Con Law MBE

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  1. 11th Amendment Sovereign Immunity
    Private individuals cannot sue states in any fed court for money damages

    • Exceptions: 1. State and Fed can sue each other
    • 2. States can be sued for injunctive relief
    • 3. 11th A can be waived
    • 4. City and municipalities are not protected under 11A
    • 5. Enforcement power- congress can trump to enforce constitusion (13-15)
  2. To get into Fed court, one must go thru "RAMPS"

    Abstention & Adequate State Grounds


    Political Questions

  3. What is mootness?
    Controversy or matter has been resolved. However, if party still has an interest in case, the case will not be dismissed

    Exception: Case not dismissed if "it's capable of repititaion, yet evading review." (i.e. pregnancy)
  4. Describe Ripeness
    Ripeness bars consideraion of claims before they have fully developed (usually involves declaratory judgement request)

    -There MUST be present threat of harm (or imminence)
  5. Abstention & Adequate Grounds
    Fed court abstains or refuse to hear cases when there are undecided issues of STATE law (Deferenece to state court to explain state law)

    -Fed court will refuse to hear matters when same matter is being heard in state court at the same time
  6. Standing (Article III)
    P must show: 1) injury in fact (suffered or imminent); 2) causation; 3) Redressibility (P's injury must be sufficient so that Court's decision will make P whole) - if not Advisory opinion= NO

    • 1. Legislator who voted against law
    • 2. P who wants to protect general constitution
    • 3. Tax payer who doesnt want tax funds to enforce law (EXCEPTION- establishment clause)
  7. Third Party Standing
    Generally, 3rd party standing.

    • Permitted when:
    • 1) Special Relationship- Connection between interest of claimaint and constn right of 3rd party unable to bring suit himself.
  8. Organizational Standing
    • Org has standing on behalf of its memebers, if:
    • 1) Memebers have standing (RAMPS)

    2) The interest asserted is germane to the org

    3) Neither the claim asserted or relief requested would require participation by an individual member ( all members have same claim, seeking same relief)
  9. Political question
    Fed courts cannot hear cases involving political questions (matters assigned to another branch or uncapable of of judicial answer)

    Factors to consider: 1) textual commitment; 2) no legal standards (2 most commont)

    • Common PQ areas:
    • 1. Impeachment process
    • 2.Amendment ratification
    • 3. Presidents Powers
    • 4. Foreign affairs
    • 5.Curanty Clause issues
    • 6. Election districts (except when race)
  10. Adequate & Independent State Grounds
    Only applies to Fed Supreme Court when receiving State Hight court

    -SC will not review state high court decision if state law adequately applies, where state court holds that state law violates both state & fed

    EXCEPTION- State's assert that its states constitutional laws have the same meaning as fed constn
  11. Jurisdiction of SC
    1) Article III section 2- original & appellate jurisdiciton

    2) Ambassadors, foreign ambassadors, States

    3) Appellate jurisdiction exist where Fed const or a Fed law are @ issue
  12. Congress powers over court
    Lower Fed Courts= The can do whatever

    SC=Congress cannot restrict or expand jurisdiction
  13. EXAM tip- "Fed Police Power" & congress power to promote general welfare
    These powers don't exist, unless discussing DC or other US territory
  14. 3 Sources of Lesislative Power
    Congress has the poweres given by the constn and no other

    Can pass bill, if vetoed congress can override the veto if 2/3 majority of each house

    • 3 Sources of Legislative Power:
    • 1) Enumerated Powers:( collect taxes & spend money for general welfare, borrow money, regulate commerce, declare war, raise & support an army)

    2) Enabling Clause- (Power to enforce 13th, 14th , 15th amendments by appropriate legislation [racial stuff])

    • 3) Necessary & Proper Clause- (Implied power to make all laws necessary and proper for carrying lass into execution
    • EXAM TIP- by itself, the answer most likely wrong. NC + another power- most likely correct
  15. Commerce Clause
    • Congress can regulate:
    • 1) Instrumentalities- vehicles , ships, planes

    2)Channels- land, water, air

    3)Activities that substantially affect IC (and intra)

