con law rules - short rules.txt

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  1. Executive orders?
    • Preisdent can issue executive orders, pursuant to his Chief Executive Powers.
    • Executive orders are subject to the following test:
    • 1) express or implied approval of Congress, Prez's authority is at its maximum, likely valid
    • 2) Congress is silent, likely upheld, unless the act usurps the powers of another branch
    • 3) against Congress' express will, little authority and likely invalid [must pass contrary legislation]
  2. President's Military Powers?
    • President has extensive military powers, including the power to act over domestic affairs involving military necessities.
    • I.e., can protect the nation against terrorism.
  3. 10th Amendment?
    • Powers not expressly given to the US, are given to the states, unless expressly prohibited, and then given to the people.
    • Anti-commandeering principle: Congress cannot require states to regulate their own citizens.
  4. Standing
    • Before Plaintiff can sue in federal court, she must show standing.
    • In order to show standing, P must show sufficient stake in the controversy:
    • 1) personal injury
    • 2) caused by D
    • 3) capable of remedy by the court
  5. Can P sue a state govt?
    • 11th Am prohibits federal court from hearing a claim by a party against a state govt.
    • Exceptions:
    • 1) does not apply to local govts
    • 2) does not apply to state officers
  6. State action?
    • State action exists where
    • 1) state is providing a public function, or there is significant state involvement.
  7. Dormant Commerce Clause - What can states regulate?
    • States may regulate activities that are purely local [based on their police power].
    • However, states may not impose an unreasonable burden on IC.
  8. To be valid, under DCC, state may not:
    • 1) discriminate against out-of-staters to benefit locals and
    • 2) must not be unduly burdensome on IC
  9. If the law does NOT discriminate against out of staters:
    • violates DCC unless:
    • 1) burdens exceed its benefits.
  10. If the law discriminates against out of staters:
    • violates DCC unless:
    • 1) necessary to acheive an IGI (no less discriminatory alternative available)
    • 2) Market Participant (state is acting like a business or customer, rather than a regulator)
    • 3) Congressional Approval
    • If any of these exceptions, state is free to favor its in-state residents.
  11. Privileges & Immunities - Article IV
    • P&I prevents a state from discriminating against citizens of another state regarding fundamental rights:
    • 1) civil liberties
    • 2) *important economic interests*: pursuit of livelihood
    • If discriminates, must be necessary to acheive an IGI (no less discriminatory alternative available)
    • Note: Does not apply to corporations!!
  12. Contracts Clause
    • Prevents state from impairing existing contracts
    • Private contract can be modified if the law is a IGI, and narrowly tailored
  13. Vagueness
    A law must give a reasonable person notice of what is prohibited. Otherwise chilling effect might occur.
  14. Overbreadth
    A law is overbroad if it regulates both protected and unprotected speech.
  15. Unfettered Discretion
    • A regulation cannot give officials broad, unfettered discretion over speech issues.
    • There must be defined/consistent standards for applying the law.
  16. Prior Restraint
    • A prior restraint enjoins speech before it is made. Generally disfavored by the courts.
    • Content-based prior restraint: SS applies [special society harm]
    • Must be: narrowly drawn, reasonable and definite in scope
  17. Court orders suppressing speech?
    • 1) must meet SS
    • 2) procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is bared from later challenging it
  18. A licensing-scheme allowed ONLY if certain procedural safeguards are included
    • 1) important reason for licensing
    • 2) clear criteria
    • 3) almost no discretion for the licensing authority
    • 4) prompt determination & judicial review
  19. Judge forbidding the press from attending the trial or publishing details of the testimony at trial?
    • Prior restraint.
    • Generally unconstitutional, unless it is the ONLY way to preserve a fair trial.
    • Other ways: change of venue, screen & sequester jurors.
  20. Incitement
    • 1) imminent illegal activity
    • 2) directed to cause the activity
  21. Obscenity
    • 1) appeals to the prurient interest [lustful excitement]
    • 2) patently offensive [local laws]
    • 3) lacks all social value [nationally]
  22. Commercial Speech
    • 1) deceptive, false, illegal actvity - unprotected
    • 2) else, IS applies
  23. Defamation
    • Speech related to matter of public concern . . .
