Constitutional Law

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Author:
mustgofaster
ID:
91243
Filename:
Constitutional Law
Updated:
2011-07-10 23:59:51
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Washington Bar Exam Constitutional Law
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Constitutional Law
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  1. Standing
    Plaintiff must show a personal injury caused by Defendant that can be redressed by requested relief.

    Organizational Standing: 1 or more members w/ personal standing & Nexus

    WA: standing when claim involves serious public interest affecting substantial portion of population.
  2. State Action
    official government conduct or private conduct where there is a significant government involvement with private party.
  3. Procedural Due Process
    Under 14th, government prohibited from intentionally depriving person of life, liberty, or property without due process of the law, including notice and opportunity for hearing before unbiased decisionmaker.

    Mathews test for Nature and timing of hearing: importance of interest involved, risk of erroneous deprivation and extent to which additional safeguards would reduce risk, and burden on gov of providing such safeguards.
  4. Substantive Due Process
    14th prohibits government from burdening the liberty of persons to engage in lawful activities.

    • Fundamental right=strict scrutiny
    • Others= rational basis
  5. Equal Protection
    14th prohibits intentional discrimination against similarly situated persons.

    • Race= suspect class (strict)
    • Gender= Fed, quasi-suspect (intermediate). WA, suspect (strict)
    • Fundamental right= strict
  6. Levels of Review
    • Rational basis= rationally related to legitimate interest
    • Intermediate= substantially related to important interest
    • Strict scrutiny= narrowly tailored to achieve compelling interest
  7. Ripeness
    Existing dispute that threatens immediate and substantial hardship to P.
  8. Mootness
    Real and live controversy must exist throughout lawsuit.

    Exceptions: controversies capable of repetition but evading review, class actions
  9. Takings Clause
    5th and 14th prohibit gov from taking private property without just compensation. More drastic reduction in value to objectively reasonable person, more likely taking.

    Possessory (invasion) and regulatory (no economic value).

    Just compensation=FMV at time of taking.

    Emergency exception.
  10. Contract Clause
    Regs cannot substantially interfere with obligations of existing contracts.

    • Private= intermediate
    • Public= strict (COI)
  11. Content based vs. Content neutral regulation
    • Content based restrictions on subject matter or viewpoint of speech must meet STRICT.
    • Content neutral that burden expressive content generally-INTERMEDIATE.
  12. Prior Restraints
    Prevents speech before it occurs, generally must meet strict. Licensing and permitting authorities must operate under narrowly drawn and clear standards (no discretion) and prompt opportunity for review of denial.

    WA: interpreted to forbid all prior restraints.
  13. Vagueness, Overbroad, Unduly Discretionary
    • Void for vaguess- reaasonable person cannot tell from terms of law what is prohibited/permitted
    • Overbroad- affects substantially more speech than necessary to serve interest.
    • Unduly discretionary- inadequate standards to apply law
  14. Unprotected or less protected speech
    • Incitement of illegal activity
    • fighting words
    • true threat
    • obscenity
    • defamation
    • commercial speech
  15. Time/place/manner regulation
    Gov reg of t/m/p of speech and assembly in traditional public forums or limited public forums is permitted if content-neutral (subject matter and viewpoint) and narrowly tailored to meet important interest, leave alternatives open for communication.
  16. Dormant Commerce Clause
    State/local gov can reg interstate commerce provided that reg does not discriminate against interestate commerce or unduly burden it.

    Discriminatory reg burdening interstate commerce will be upheld if furthers legitimate state interest and burdens do not outweigh benefits to state. STRICT.
  17. Privileges and Immunities
    state/local gov cannot explicity discriminate against out-of-state citizens as to important economic activities or civil liberties.
  18. Freedom of Expression
    Fundamental right of free speech is protected from governmental infringement under 14th.

    WA Con. provides that citizens may speak, write, and publish on all subjects.
  19. Establishment Clause
    1st Amendment (applied to states through 14th) forbids state or local government from discriminating against or granting a preference to a particular religion/s.

    Nondiscriminatory regulation must meet Lemon test: serve a secular purpose, its primary effect must not advance or inhibit religion, it must ot create excessive government entanglement with religious administration/bureaucracy.
  20. Free Exercise Clause
    Right to free exercise does not relieve the individual of obligation to comply with valid and neutral law of general applicability. A neutral law may thus incidentially burden religious practices but laws targeting religious practices or beliefs for adverse treatment are not permissible absent compelling reason.

    In WA: coercive effect must meet strict.
  21. Obscenity
    Material that, taken as a whole by the average person applying contemporary community standards, appeals to the prurient interest in sex, portrays sex in a patently offensive way, and lacks serious scientific, artistic, political, or literary value under a national reasonable person standard.
  22. Freedom of the Press
    General regulations or taxes imposed on a business apply to media as well. Special regs must meet SS.

    Media may publish info originally obtained unlawfully if truthful and matter of public conern, media did not unlawfully obtain or know who did, and original speak had reduced expectations of privacy.
  23. Necessary and Proper
    Enable Congress to make all laws appropriate to futher any power that Constitution grants to any branch of Fed. gov (supplemental to enumerated power).
  24. Commerce Power
    Congress may regulate channels of interstate commerce, person and instrumentalities in IC, and activities that have substantial effect on IC.
  25. Supremacy Clause
    Federal law controlling if Congress has clearly stated intention to preempt state laws.

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