    • 2 Theories:
    • 1) Affectuation Effect: Congress can regulate any economic activity

    2) Commulative Effect: Single instance of act if total of all similar actions whould have affected commerce
  16. Commerce Clause: "Substantial Effects Test"
    • Congress must show:
    • 1) That a regulated activity is "economic" in nature, AND
    • 2) That the regulated activity (taken cumulatively in US) has an substatial effect on IC

    • Examples of "economic activities":
    • -Violent crimes is NOT
    • -Loan Sharking IS
    • - Maybe guns if there's a jurisdictional element
  17. Commandering:

    10th A-" All other powers not in fed go to states"
    Congress may not commandeer the legislative process of STATES by directly compelling states to enact & enforce Fed regulatory programs

    - Congress may not order state official to act as administravors of FED programs
  18. Congress: Taxing Power
    Congress can impose or collect to pay debts & spend for general welfare

    • Must fall into:
    • 1) Raising revenue ( obj)("Dominant intent")

    2) Intent to raise revenue (subj)

    3) Directly regulate the law

    *16th A gives congress the power to collect taxes on incomes derived from any source
  19. Congress: Spending power
    Art I, section 8, clause I
    • *Not an independent source of power
    • Congress has the power to spend for the general welfare
    • - Congress can require states to comply w/ specified conditions in order to qualify, if:
    • 1)The spending serves GW
    • 2) An unambigous condition that relates to a Fed Program

    * The amount in question cannot be so great as to be considered coercion
  20. Congress: War & Defense Powers
    Art I, section 8
    • Congress may:
    • 1) Declare war
    • 2)Raise & support armies
    • 3) Provide/maintain navy

    • During war time, Congress may:
    • 1) Draft
    • 2)wage & price control
    • 3) civillian exclusion
    • 4) Military courts

    * Terrorist have DP rights
  21. Congress: Investigatory Power
    May investigate anything law related by any means necessary and proper
  22. Congress: Other powers
    • 1) Property
    • 2)Emminent Domain
    • 3)Bankruptcy
    • 4) Postal
    • 6) Copyright & Patent
  23. Civil War Amendments: 13th, 14th, 15th
    • 13th- banned slavery
    • 14th prohibited states from violating DP, EP or Priv & Immunities
    • 15th- prohibited race discrim in voting by states

    14 & 15 - Congress can enforce states (overcomes 10th)

    13- Enforcement against people
  24. Executing: Chief Executie Appointment Powers
    • Power to appoint:
    • 1) High level officials
    • 2)Cabinent members
    • 3)Cannot appoint members to any agency w/ adminstrative powers

    • * Congress can delegate the appointment of "inferior" officers to:
    • 1) The pres
    • 2) The courts
    • 3)Heads of exec depts
  25. Executive: Removal Power
    • Power to remove:
    • 1) Executive officials w/ fixed terms (congress limits)
    • 2) Fed judge by formal impeachment

    *Exception---> quasi judicial/admin function
  26. Executive: Pardon Power
    • Limitations:
    • 1) Only for Fed crimes
    • 2)Cannot undue impeachment
  27. Executive: Military Power
    • If congress does not declare war, the Pres can:
    • 1) Respond to attacks (not initiate)
    • 2) Can make battlefield tactical decisions
  28. Executive: International affairs
    1)Treaty Power- Pres can make treatis w/ consent of Senate 2/3

    • Treaties & Fed law= lawst in time
    • Treaties trump state law

    2)Executive Agreements- An agreement made between the Pres and a foreign government without ratification by the Senate.

    -Sole responsibliity of the Pres, need not be ratified by Senate

    • Fed stat trumps EA
    • EA trumps state law
  29. Congressional Limits on Executive Branch
    GR, if congress is acting w/in its constn powers, congress will win, Pres not above the law

    • 1) Impeachment- Congress can remove Pre, Fed judges and Fed officials
    • - House= sole power to impeach
    • -Senate= Sole power to conduct impeachment trial

    Impeachable crimes: 1) Treason; 2)Bribery; 3) High Crimes

    2) Appropriations Power: If congress by legislative act explicitly directs the Pres to spend appropriated money, the Pres has no power to refuse or delay
  30. Presidential Limits on Congress
    1) Veto, but can get overridden

