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Under Article III of the federal constitution, the jurisdiction of federal courts is limited to cases or controversies
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Included in the kinds of cases that come within the judicial power of the United States are diversity jurisdiction and federal question jurisdiction
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A major exception to the judicial power is created by the 11th Amendment and by the preexisting concept of state sovereign immunity
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You cannot sue a state for money damages in either state's own court or federal court unless the state consents or the U.S. Congress expressly says so to enforce 14th Amendment rights
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11th Amendment protects state and state agencies, not local governments (e.g. cities, counties, or towns).
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Almost all cases come to the Supreme Court by way of writ of certiorari. The court has discretion-- it can take a case or not.
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Congress can make exceptions to the Court's appellate jurisdiction
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Adequate and Independent State Grounds: The Supreme Court can review a state court judgment only if it turned on federal grounds. The court has no jurisdiction if the judgment below rested on an adequate and independent state ground
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AISG: arises only when Sup Court reviews a state court judgment
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AISG: adequate=
the state ground must control the decision no matter how a federal issue is decided. This happens when the federal claimant wins anyway under state law
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independent= the state law does not follow/depend on an interpretation of federal law. No AISG if state law adopts or follows federal law.
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When a state court decision is unclear as to whether it rests of federal grounds or state grounds, the Supreme Court can review it.
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justiciability: to be heard in federal court, must have standing and case must be timely
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standing: requires injury, causation, and redressability
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standing: injury must be concrete but need not be economic
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standing: mere ideological objection is not injury
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standing: an organization has standing if its members have standing
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causation: D's act must have caused or will cause the injury
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standing: redressability= a court can remedy or redress the injury
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If the injury is in the past, the redress is damages
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If future injury is threatened, redress is an injunction
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past injury does not give automatic standing to seek an injunction for future injury. You must show that it will happen again.
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Federal taxpayers always have standing to challenge their own tax liability (e.g. prop taxes) However taxpayers do not have standing to challenge government expenditures. EXCEPTION when:
there is an establishment of religion challenge to specific congressional appropriation. This can be challenged by any taxpayer.
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legislators generally do not have standing to challenge laws that they voted against
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In general, may not raise the rights of someone else EXCEPT
parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction
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timeliness: case may not be ripe or moot.
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ripeness concerns prematurity of a case. You must show actual harm or an immediate threat of harm
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mootness are overripe and are dismissed whenever they become moot UNLESS a controversy capable of repetition yet evading review. Such cases always have an internal time limit (.e.g pregnancies and abortion).
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federal courts cannot issue advisory opinions- they cannot rule on the constitutionality of proposed legislation
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courts will not decide political questions, e.g. foreign affairs, impeachment procedures, and political gerrymandering cases since no judicially manageable standards for judicial decision making
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Powers of Congress: don't choose MBE answers with the words:
" promote the general welfare" when by itself this is not a standalone power of Congress
" federal police power" fed gov't doesn't have
"necessary and proper" with no other legislative power attached to it. necc and proper is not a free standing power of Congress
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MBE tip: when it doubt, pick the commerce power
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Congress can regulate the channels and instrumentalities of interstate commerce and intrastate activity that has a substantial effect on interstate commerce
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substantial effect is judged in the aggregate- does the aggregate activity of everyone doing the same thing have a substantial effect on interstate commerce?
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stage generally cannot burden interstate commerce, but may be ok if Congress authorizes
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a tax must be rationally related to raising revenue. ok even when the tax is actually used to prohibit a good or activity if rationally related
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the tax must be nationally uniform, but ok impact is disparate
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Congress cannot force states to adopt or enforce regulatory programs.
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Congress can bribe states through the use of the spending power
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COngress can adopt its own regulatory program and enforce it with federal officers
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Congress has the power to declare war and maintain the Army and Navy
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Congress can provide for military trial of enemy combatants or enemy civilians
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Congress cannot provide for military trial of U.S. civilians
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Congress can regulate the District of Columbia and enact legislation that only applies to D.C.
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13th amendment- reflects Congress's broad power to legislate against racial discrimination whether public OR private
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13th only amendment allowing Congress to regulate purely private behavior
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Congress does not have the power to overrule the Court's decisions and define new rights other than those specified in the Constitution (e.g. RFRA)
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Executive branch can direct the actions of federal executive agencies, provided the actions are not inconsistent with an act of Congress, but the executive branch generally cannot direct the actions of persons outside the executive branch unless authorized by an act of Congress
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president has to power to enforce the law, but not to make or break it
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Some powers are exclusively executive, e.g. enforcement of law, pardon power, veto power, hiring and firing of executive officers, military decisions once Congress declares war, negotiating treaties (though Congress must approve), executive agreements
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If an executive officer, acts on behalf of the United Sates. If an officer appoint by speaker of the house, cannot be given executive power to act on behalf of the country
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executive agreements do not have the binding status of a treaty but take precedence over conflicting state laws. A treaty has the same authority as a statute.
