individuals, only state actions, thus generally discrimintation must be based on the states participation
  30. Protection of Individual Liberties - When can the Fed regulate private violations of the Constitution (2)
    Constitution cannot regulate individuals, but congress can enact statutes to regulate private conduct under:

    13th Amendment - (Slavery) used to create statutues that prohibit private discrimination

    Commerce Clause: When private discrimination has an effect on commerce, congress can enact statutes

    14th Amendment does not provide a basis to regulate private conduct
  31. Protection of Individual Liberties - When is the Government considered to have Entanglement with private people in regards to discrimination (3)
    • 1. Can't enforce Racial Restrictive Covenants
    • 2. Can't lease state property to discriminitory business
    • 3. Can't provide books to schools that discriminate
  32. Protection of Individual Liberties - When is the Government NOT considered to have Entanglement with private people in regards to discrimination (4)
    • No State Action When:
    • 1. Gov Funds of a private school that fired a teacher because of speech
    • 2.  NCAA fires a state college basketball coach
    • 2. Private entity regulates school sports
    • 3. When state gives a liquor license to a club that discriminates (Moose Lodge)
  33. Protection of Individual Liberties - Who Government does the Bill of Rights apply to
    Only applies to the Federal Government but is made applicable to states through the due process clause of the 14th amendment
  34. Protection of Individual Liberties - Under the Bill of Rights, through the 14th amendment,  What rights are the states not required to provide (4)
    • 1. Right to not have to shelter a soldier
    • 2. Right to a grand jury
    • 3. Right to jury in Civil Suits
    • 4. Right against excessive fines
  35. Protection of Individual Liberties - What are the 3 basic level of scrutiny
    • 1. Rational Basis Test
    • 2. Intermediate Scrutiny
    • 3. Strict Scrutiny
  36. Protection of Individual Liberties - How does the court apply the Rational Basis Test
    Rationally Related to a legitimate government purpose

    State wins, only needs to be some relationship to some government interest - Burden on P
  37. Protection of Individual Liberties - How does the court apply Intermediate Scrutiny
    Substantially Related to a Important Governement Interest

    Must be an important interest and must be narrowly tailored to fulfill a Substantial State interest.  Does not need to be the least restrictive means - but is difficult. Burden on Gov
  38. Protection of Individual Liberties - How does the court apply Strict Scrutiny
    Necessary to Achieve a Compelling Government Purpose - Least Restrictive

    Looser - State will loose
  39. Individual Rights - When is Procedural Due Process owed to individuals
    • Procedures the Gov. must follow whe it takes away:
    • 1. Life
    • 2. Liberty
    • 3. Property
  40. Individual Rights - What is Substantive Due as oppossed to Procedural Due Process
    This is not the proceedure to take the property but the reason and right?

    Does the goverrnment have an adequate right to take life, liberty, or Property
  41. Individual Rights - When does an Equal Protection issue arise
    The issue arises when the government treats some people different from others
  42. Individual Rights - Procedural Due Process - When does a Depravation of Liberty occur and what rights does a person have
    A depravation of liberty occurs when there is a loss of a significant freedom provided by the constitution or a statute.

    Must be a notice and hearing
  43. Individual Rights - Procedural Due Process - What is considered a Depravation of Property
    Occurs if there is an entitlement and that entitlement is not fulfilled. If there is a reasonable expectation to receive something.

    Notice and Hearing
  44. Individual Rights - Procedural Due Process - What rights do individuals have if Depravation of property was caused by Negligence
    Generally there must be an intentional or wreckless government action, not just negligence.
  45. Individual Rights - Procedural Due Process - When evaluating what due process proceedures are required, what is the Balance Test
    • Banlance Test:
    • 1. Importance of the Interest to the individual
    • 2. The Ability to provide additional procedures to increase the accuracy of the fact finding
    • 3. The Government interest - Efficiency
  46. Individual Rights - Procedural Due Process-What 3 situations entitle a person to PDP
    • When Depravation of Life or Liberty (significant freedom secured by constitution or statute)
    • When Depravation of Property (entitlement to a continued receipt of a benefit)
  47. Individual Rights - Economic Liberties - When laws effect a persons economic right (not depravation of property) what Scrutiny test is applied
    When the laws affect an economic right (not a significant freedom or right to entitlement) then only the Rational Basis Test Applies.