    2) Pardon Power
  31. Judicial Limits to Leg and Exec?
    Judicial can only decide cases, issue orders on current cases
  32. The constitusion limits the state's power by:
    1) Exclusive Fed Power

    2) Individual Rights

    3) Preemption
  33. Immunity of Fed Gov
    1) Sovereign Immunity

    2) Supremacy Clause- Fed law supreme over state law

    • 3) Fed gov are immune from state taxation & regulation
    • * NOTE: state can collect non discrim tax on persons who deal or contract w/ the fed gov
  34. Immunity of State Gov
    1) 11th A prohibits citizens of one state from suing another state in Fed court (except 13-15)

    2) State officer can be sued if outside scope of authority

    • 3)*State immune from fed tax if applied to either:
    • a) Activities unique to stae
    • b) Essential gov functions
    • *NOTE: If state engages in proprietary business, can be taxed as private citizen

    4)Anti-Commandeering Doctrine- Fed cannot force states to act in their sovereign cpapctity(10th)
  35. State Power: DCC- State law discriminates on its face between inter & out of state
    Strict Scrutiny

    • State must show:
    • 1) That the regulation serves compelling state interest

    2) State has no other means to serve this compelling interest
  36. State Power: DCC: If state law merely incidentally burdens IC
    • The state must show:
    • 1) That the regulation serves an important state interest

    2) There is no excessive burden in relation to state interest (can't unduly burden)
  37. Exception to DCC
    1) Congress authorizes the state action

    • 2) "Market Participation Doctrine" - When states participate in the market like an individual consumer, the state can can make discrim actions that would otherwise violate the DCC
    • - Cops have to buy uniforms from uniforms in the state, valid

    * The DCC applies to state taxes, as long as it doesnt discriminate and doesnt exceed burden of congress (substantial nexus)
  38. State Action Requirment
    -Protects individuals from Gov actions, not private individuals, unless 13-15

    2 Exceptions: State action can be found in ations of privates actors under:

    1) Public Funtion theory: The private actor performs activities typically performed by the government (Functional equivalent) (ex: company towns, but NOT privately owned shopping center)

    • 2) Significant State Involvement theory: The private actor's private actions are closely supervised or supported by the state
    • ( Entwinement)

    * Does not apply to mere licenses or chargers to corporation
  39. Due Process: Exam Tip
    Multiple choice questions on this topic will present themselves in two different forms.

    The first asks what is the best source for an argument that a particular law is unconstitutional. For this, ask whether the constitutional provision protects from the states or from the federal government.

    The second type of question asks whether a law is constitutional. For this, look to the actual content of the individual rights.
  40. Invoking the "Bill of Rights" (5A) against the Fed Gov
    If Fed Gov is discrim, the DP clause of the 5th A should be invoked
  41. Invoking DP to the states
    The 14th A DP clause should be involked

    • 3 provisions of BOR that cannot be asserted via 14A DP:
    • 1) 5A right to indictment
    • 2)7th A right to jury in civil cases
    • 3)8th right against excessive fines
  42. For discrim by state Gov, usually EP of 14A will apply unless:
    1) Agasint out of staters/ visitors- Privileges / immunities of 4thA

    2)Against out of staters who wish to relocate- 14th A EP (placing waiting period for public benefits)
  43. Exam Tip: Priviliges & Immunities Clause of 14A
    Has frequently been a wrong answer on the MBE.

    -Almost all the privileges and immunities are protected by the CC, DP or EP.