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Congress may accuse president of high crime or misdemeanor (impeachment)
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impeachment requires 2/3 Senate vote. Remedy is removal and nothing else.
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President CANNOT impound funds- When a statute clearly requires that funds be spent, President has no power not to do so.
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Congress may not pass a law including provision to reserve the right to disapprove future executive action. To override future executive actions, Congress must change the law.
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Congress can delegate its power to administrative agencies if there are intelligigle standards governing the exercise of that delegate power (almost all delegations are upheld)
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President has absolute immunity for official acts, executive privlege not to reveal confidential communications with presidential advisers (but can be outweighed by a specifically demonstrated need in a criminal prosecution); no immunity for acts done prior to taking office
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judges have absolute immunity for all JUDICIAL acts. May be liable for non-judicial activities
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U.S. Senators, Congressmen, and their aids cannot be prosecuted or punished in relation to their official acts. The official acts of a federal legislator cannot be introduced into evidence
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Power over foreign relations and coin money are exclusively federal
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The federal government is generally immune from direct state regulation or taxation, however states can tax indirectly (e.g. taxing the income of federal employees)
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states are not immune from direct federal regulation
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state laws cannot shield state officers from federal liability
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Article IV (Comity Clause): Privileges and Immunities of STATE citizenship
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Article IV Comity Clause forbids serious discrimination against out of state individuals absent substantial justification
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Comity Clause does not protect out of state corporations
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Serious discrimination typically involves employment, e.g. under Comity Clause, there can be no legal requirement of residency for private employment (includes occupational licenses like bar exam). However, public employment can require residency requirements
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Non serious discrimination= recreational opportunities (e.g. hunting licenses)
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Dormant Commerce Clause: RULE: in the absence of federal regulation, state regulation of commerce is valid so long as 1) there is no discrimination against out of state interests, 2) the regulation does not unduly burden interstate commerce and 3) the regulation does not apply to wholly extraterritorial activity
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Dormant Commerce Clause protects both out-of-state individuals AND out-of-state businesses
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No discrimination against out of state interests: examples include taxing the out of state interest at a higher rate, forbidding sale only of out of state products, requiring that manufacturing be performed in-state
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No discrimination against out of state interests: EXCEPTIONS:
- - if state is a market participant: state is buying or selling goods or services and can choose to deal with only in-state persons
- - subsidies: a state can always choose to subsidize only its own citizens (e.g. in-state college tuition)
- - federal approval: congress authorizes or consents to state regulation of commerce even if it discriminates against out of state interests
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Non-discriminatory regulations are rarely struck down
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both substantive due process and equal protection have the same three standards of review, though intermediate scrutiny has only ever been used to decide cases based on equal protection grounds
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strict scrutiny asks:
is the law necessary for a compelling state interest?
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implicit in strict scrutiny is the requirement for the least restrictive means
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when strict scrutiny applies, the government bears the burden of proof. It must show that the interest is compelling and the law is necessary to that interest.
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strict scrutiny applies when there is a suspect classification or a fundamental right
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intermediate scrutiny asks, is the law:
substantially related to an important government interest?
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intermediate scrutiny applies to classifications based on legitimacy and gender
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rational basis asks:
is the law rationally related to a legitimate interest?
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rational basis: the challenger bears the burden of prof
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fundamental rights issues may be under due process or equal protection
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if a law denies a fundamental right to everyone, triggers
substantive due process
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if a law denies a fundamental right to only some, it violates equal protection
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fundamental rights: travel: fundamental right of interstate travel and settlement
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fundamental rights: travel: states can imposed reasonable residency requirements for political participation and government benefits
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reasonable= 30-90 days. unreasonable= one year, except in-state tuition and jurisdiction to divorce
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fundamental rights: travel: all residents have a right to be treated equally. a state cannot have a tax scheme that favors long term residents over recently arrived residents
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fundamental rights: voting: fundamental for all citizens over 18
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fundamental rights: poll taxes are unconstitutional because they burden the fundamental right to vote
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fundamental rights: voting: short term (e.g. 30 days) residency requirements are permitted
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fundamental rights: voting: Congress controls the residency for the President. States control residency requirements for all others.