    Minimal protection: Minimum wage, professions, consumer protection
  48. Individual Rights - Economic Liberties - Under the Takings Clause, If a state takes private property for public use, what level of scrutiny is applied
    Government may take private property for public use if it provides just compensation. Only Rational Basis Test.

    The burden on the property owner must be roughly proportionate to the benefit to the government
  49. Individual Rights - Economic Liberties - Takings Clause - What 2 ways is it gov action considered a taking
    • 1. Possessory Taking: Gov actually confinscates the property or physical occupation
    • 2. Regulatory Taking: Only a taking if the gov reg leaves no use for the property - value reduction alone is not a taking
  50. Individual Rights - Economic Liberties - Takings Clause - when are conditions on development, temporary denial of use a taking
    • 1. Gov conditions on development of property must be a benefit proportionate to the burden on the P owner, otherwise it is a taking
    • 2. P owner may bring a challenge to the reg even if he bought property after the reg
    • 3. Temporarily denying P owner use of his land is not a taking if reasonable
  51. Individual Rights - Economic Liberties - Contracts Clause - When does K clause apply and what government does it apply against
    Only applies to states, not Federal ("No State shall impair the obligations of contracts")
  52. Individual Rights - Economic Liberties - Contracts Clause - When state interferes with Private Contracts what Scrutiny test is applied
    • State or Local Interference with a Private Contract is intermediate Scrutiny
    • 1. Does the legislation substantional impair a party's rights under a K; yes
    • 2. Is the law a reasonably and narrowly tailored means of promoting an important public interest?
  53. Individual Rights - Economic Liberties - Contracts Clause - When state interferes with Government Contracts what Scrutiny test is applied
    Strict Scrutiny
  54. Individual Rights - What is a criminal/civil Ex Post Facto Law and what level of scrutiny is applied to each
    It is a law that criminally punishes conduct that was lawful when it was done or increases the punishment after the crime was commited.  Its ILLEGAL

    A retro-active civil liability only needs rational basis test.
  55. Individual Rights - What is a Bill of Attainder
    Illegal.  A law that directs the punishment of a specific person or persons without a trial
  56. Substantive Due Process - What are a persons Fundimental Rights of Privacy (9)
    • 1. Right to Marry - Strict Scrutiny
    • 2. Right to Procreate - SS
    • 3. Right to Custody of Children
    • 4. Right to keep family together
    • 5. Right to control upbrining of children
    • 6. Right to contraceptives
    • 7. Right to abortion
    • 8. Right to Homosexuality
    • 9. Right to refuse medical help
  57. Substantive Due Process - Fundimental Rights of Privacy - What are the state/individual rights regarding Abortion (6 points)
    • Strict Scrutiny to Privacy Rights
    • 1. Right to abortion prior to viability
    • 2. State can regulate abortions but cannot put undue burden on the right to get abortion
    • 3. After viability, states can prohibit abortions
    • 4. Spousal consent illegal
    • 5. Gov no duty to subsidize abortions
    • 6. Can require parental consent as long as an alternative procedure
  58. Substantive Due Process - What constitutional protection affords and what is considered a Fundimental Right to travel, what Scrutiny test is applied
    Laws that restrict a persons right to travel freely between states are Strict Scrutiny. Protected under due process and privledges and immunities