    -However, P&E is not entirely dead. The SC has ruled that it is an alternative to EP clause protection w/ regard to right to travel
  44. DP Clause
    1) The 14A DP clause allows the BOR to be invoked against the states

    2) The DP clause of 5A applies directly to fed Gov
  45. Procedural DP
    • Protects against the derprivation of life, liberty and property w/out DP
    • 1. Liberty- Broadly, freedom from bodily restraint and physical punishment

    • 2. Property- Narrower. There are generally property interest in the following:
    • a. Public education
    • b. Pub/Gov employment
    • c. Welfare benefits
    • 4)Drivers license

    • 3. Life- You get some process if they want to kill y ou
    • a. The gov must give 2 things before derpriving a person or corp of life:
    • i. Adequate notice
    • ii. Hearing or opportunity to be heard
  46. Substantive DP: Economic Regulation
    Substantive DP rights are not economic

    • 1) Economic regulation has to meet RB
    • - Both over-inclusive and over-inclusive laws will meet rational bais review
  47. Substantive DP: Strict Scrutiny (Fundamental Rights)
    • The strict scrutiny test requires the Gov to show:
    • 1) A compelling Gov interest

    2) A law or policy narrowly tailored to achieve that goal or interest

    3) The law or policy must be the least restrictive means for achieving that goal
  48. SDP Fund Rights : Abortion
    A woman has a protected privacy interest in choosing to abort before fetus is viable

    1) Any reg on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman's right to choose (before 1st 2 months)

    * Examples of undue burden: ( spousal consent, spousal notification, recording the name of patients, no judicial bypass for minors)

    * NOT undue burden: (parental consent w/ judicial bypass, 24hr waiting period, requiring Drs to provide truthful/non-misleading info, refusing public funds, complete prohibition on certain methods of abortion)

    * Even subsequent to viability when necessary to protect maternal life/health
  49. SDP: Fund Rights- Family Relations
    1) Gov cannot prohibit members of extended famiy from liing in a single household

    2) The state can ban unrelated persons from living together in a single family residence
  50. SDP: Fund Rights- Sexual Orientation
    1) Gov cannot criminalize same-sex sexual activity (Lawrence v. TX)

    No strict scrutiny-->Use RB, but P usually wins because there is no legit state interest here
  51. SDP: Fund Rights- Private education
    Right to send your kid to private school if you want to
  52. SDP: Fund Rights-Obscene material
    Right to possess obscene material in your home, EXCEPT kiddie porn
  53. SDP: Fund Rights- Right to Die
    The right to refuse unwanted medical procedure

  54. SDP: Fund Rights- Right to Travel

    not really a privacy right
    1) 14A Priv & Immunities clause allows every citizen to travel freely from state to state and to set up residency in a new state

    2) DP does not create an absolute right to international travel (national security)
  55. SDP: Fund Rights- Right to Vote

    not really a privacy right
    1) 15thA- no race discrim in voting

    2)19thA- no sex discrim in voting

    3) 24th A- no poll taxes in fed elections or state

    4) 26thA- all citizens 18 or older may vote

    * No strict scrutiny, because voting is gov set up. Balance: 1) important Gov interest; and 2) limits not unduly burdensome

    Constitutional restrictions: ( reasonable residency reqs, voter registration reqs, reasonable time and manner for voting, deny felons right to vote)

    Unconstitutional restrictions: ( poll tax[pay to vote], req that school board members be property owners, standards to vague or lack uniformity)
  56. SDP: Fund Rights- Takings Clause
    5thA prohibits Fed gov from taking private property for pubulic use w/out just compensation (applies to states through 14thA DP)

    1) Public use= public purpose ( general welfare, greater good)

    • 2 Types of Takings
    • 1. Direct Gov Appropriation: Gov takes property and claims it for Gov

    • 2. Regulatory taking: Property not confinscated, but regulation is so onerous it is a constructive taking
    • - 3 Categories to determine if "onerous":
    • 1) Permanant physical invasion (no matter how minor)
    • 2) Regulation deprive owner of all economical beneficial use
    • 3) Temporary restrictions are not takings
  57. EP: Constitutional basis
    1) States= 14thA Priv/Immun

    2) Fed Gov= 5th A DP

    * EP requires the Gov to justify when it descriminates
  58. When you see this: EP
    • Remember:
    • - Best option when action interferes w/ funda mntl right
  59. When you see this: Taxing Power
    • Remember:
    • - Allowed for regulatory purposes if there is a revenue-raising funtion

    -Best answer if CC is not available
  60. When you see this: Supremacy Clause
    • Remember:
    • - Not a congressional power

    - Not a good choice, unless there is a congressional statute or provision conflicting w/ state activity
  61. When you see this: Priv & Immunities Clause

