Con Law MBE

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  1. Article III Courts have judicial power over
    All cases and controversies
  2. What are cases and controversies?
    • 1. Arising under the Constitution, Laws, and Treaties
    • 2. Maritime jurisdiction
    • 3. In which the U.S. is a party
    • 4. Between two or more states
    • 5. State and citizen of another state
    • 6. Citizens of different states
    • 7. Btwn state or citizens and foreign entities
    • Constitution, Federal law, and treaties trump
    • State law
  3. Article III Courts
    SCOTUS, Ct of Appeals, and district courts
  4. Article I courts
    Tax and other administrative courts
  5. Original jurisdiction The Supreme Court of the United States
    Ambassadors, ministers, consuls and those which a state shall be a party.
  6. Concurrent Federal Jurisdiction
    May be given Congress, but may not restrict or enlarge Article III courts
  7. Mandatory Appeal to SCOTUS
    Those made by a three judge federal district court panel
  8. Article III limits
    Congress may limit, but must leave other avenues for review
  9. Advisory opinions
    Ct will not issue
  10. Declaratory judgments
    A challenged action poses a real and immediate danger to the interest of the party. Ct will issue.
  11. Ripeness – when will court hear
    • Court will not hear unless there is an immediate threat of harm
    • Exceptions to ripeness
    • Capable of repetition but evading review
  12. Mootness – when will court no longer hear
    Real or live controversy at all stages of review
  13. Standing
    Concrete stake in the outcome or controversy
  14. Components of standing
    • Injury (need not be economic)
    • Causal connection
    • Redressability
    • Required at all stages
  15. Standing to assert rights of others
    • Third parties find it difficult to assert their own rights
    • Plaintiff injury involves their relationship with a third party
    • Limitations – family law
  16. Organizational standing
    • Injury in fact to the members
    • Related to the organization’s purpose
    • Neither the nature of the claim or the lawsuit requires a member participate
  17. Taxpayer standing
    Generally no standing as congress has broad powers in taxation and spending
  18. Adequate and independent state grounds
    Any state decision must be fully dispositive and based on state court would have decided the same way without the federal question
  19. Enjoin
    Instruction from the court
  20. Will the court enjoin state courts
    No, the federal courts will not instruct on pending criminal proceedings
  21. Political questions
    • issues committed to another branch of government OR incapable of being resolved by judicial process
    • Barred by 11th Amendment
    • Action against state government for damages
    • Injunctive or declaratory relief where state is a party
    • Retroactive damages from state treasury or quiet title action
    • Actions against state officials for violating STATE LAW
  22. Exceptions to the 11th Amendment
    • Injunctions against state officers
    • Personal damages from state officers pockets
    • Actions for prospective payments from state
  23. 14th Amendment
    Incorporates most of the Bill Of Rights to the states
  24. Necessary and proper clause
    Not a power by itself, merely gives power to use their other ones
  25. Taxing power
    Taxes must be uniform
  26. Export taxes
    Neither congress nor the state can do
  27. Tax power validity
  28. Spending power may be used for
    ANY public purpose
  29. Regulation through spending
    Congress may attach strings to regulate in areas they are not usually permitted
  30. Commerce power
    Nearly unlimited regulatory power on interstate commerce for anything with an substantial economic effect upon commerce
  31. Commerce channels
    Regulate the channels of commerce
  32. War – economic regulation
    May regulate during war and after to remedy wartime disruptions
  33. Military courts – judicial review
    Generally federal courts have no power to review
  34. Court martial jurisdiction
    Military have jurisdiction over all acts committed by military members
  35. Witness rights 5th Amendment
    • Self-incrimination
    • Relevant evidence – pertinent
    • Procedural due process – counsel and cross examination
  36. Congressional property power
    • Power to acquire and dispose of property of all kinds
    • No limits on disposition
    • Eminent domain allowed
  37. Federal Police Power
    None, police power is the health, welfare or morals of citizens
  38. Bankruptcy power
    Article I section 8
  39. Postal Power
    Exclusive and reasonable restrictions that may not deprive
  40. Admiralty power
    Exclusive navigable waterways
  41. Delegation of power
    Brad delegation allowed to administrative agencies
  42. Defamatory statements on congressional floor
    Absolutely privileged
  43. Republication of defamatory statements on the congressional floor
    Not protected speech
  44. Presidential appointment
    Ambassadors, judges, public ministers – no appointment by congress
  45. Presidential Pardons
    All federal cases except impeachment –cannot be limited by congress
  46. Veto power
    2/3 to overcome veto
  47. Power of Chief Executive
    • When president acts with express or implied authority of Congress
    • Acts when congress is silent, likely valid so long as no power grab
    • Against congress, presidential action likely invalid
  48. Refuse to spend
    President may not do
  49. War Power
    Military appropriation required every two years
  50. Military government
    President can set up military government in occupied areas
  51. President foreign relations
    Power is very broad
  52. Treaty power
    With advice of the senate
  53. Treaty in relation to other law
    Constitution, federal law, treaty, state law
  54. Treaty v. Federal Law
    Last in time
  55. Executive privilege
    Documents and conversations presumptively privileged
  56. Field preemption
    When the federal gov. regulates the entire field of law, but this is not presumed
  57. Full faith and credit
    Court had jurisdiction over the parties, judgment was on the merit and the judgment is final
  58. State v. State jurisdiction
    • The Supreme Court of the United States
    • 14th Amendment
    • Power to restrict state activities that violate civil liberties in the state
  59. Spending power
    • 1. Clearly stated goals,
    • 2. Related to the purpose of the program, and
    • 3. Not unduly coercive
  60. Foreign commerce power
    Lies exclusively with congress
  61. State regulation on out of staters
    • 1. It must not discriminate, and
    • 2. not unduly burdensome
  62. Exceptions to state regulation of our of staters
    • Necessary or important state interest with no alternatives
    • Market participant
  63. Bar exam analysis of burdensome state regulation on commerce
    • 1. Any federal regulation?
    • 2. Does it supersede or preempt the field?
    • 3. Was it authorized by congress?
    • 4. If discriminatory: no alternatives or market participant
  64. State tax on interstate commerce
    • 1. Substantial nexus between state and taxpayer
    • 2. Fairly apportioned, and
    • 3. Fair relationship between tax and service provided by state
    • Contracts Clause analysis
  65. 1. Whether the legislation substantially impairs a party’s rights under an existing contract,
    • 2. Whether the legislation serves an important and legitimate public interest, and
    • 3. Whether the legislation is a reasonable and narrowly tailored means of promoting the public interest.
  66. Under the Contracts Clause, if state legislation substantially impairs a party’s rights under an existing contract, it will be valid only if it serves an important and legitimate public interest and is:
    A reasonable and narrowly tailored means of promoting the public interest
  67. If a regulation of speech targets truthful advertisement concerning lawful activities, it will be valid __________.
    If it serves a substantial government interest, is narrowly tailored to serve that interest, and directly advances the interest
  68. The Lemon Test on the Establishment Clause
    • 1. Has a secular purpose
    • 2. Has a primary effect that neither advances or inhibits religion, and
    • 3. Does not produce excessive entanglement with religion
Card Set:
Con Law MBE
2014-07-15 22:26:01
law con
Con Law MBE
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