    Durrational residency requirements are strict scrutiny
  59. Substantive Due Process - What is/not protected under the Fundimental Right - (5)
    • 1. Laws that deny voting on race, property ownership or charge a fee are unconstitutional
    • 2. Regulation of electorial process to prevent fraud is constitutional
    • 3. One person one vote must be met
    • 4. At large elections ok
    • 5. Race drawing election lines - strict scrutiny
  60. Substantive Due Process - What employment, training is Not considered a Fundimental Rights (2)
    • Not fundimental - only rational review
    • Education
    • Practice a trade or profession
  61. Equal Protection - When you see a potential Equal Protection issue, how do you approach it (3 Steps)
    • 1. What is the classification (race, national origin, sex ...)
    • 2. What level of Scrutiny Should be applied
    • 3. Does the law meet the level of scrutiny
  62. Equal Protection - What Constitutional Amendments require the State/Fed EP obligations(2)
    • 1. 14th Amendment - Equal Protection (only applies to states, not Fed)
    • 2. Equal Protection applied to Fed through Due Process of 5th
  63. Equal Protection - Classifications based on Race or National Origin, what scrutiny test is used, and how is it applied
    • 1. Strict Scrutiny: is the standard of review
    • 2. How is it proven: a. Exists on the face of the law; or b) if facially neutral must show discriminatory impact AND discriminatory intent
  64. Equal Protection - Is it ok/not to benefit minorities and what scrutiny test is applied
    • 1. Strict scrutiny applied
    • 2. Numerical set asides requires proof of past discrimination
    • 3. Colleges can use race as one factor in admissions, but can't add points
    • 4. Public schools cannot use race to assign students to schools, even if it furthers integration
  65. Equal Protection - Gender Classification - What is the Standard of review
    Intermediate Scrutiny: Must be an exceedingly pursuading justification
  66. Equal Protection - Gender Classification - If a statute is Facially Neutral, what must you show to prove discrimination
    Statute can discriminate on its face or be facially neutral.

    Must show discriminatory impact AND discriminatory intent
  67. Equal Protection - Gender Classification - When is it lawful to enact Laws benefitting women
    • 1. Gender stereo-types illegal: like giving alimony to women and not to men
    • 2. Laws benefitting women to remedy a past discrimination is allowed: like advancement for women because of long history of lower wages
  68. Equal Protection - Alienage Classification - All 3 levels of scrutiny apply to alienage issues, when does each apply
    • 1. Strict Scrutiny: is the typical review
    • 2. Rational Basis for: congress action, voting, police officer, teacher, jury
    • 3. Intermediate scrutiny: discrimination against undocumented children
  69. Equal Protection - If a law disfavors non-marital children, what level of scrutiny is applied
    Intermediate Scrutiny: can't have a law to benefit marital children but exclude non-marital children, like intestate laws
  70. Equal Protection - When a law discriminates, what classes of people do you apply the Rational Basis
    • 1. Age Discrimination
    • 2. Disability Discrimination
    • 3. Wealth Discrimination
    • 4. Economic Regulations
    • 5. Sexual Orientation Discrimination
  71. First Amendment - Free Speech - When a law is Content Based, what is the level of scrutiny/ What scrutiny do you apply to Content Neutral
    1. Content Based: Strict Scrutiny. Either a) Subject Matter Restriction or b) viewpoint restriction

    2: Content Neutral: Intermediate Scrutiny. Burdens speech but not based on subject or viewpoint.
  72. First Amendment - Free Speech -What is a prior restraint on speach, what scrutiny is applied, what happens if there is a prior restraint by court order
    Court Orders Supressing Speech: Strict Scritiny. You must comply with a court order or you lose ability to challenge it later.
  73. First Amendment - Free Speech -When can you require a license to exercise speech
    Licensing: Can require license if an important reason, clear criteria and no discretion to authorities. Require prompt determination and judicial review.
  74. First Amendment - Free Speech - When is a law regulating speech considered Vagueness and Overbreadth
    Vagueness: A reasonable person cannot tell what speech is prohibited and what is allowed

    Overbreadth: When it regulates substantially more speech than the contitution allows to be regulated
  75. First Amendment - Free Speech - When can you regulate Symbolic Speech and what is the scrutiny test
    Can regulate conduct that communicates if an important interest unrelated to suppression and no greater than necessary to acheive gov interest.
  76. First Amendment - Free Speech - Do government employees have a freedom of speech right
    Cannot be challenged
  77. First Amendment - Free Speech - What is the test to determine what constitutes Obscenity
    • Obscenity is not protected:
    • 1. Material must appeal to pruient interests
    • 2. Must be patently offensive under the law banning it
    • 3. Taken as a whole must lack serious redemming qualities