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fundamental rights: states can impose requirements for candidates to be listed on a ballot, such as longer residency, filing frees, and nomination petitions, so long as serious candidates can reasonably comply
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fundamental rights: if candidate requirements become so onerous that they effectively bar access to the ballot, they are unconstitutional.
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fundamental right: marriage: can't be a substantial interference with an age-qualified man and woman
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fundamental rights: contraceptions: fundamental for everyone, whether married or not
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fundamental rights: sort of: sexual intimacy: rational basis with teeth (i.e. state has not legitimate reason to regulate)
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fundamental rights: abortion: states can regulate, but cannot impose an undue burden on the women's right to terminate her pregnancy
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fundamental rights: abortion: allowed stuff: informed consent requirements, 24 hour waiting periods, parental notification requirements for minors
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fundamental rights: abortion: not allowed: parent consent requirements, spousal requirements
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fundamental rights: abortion: gov't financing of abortion is not required (e.g. can prohibit abortion at a hospital it funds)
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fundamental rights: parental rights: right to raise children as parent sees fit, including choice of religious or private schools
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fundamental rights: parental rights: can lose rights through abandonment, abuse, or neglect
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fundamental rights: family relations: includes right to live together with close relatives
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fundamental rights: obscene: right to read in privacy of one's own home UNLESS child porn
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fundamental rights: obscene material: no fundamental right to purchase, sell, import, or distribute
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fundamental rights: refusal of medical treatment: not clear whether a fundamental right, but invokes a liberty interest
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fundamental rights: refusal of medical treatment: no right to commit suicide
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5th Amendment due process applies to federal government
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14th amendment due process applies to localities and states
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Equal protection clause found in 14th Amendment, but applied to federal gov't via 5th amendment
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14th: equal protection: suspect classifications=
- race
- ethnicity
- national origin
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14th: equal protection: suspect classifications: P must show discriminatory purpose. not enough to show a disproportionate impact
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14th: equal protection: suspect classifications: affirmative action is valid when it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action
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14th: equal protection: suspect classifications: preferential admissions allowed if necessary to achieve a diverse student body and diversity is essential to the education
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Exceptions to when strict scrutiny applies to alienage (U.S. citizenship):
1. If federal government classifies based on U.S. citizenship, doesn't trigger strict scrutiny. But cannot be arbitrary and unreasonable
2. If involves state or local participation in government functions, non-U.S. citizens can be barred from certain government jobs or: voting, serving on a jury, working in any kind of govt' law enforcement officer, or as a public school teacher
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undocumented aliens are not a suspect class, but states can't deny their kids a public education
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intermediate scrutiny: gender classifications almost always invalid
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non-suspect classifications include age and wealth; however gov't has to waive fees for indigents when charging the fee would deny a fundamental right (e.g. certain court fees)
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If electing representatives by district, fundamental right via equal protection
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race may be A factor in drawing district lines, but cannot be the predominate or only factor
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political gerrymandering (drawing districts to hurt one party) rarely struck down b/c considered a political question
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in sum: if issue of U.S citizenship generally can't discriminate (unless about gov't job or certain gov't functions; if issue of residency, generally can discriminate if concerns benefits (e.g. in-state tuition)
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takings: if regulatory taking, compensation is generally not required even if the regulation reduces the value of hte property
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if gov't physically occupies only a tiny portion of your property, still a taking
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if no physical occupation, generally no taking
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takings: zoning: no taking unless zoning does not advance a legitimate interest and it extinguishes a fundamental attribute of ownership. Can be considered a taking if it leaves no economically viable use for the property
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unconstitutional legislation: bill of attainder= a legislative punishment without judicial trial
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unconstitutional legislation: ex post facto laws: may not expand criminal liability retroactively, either by creating a new crime that applies retroactively to past conduct or by increasing the penalty for past conduct
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unconstitutional legislation: impairing contracts violates Contracts Clause, i.e. state legislatures may not impair existing contracts unless there is an overriding need (e.g. emergency like Great Depression or termination of mortgages)
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establishment of religion: Lemon test:
- 1) does the law have a secular purpose
- 2) does the law have a primary effect that neither advances nor inhibits religion
- 3) does the law avoid excessive government entanglement with religion?
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Lemon test not explicitly overruled, thought not often applied
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neutral aid (aid that goes to everyone, including religious primary and secondary schools) is allowed
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violates Establishment Clause for the gov't to endorse one religion over another and to endorse religion over non-religion. Some endorsements upheld (e.g. "In God We Trust" on currency)
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Goal is to prohibit government endorsement of religion that might prove coercive on an individual's conscience, e.g.