    - Bars states from discrimination against non non-residents on fundmntl matteres, unless the reguation in question specifically targets a problem arising from such non-resident behavior

    - The Priv & Immunities clause of the 14thA is almost never a correct answer
  62. When you see this: Police Power
    • Remember:
    • - Can be the answer only when state action vs. fed action
  63. When you see this: General Welfare or Spending Power
    • Remember:
    • - Congress' power to spend treasury funds, but not to regulate activity

    - Best answer when voluntary cooperation by party w/ fed Gov is the ONLY way to reash result
  64. When you see this: DP
    • Remember:
    • Best choice for an unconstn arguments when:
    • - State acts, Or

    - State doesnt grant a hearing or invades privacy rights
  65. When you see this: DCC
    • Remember:
    • - Legal doctrine inferred from CC

    - Prohibits a state from passing legislation that improperly burdens or discriminates against interstate commerce
  66. When you see this: Contract Clause
    • Remember:
    • - Can be an issue where the state revokes a K to which it is a party
  67. When you see this: CC
    • Remember:
    • - Grants congress the power to enact legislation that affects interstate commerce

    - Does not empower congress to push states into acting
  68. When you see this: 14thA
    - All the elements of the constn incorporated into the amendment are, hense protected by it

    -frequently best answer when 1A right of free speech or freedom of religion is not offered as a choice
  69. When you see this: 13thA
    • Remember:
    • Best answer when private individuals, who do not qualify as state actors, discriminate
  70. When should the SC avoid a constitutional decison?
    1) When there is no issues in controversy (no confilct)

    2) When the complaintant cannot show injury byt the statute in question

    3) When the issue isn't ripe and the SC doesn't feel the issue has arisen yet

    4) When the decision requires a ruling broader than the facts of the case

    5) When the compalint can be resolved in a non-constituional manner

    6) When the complainant benefited from the statute it now argues is unconstitutional
  71. EP: Exam Tip
    • For EP questions, identify:
    • 1) the type of discrimination

    2) identify and/or apply the level of scrutiny attached to that discrimination
  72. EP: Standard of Review: Rational Basis (RB)
    * Applies to all classifications not falling under strict or intermediate scrutiny: ( age, disability, alienage, sexual orientation, povery, wealth, disability, need for necessities of life)

    Will be the level of scrutiny in situations of disparate impact. (ex-disproportionate test scores)

    • P must show:
    • 1) that the measure being challenged serves no legitimate Gov interest, OR
    • 2) Is not rationally related to any legitimate interest

    • Exceptions:
    • 1)The test was adopted to achieve the dispoprotionate effect (everyone knew and it was their intentions)

    2) Neutral standard, but applied in a discrim way (intentional race discrim)

    *Gov almost always wins
  73. EP: Standard of Review: Intermediate scritin
    Gov must show that reg is substantially related to further an important state interest

    Applies to: sex and illegitimacy

    * Least restrictive means not required
  74. EP: Standard of Review: Strict Scrutiny (suspect classes)
    HARDEST test: Gov must show measure is necessary to further a compelling state interest, narrowly tailored (Gov usually loses)

    Applies to: Race , national origin
  75. Suspect classes: Racial Discrimination
    1) State laws prohibiting interacial marriage or cohabitation unconstn (facially discrim)

    2) De jure segregation almost always unconstn (purpose to separate)

    • 3) School segregation:
    • - De jure segregation may pass strict scrutiny when:
    • 1) Good reason for segregation (race riots)

    2) Affirmative Action
  76. Suspect classes: Alienage (citizenship)
    If by Congress= RB
  77. Suspect classes: Public Functions Exception
    - Discrim ok if position is national governanance (teachers etc...)

    - If purely adminsterial, the job must be open to all persons
  78. Suspect classes: Illegal Aliens
    Not a protected group.