    Gov cannot punish private possession of obscene material
  78. First Amendment - Free Speech - Is Profane and Indecent Speech protected speech, when is it not
    • Generally protected, except:
    • 1. Airwaves
    • 2. Fighting words
  79. First Amendment - Free Speech - Commercial Speech - What speech can the gov regulate relating to Professionals
    • 1. Can prohibit attorney - in person solicitation
    • 2. Can prohibit professionals from advertising under trade name
    • 3. Cannot prohibit accountants in-person solicitation
  80. First Amendment - Free Speech - When the Gov regulates Commercial Speech, what is the Standard of review
    Intermediate Scrutiny: Narrowly tailored, but does not need to be least restrictive
  81. First Amendment - Free Speech - When a Public Office/Figure claims Defamation, what two elements must he prove
    • Can recover if can prove:
    • Malice
    • Falsity of statement
  82. First Amendment - Free Speech -Defamation - When a Private Person w/ Public Concern claims Defamation, what two elements must he prove
    • Can recover if:
    • 1. Falsity
    • 2. Negligence
  83. First Amendment - Free Speech -When a Private Person has been defamed, what damages can he get 
    • Presumed P can recover
    • Punitives if can show Malice
    • Maybe Intention Infliction Emotional Distress
  84. First Amendment - Free Speech When is the media protected from publishing privacy information
    • 1. Cannot impose liability for truthful reporting of info lawfully obtained by gove
    • 2. Media not liable if it broadcasts info of public concern that it obtained lawfully from someone who obtained it unlawfully
    • c. Gov may limit its dissimination of info to protect privacy
  85. First Amendment - Free Speech - Where can a person exercise his freedom of speech, what regulations can gov use
    • Public Forums: Properties Gov is required to make available for speech (side walks, parks)
    • 1. Reg must be subject matter and viewpoint neutral - if not strict scrutiny
    • 2. Regulations must be only for: Time, Place and Manner - leave open adequate alternatives
    • 3. TPM need not be the least restrictive available
    • 4. City officials cannot have discretion
  86. First Amendment - Free Speech - Places available for speech- What are considered Designated Public Forums
    Forums that Gov could close to speech but opens anyway. Same rules as public forum: Time, Place, and Manner, least restrictive not required.
  87. First Amendment - Free Speech - Places available for speech - What places are people limited in their exercise of speech and considered Limited Public Forums
    Government properties dedicated to certain discussions of certain subjects. Regulation must be reasonable and viewpoint neutral
  88. First Amendment - Free Speech - Places available for speech - What places are people not entitled to exercise speech and are considered Non-Public Forums
    Government property that the Gov can regulate speech (like military base). Regulation must be reasonable and viewpoint neutral
  89. First Amendment - Free Speech - Places available for speech - Does a 3rd person have a free speech right on anothers Private Property
    No first amendment protection
  90. First Amendment - What standard of review is applied to Laws that Prohibit Freedom of Association
    Prohibition against group membership must meet strict scrutiny.
  91. First Amendment - Freedom of Association - When can the government Punish Membership in an association (3 elements)
    • Only if:
    • 1. Actively affiliated with group
    • 2. Knowing of its illegal activities
    • 3. Specific intent to further the activities
  92. First Amendment - When does the Freedom of Religion not protect an individual
    • Free Exercise Clause:
    • a. Cannot use free exercise clause to attack a neutral - generally applicable law (Peyote)
    • b. May not deny unemployment who quits job because of religious beliefs
  93. First Amendment -What 3 factors determine if a States action has violated the Establishment Clause
    • To be valid:
    • 1. Must be a secular Purpose
    • 2. Must neither advance or prohibit religion
    • 3. Must not be excessive entanglement
  94. First Amendment -How is the Establishment Clause applicable/not applicable to school activities
    Cannot sponser religious activities.  However if school made available for non-religious groups, must also make available for religious groups
  95. First Amendment -Establishment Clause - What Assistance can gov give to Perochial Schools without violating the establishment clause
    Gov. Can give assistance to perochial schools, so long as not used for religious instruction. Gov may provide parents with vouchers that they can use at perochial or secular schools

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