- officially sponsored school prayer
- officially sponsored graduation prayer
- inspirational bible reading (though not inspirationg, e.g. educational, is okay)
- Display of Ten Commandments if for religious purposes (secular purposes, e.g. historical, teaching as an example of early legal code is ok)
- prohibition of teaching evolution
- nativity scenes without other holiday scenes to dilute the religious message
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free exercise of religion: right to hold any belief protected absolutely. but religious conduct is qualified
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free exercise of religion: a law cannot regulate religious conduct because of its religious significance
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free exercise of religion: neutral, generally applicable laws can be enforced despite religious objections
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free exercise of religion: no right to accommodation i.e. right to exemption from neutral, generally applicable regulations of conduct EXCEPT non-discrimination employment laws cannot be applied to ministers; fed gov't can't regulate employment relations b/w a religious institution and its ministers
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content based regulations trigger strict scrutiny and are usually struck down
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expressive conduct (i.e. symbolic speech): law regulating it upheld if:
- law furthers an important interest
- that interest is unrelated to the suppression of expression; and
- the burden on expression is no greater than necessary
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expressive conduct: if government trying to suppress a message, then the law will be struck down; if the gov't is trying to pursue an interest unrelated to the suppression of expression, then the law will be upheld
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vague laws= give no clear notice of what is prohibited and thus violates due process
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overbreadth: overbroad laws are ones that go too far in regulating speech. these laws burden substantially more speech than is necessary to protect a compelling interest and thus violate the 1st Amendment
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prior restraints disfavored, so injunctions against speech almost impossible to get.
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regulation of time, place, or manner is content neutral
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regulation of time, place, or manner applies mostly in a public forum
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public forum= a place traditionally reserved for speech activities. These places include a street, park, and public sidewalk around public building (not airports).
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regulation of time, place, or manner is content neutral: requirements to regulate (3)
- 1) content neutral on its face and as applied. No allowance for executive discretion (e.g. giving chief of police discretion to give parade permits)
- 2) alternative channels of communication must be left open
- 3) must narrowly serve a significant state interest (lower standard than "compelling.")
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In a nonpublic forum, any reasonable regulation of speech will be upheld
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nonpublic forums include various government property, eg. gov't offices, jails, power plants, military bases.
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Unreasonable: example= discrimination based on viewpoint
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some content based restrictions on free speech ok:
- obscenity
- incitement
- fighting words
- defamation
- commercial speech
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content based restrictions: obscenity requirements:
- -erotic; appeals to prurient interest
- -patently offensive to the average person in the society (society could be country as a whole, particular state, or a major metropolitan area)
- - defined by proper standards that aren't vague and/or overbroad
- - lacks serious value: determination made by the court, not the jury and based on a national standard, not a local one.
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obscenity: narrowly drawn ordinances can regulate the zoning of adult theaters, but cannot ban them entirely
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incitement if immediate violence is not protected
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fighting words: if likely to provoke an immediate breach of the peace, aimed/targeted at someone BUT on bar exam fighting words statutes usually unconstitutionally vague/overbroad (e.g. law against "hate speech" "offensive language")
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defamation: false statements of fact damaging to a person's reputation not protected.
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defamation: public officials and public figures can recover for defamation only on proof of knowing or reckless falsity
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private plaintiffs can recover on proof of negligent falsity
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most regulations on commercial speech are struck down. if advertising truthful and informational it must be allowed.
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regulation of commercial speech must directly advance a substantial government interest and be narrowly tailored to that interest.
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misleading commercial speech may be prohiited
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1st amendment restrictions basically don't apply to the government as a speaker
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corporations have the same 1st Amendment right to speak as individuals
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freedom of the press: the press/media have no special privileges. have the same rights as everyone else EXCEPT broadcasters may have a special case
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freedom of association: cannot be published b/c of political associations
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freedom of association: states cannot require open primaries
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freedom of association: requiring public employees to take a loyalty oath to the Constitution often struck down as vague/overbroad
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government employees cannot be hired or fired based on political party, political philosophy, or any act of expression UNLESS confidential advisor or policy-making employee (e.g. President's cabinet officers)
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campaign finance: contributions can be regulated, provided that the limits are not unreasonably low
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direct expenditures in support of a candidate, a campaign, or a political issue cannot be regulated
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independent expenditures cannot be regulated
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a coordinated expenditure is a disguised contribution and can be regulated as contributions can be regulated
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SC has consistently rejected equalization of campaign resources as a valid rationale for restricting campaign expenditures
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The constitution protection of direct independent expenditures applies to corporations, including non profits and unions
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