    - Diff treatment ok if rationally related to state interest (RB)

    • Exception:
    • 1) Children of illegal aliens are given intermediate scrutiny
    • 2) If state action will have effect on policy (immigration) because Fed Gov has power over immigration

  79. Suspect classes: Ilegitimacy
    • Intermediate Scrutiny
    • - Question on illegitamcy will probably be unconstitutional (serves no important gov interest)

  80. Suspect classes: Sex
    Law that treat men and women differently must meet intermediate scrutiny
  81. Exam tip: Sex discrimination: Unsettled areas of the law
    • If the exam asks a question in an area that is not settled, then state:,
    • “The Court seems to be focusing on the question of whether the discrimination is motivated by or
    • reinforces traditional stereotypes about appropriate sex roles.”

    If the discrimination is motivated or reinforced by such stereotypes, it will most likely be unconstitutional.
  82. Affirmative Action
    Strict Scrutiny (1)compelling; 2)necessary; 3) narrowly tailored)

    • 2 Compelling interest:
    • 1) Remedy own past acts of racial discrim in general area where discrim (not general publ area)

    2) Achieving a diverse student body in higher education (College and beyond ONLY)

    - Race can only be a factor ( cannot have a fixed weight (quotas= unconstn)

    - Voluntary intergration and Racial Balanceing- unconstn

    Gender based AA= Intermediate scrutiny (1)substantially related; 2) important Gov interest

    *GR- Sex based AA is ok even if you're making up for general public discrim- need not be own past history of discrim
  83. EP challenges
    1) RB = age, alienage, disability, sex orientation, wealth, all else

    2) IS= gender, illegitimacy, undocumented, alien children

    3) StrS= alienage, domestic travel, national origin, race, voting
  84. Priv & Immunities under 14A
    • Limited application, includes the right to:
    • 1)Travel
    • 2)Petition Congress
    • 3)Vote for Fe offices
    • 4)Assemble
    • 5)Enter public lands

    *Corporations are not protected under the 14A P & I clause
  85. Priv & Immunities under Artile IV, Section 2
    (Comity Clause)
    Prohibits states from discriminating against non-residents w/ respect to rights and activities that are fundamental to the national union (visitors cannot be discrim against)

    • Following have been held invalid:
    • 1) Require non-residents to pay higher fee for commercial license
    • 2) Impose commuter taxes on non-resident (but not resident)
    • 3) Restrictions on abortions
    • 4) Restrictions on hiring

    • The following discrimination have been upheld:
    • 1) Recreational licenses
    • 2) Preserve in-State resources

    Test: State can discriminate if substantially related to important state interest (IS)

    • *Corporations cannot assert these rights (corps can use DCC)
    • * Discrimination against citizens or residents in regard to an essential economic right or liberty triggers Art IV P & I protection (general economic discrim against a business is more often viewed using the commerce clause)
  86. Contract Clause
    No state shall pass any law impairing the obligation of Ks (Art I, section 10)

    • In determingin whether a K may be modified, the Court will balance:
    • 1) Severity of impairment/K rights
    • 2) Importance of interest
  87. Ex Post Facto Laws

    Article I, section 9, clause 3 &
    Article I, section 10, clause 1
  88. In general, a statute retroactively alters the crim law if it:
    • 1) Criminalize an act that was not a crime when committed
    • 2) Increase punishment after crime is committed
    • 3) Reduce the evidentary burden (for easier conviction)
    • 4) Extend SOL that has already expired (if not expired, extension OK)
  89. Bill of Attainder
    A bill of attainder is a legislative punishment that punishes designated named persons/groups for past conduct w/out a trial
  90. 1A: Freedom of Religion & Separation of Church and State
    1A applies to both Fed Gov (all branches) and the states through 14A
  91. 1A: Establishment Clause
    Where a Gov program prefers one religion over others, strict scrutiny will apply
  92. 1A: Esablishment Clause- "Lemon Test"
    • Where the statute is neutral on its face, the SC will follw the "Lemon Test":
    • 1) The statute must have a secular purpose
    • 2) The primary effect or purpose must neither advance nor inhibit religion
    • 3) The statute must not foster an excessive government entanglement w/ relgion
  93. 1A: Esablishment Clause- Religious activities conducted @ public schools
    GR, religious activities conducted in public schools violate the establishment clause