    • 1) if P is a public figure, then falsity + malice. [CCE standard]
    • 2) if P NOT public figure, then falsity + negligence.
    • If matter of public concern, malice must be proven to get presumed or punitive damages.
    • If not a matter of public concern, malice not required to get presumed or punitive damages.
  24. PF/DPF
    • Public forum is an area govt is constitutionally required to keep open for speech.
    • Designated public forum is an area the govt chooses to open for speech.
    • 1) content-neutral
    • 2) IS
    • 3) leaves open other adequate alternative places for communication
    • else, SS
  25. LPF/NPF
    • LPF: govt limits the forum only to some subjects
    • NPF: govt constitutionally permitted to close to speech
    • 1) viewpoint neutral
    • 2) reasonable
    • else, SS
  26. Symbolic Speech
    • Heightened scrutiny
    • 1) IGI
    • 2) burden no greater than necessary to acheive purpose
  27. Freedom of Association
    • Generally SS if pohibits or punishes a group.
    • Can prevent a group from discriminating, unless discrimination is integral to expressive activity
  28. Punish someone for joining an illegal group?
    • 1) actively affiliated w/group
    • 2) knowing of its illegal activities
    • 3) specific intent to further those activities
  29. What is a religion?
    • Supreme Court has not defined.
    • But has held that the belief must occupy a place in the believer's life parallel to orthodox religious beliefs.
    • Does not need to have a supreme being, needed not be traditional or organized religion
  30. Free Exercise Clause
    • Govt cannot punish someone on the basis of the person's religion.
    • A law of general applicability will not be subject to invalidation even if it incidentally interferes with a religion.
    • Law must be motivated by desire to interfere with religion, then SS applies
  31. Establishment Clause
    • Establishment clause prohibits the establishment of religion.
    • If facially favors some sect over others, then SS applies.
    • If facially does not favor any sect, then Lemon test applies.
  32. Lemon Test:
    • 1) Secular Purpose
    • 2) Secular Effect (primary effect that neither advances nor inhibits religion)
    • 3) Excess Entanglement (with govt and religion)
  33. Levels of scrutiny?
    • SS: Necessary to acheive a CGI
    • IS: Substantially related to acheive a LGI
    • RB: Rationally related to a LGI
  34. Substantive Due Process
    Whether the govt has adequate justification take away someone's rights [economic liberties/privacy]
  35. SDP - rational basis applies to?
    • Non-fundamental rights
    • 1) economic regulations
    • 2) social regulations
  36. SDP - strict scrutiny applies to?
    • Fundamental rights, including
    • 1) interstate travel
    • 2) voting
    • 3) privacy
  37. SDP - privacy rights?
    • 1) contraception
    • 2) marriage
    • 3) procreation
    • 4) child rearing, regarding choice of private education
    • 5) right for a family to stay/live together
  38. SDP - abortion rights?
    • 1) pre-viability, OK only if no undue burden
    • 2) post-viability, can be prohibited unless woman's health is threatened
  39. Procedural due process
    • P must prove that he suffered a deprivation of life, liberty, or property.
    • liberty = constitutional freedom
    • property = entitlement to a continued receipt of benefit
    • *note: must be intentional/reckless govt action
  40. Procedures satisfy PDP?
    • balance
    • 1) importance of interest to individual
    • 2) ability of additional procedures to increase the accuracy of fact-finding
    • 3) govt's interest
  41. Takings Clause
    • 1) Govt may take private property
    • 2) for public use [reasonable belief]
    • 3) if it pays just compensation [market value, loss to owner]
  42. Posssessory taking?
    confiscation or physical occupation of property
  43. Regulatory taking?
    Deprivation of all economically viable use of property
  44. Preemption
    • 1) Powers that are exclusively federal because of constitutional limitation cannot be exercised by the states.
    • 2) Supremacy clause (when both state and fed govts pass legislation on the same subject, Supremacy clause provides that the federal law is supreme, and the conflicting state law void)
    • ----a) mutually exclusive
    • ----b) Congress intended to occupy the entire field of law
    • ----c) state law interferes with Congress' purpose
Card Set:
con law rules - short rules.txt
2013-07-16 09:12:01
ca bar con law short rules

ca bar con law short rules
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