    • The following practices have been held invalid:
    • 1) School prayer (per se invalid)
    • 2) Moment of silence for meditation or voluntary prayer (especially if past history of prayer time)
    • 3) Posting 10 commandments in walls of school
    • 4) Sponsoring cleric @ graduation
    • 5) Student lead prayer @ the beginning of sports event (especially if past history of prayer)

    *Religious club holding its meetings in a public school does not violate the EC (Because Gov makes property available to all orgs-
  94. 1A: Tax Deductions for Religious institutions
    1) GR= Treat everyone the same. E.g. all non-profits v. all religious non-profits

    *Tax exemption from sales and use taxes available only for the sale of religious mags and books violates the ES
  95. 1A: Gov Aid to Religious Schools
    • The state can provide money to public & private schools for:
    • 1) Secular text books
    • 2) Standard secular exams
    • 3) School lunches
    • 4) Library, media materials, computers
    • 5) Interpreters for deaf students
  96. 1A: Other Gov Endorsement of Religion
    • 1) Santa and candy canes are not religious
    • 2) City can give license permitting private group to hang a cross on public property
    • 3) Placement of 10 commandments on the walls of courthouse--> unconstitutional if standing alone
    • 4) Sunday closing laws OK (secular purpose- encourage rest/ promote health)
    • 5) Delegation of authority to religious orgs unconstn ( power to give liquor license not OK)
  97. 1A: Free Exercise Clause
    Religious beliefs are absolutely protected. Gov may not punish a person by denying benefits or imposing burdens based on religious beliefs

    • 1) Gov can't determine truth or falsity of a person's relgious beliefs, but it may determine a persons sincerity
    • 2) Where conduct is motivated by her regligious beliefs, the state may regulate or prohibit the activity if the regulation is neutral in respect religion and is of general applicablity ( Exception- laws passed for the purpose of targeting religion)

    • Other applications upheld:
    • 1) State law against polygamy
    • 2) Airforce headgear regulations
    • 3) Social security taxes (Amish)

    • * 2 Exceptions:(religious beleiver will win)
    • 1) Saturday Sabbath (refusing to work on Saturday)
    • 2) Amish children don't have to go to highschool because conflict w/ beliefs
    • *Distinguish beliefs from conduct
  98. 1A: Feedom of Expression
    "Congress shall make no law... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

    - GR: Speech clause stops the Gov from distoring the marketplace of ideas (especially w/ poliitical speech)

    * Extended to states by 14A
  99. 1A: Freedom of Expression- Strict Scrutiny
    • The Gov will face strict scrutiny if it engages in content-based discrimination (compelling state interest)
    • 1) Form of discrim where censorship will take place
    • 2) Even more obvious form of his is viewpoint discrimination

    • Examples:
    • 1) Gov cannot prohibit deseration of the American flag. (political protest)
    • 2) Gov can't prohibit political speech in the park
    • 3) Gov can't prohibit speech critical to foreign Govs near embassies (viewpoint discrim)
  100. 1A: 5 exceptions to the freedom of expression
    • 1) If the government passes strict scrutiny (kiddie porn, even fake)
    • 2) Conduct regulation
    • 3) Unprotected speech (low level speech)
    • 4) Time, place and manner
  101. 1A: Freedom of expression- Conduct Regulation (Intermediate Scrutiny)
    • Law that regulates conduct, creating incidental burden on speech, allowable if:
    • 1) Furthers important/substantial Gov interes that is unrelated to the suppression of free speac, and (focus on stopping act)
    • 2) The incidental burden is no greater than necessary to serve the interest

    - It's consitutional for the Gov to restrict people from burning military draft cards
  102. 1A: Freedom of Expression- Goverment as Speaker
    • The Gov can say whatever they want
    • Examples:
    • 1) Gov prohibited Drs in Gov clinics from discussing abotion w/ patients (constn)
    • 2) Gov could not prohibit gov-funded lawyers from bringing a claim challenging wellfare (unconstn) ( lawyers speak on behalf of clients, No content control)
  103. 1A: Freedom of Expression- Unproteccted speech
    A regulation which relates to unprotected speech only must past rational basis. (reasonably related to legitimate Gov interest)
  104. Unprotected Speech: Advocates violence or unlawful action
    Subjective person's intent, and objective imminent unlawful action

    1) A speaker who yells to a loud angry crowd to go smash the windows at starbucks may be punished

    2) A speaker who does the same, but at a later time will not be punished (no imminence)
  105. Unprotected Speech: Fighting Words
    Utterance of words likely to incite an immediate violent reaction

    1) Words must be more than annoying , offensive or inflammatory. Has to be a direct personal insult

    2) Subject to facial invalidity if the conduct prescribed if vague or overbroad
  106. Unprotected Speech: Hostile Audience Speech
    Speech that illicit an imminent violent response by audience. (insults a crowd)

    1) Police have to try to calm the crowd down before arrest
  107. Unprotected Speech: Obscene Speech
    • For speech to be considered obscene, "Miller Test" must be satisfied:
    • 1) Work appeals to a prient interest (local standard)

    2) Works depicts specifically sexual conduct (per statute) in a patently offensive way (local standard)

    3) Work as a whole lacks SLAP (serious, literary, artistic, political value
  108. Unprotected Speech: Defamatory Speech
    Restrictions apply to DS where the P is either a public official or figure, or where the DS involves a matter of public concern
  109. Unprotected Speech: Defamatory Speech
    Private person
    1)When P is a private person and the subjec of the statement is purely private concern (S/Lo need not show recklessness)

    • 2) When P is a private peson & the subject of the statement is a matter of public concern P must show negligence
    • 3) If private P sues a media D for false0light invasion of privacy, concerning a matter of public interest has to show actual malice
  110. Unprotected Speech: Defamatory Speech
    Public Official
    3) If a P is public official, P must prove actual malice (knowledge of the falsity or reckless disregard for truth) (public or private matter)
  111. Commercial Speech
    Protected speech if it's not false or deceptive and does not relate to unlawful activity.

    • Gov regulation must satisfy (Intermediate Scrutiny):
    • 1) Regulation serves substantial Gov interest
    • 2) Regulation directly advances the Gov interest
    • 3) Regulation is no greater than necessary
    • 1) State cannot:
    • a. place a ban on the advertisment of drug prices
    • b. prohibit attornesy from advertising legal services
    • State can:
    • -state can prohibit in-person solicitation by lawyers
    • - Unsafe/Ugly billboards
  112. Sexual or Indecent Speech (not obscenity)
    Reg of sexual speech must serve a substantial Gov interest, and leave open reasonable alternative channels of communication

    • - City can impose zoning restrictions on strip clubs
    • - A ban on public nudity, including stripping in a strip club, was held constitutional
  113. Time, Place, Manner
    R regulation of time, place, or manner of speech is allowed (public acrea and places historically associated w/ expressive conduct [picketing, broadcasting])

    • 3 Part test:
    • 1) Content neutral
    • 2) Narrowly tailored to serve important Gov interest
    • 3) Leave open alternative channels of communication

    • * Speech related ativities @ non-pub forums (Gov workplaces) can be regulated by R TPM regulations. Test:
    • 1) Reasonable related
    • 2)Legitimate Gov interest

    -TV stations can exclude candidate from debate

    • *If a public schools opens up as public forum, can't discrim
  114. TPM: Examples
    • 1. State cannot require marchers to pay for police protection
    • 2. State can require that large gathering obtain permits. Statute must give clear guidelines
  115. Prior restraint
    When Gov blocks speech before it's published/uttered.

    1)Strong presumption against the constn validity of any system of prior restraint of expression

    • Exceptional cases where prior restraints are allowed:
    • 1) Military classifications (national security)
    • 2) Pre-publication review of Gov employees writing (national security)
  116. Censorship
    • Statute must be:
    • 1) Narrowly and reasonable standards
    • 2) Immediate injunction sought
    • 3)Burden on the censor
    • 4)Prompt judicial ruling
  117. General Approach to Essay
    • 1) Jurisdiction
    • 2)State Action
    • 3)Which Gov-State or Fed?
    • - Fed need authority to act first, but state--> jump right to individual right.
  118. State limits on special events
    Stat can limit activities to those which are consonant w/ the day's events
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Con Law MBE
2011-06-15 23:59:49
bar exam

Con Law Mbe
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