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267 Cards in this Set
- Front
- Back
Article III grants what types of authority?
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The authority for review of federal laws and executive actions
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The authority for review of state courts and state government actions
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4 justiciability doctrines
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Standing, ripeness, mootness, political question
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Standing requirements
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1.
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2.
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causation and redressability
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3.
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no 3rd party standing
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4.
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no generalized grievances
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Injury types and requirements
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Plaintiffs only may assert injuries that they personally have suffered
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Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm
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Causation and redressability
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*Plaintiff must show that defendant caused injury so that a favorable court decision is likely to remedy the injury
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Exceptions to 3rd party standing
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1.
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2.
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Exception: third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights(Criminal defendants have third party standing to raise rights of prospective jurors to be free from discrimination in juror selection)
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3.
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Exceptions: an organization may sue for its members, if –
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No generalized grievances – rule and exception
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1.
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2.
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Exception: taxpayers have standing to challenge government expenditures as violating the Establishment Clause (Very narrow exception – taxpayers lack standing to challenge governmental property grants to religious institutions)
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Ripeness OR May federal court allow pre-enforcement review of statute or regulation?
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The fitness of the issues and the record for judicial review
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Mootness – Rule and Exception
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Events after filing of the lawsuit end the plaintiffs the case shall be dismissed as moot
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1.
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Exception: wrong capable of repetition but evading review
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2.
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Exception: voluntary cessation
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3.
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Exception: class action suits
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What is a political question and give examples
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Allegations of constitutional violations that court will not get involved in:
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The "republican form of government clause"
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The process for ratifying constitutional amendments
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Challenges to the President’s conduct of foreign policy
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Challenge to Carter’s recession of a treaty
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Challenges to the impeachment and removal process
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Independent and Adequate State Grounds
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*If a state court decision rests on 2 grounds, one state and one federal, if the Supreme Court’s reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it
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Fed. Courts won’t hear suits against states BUT will hear:
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1.
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2.
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Waiver is permitted
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3.
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States may be sued pursuant to federal laws adopted under section 5 of the 14th amendment. Congress cannot authorize suits against states under other congressional provisions
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Abstention
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Have jurisdiction but will not exercise it
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Exceptions to no federal police power
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MILD: Military, Indian Lands, Lands (federal) and District of Columbia
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Necessary and proper clause
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*Congress may take all actions to carry out authority
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Taxing and spending power
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Congress may tax and spend for the general welfare BUT
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Commerce Power
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1.
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2.
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Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
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3.
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Congress may regulate activities that have a substantial effect on interstate commerce
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10th amendment
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Congress cannot compel state regulatory or legislative action
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Congress can not force states to administer federal mandate
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Congress can put strings on grants so long as conditions are explicitly stated
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Congress may prohibit harmful commercial behavior by state government
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Congress’ power under §5 of the 14th Amendment
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Congress may not expand the scope of rights under §5 of the 14th Amendment: Congress only may provide additional remedies for rights recognized by the courts
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Delegation of powers
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No limit exists on congress’ ability to delegate legislative power to executive agencies or even to the judiciary BUT Legislative veto and line item veto are unconstitutional and Congress may not delegate executive power to itself or its officers
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Treaties
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Treaties are agreements between the US and a foreign country that are negotiated by the President and are effective when ratified by the Senate
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1.
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Treaties prevail over conflicting state laws
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2.
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If a treaty conflicts with a federal statute, the one adopted last in time controls
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3.
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If a treaty conflicts with the US Constitution it is invalid
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Executive Agreements
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Definition – an executive agreement is an agreement between the US and a foreign country that is effective when signed by the President and the head of the foreign nation, Do not require Senate approval, Executive agreements can be used for any purpose, Never has any agreement been invalidated
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Appointment Power
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Congress may vest the appointment of inferior offices in the President, the heads of departments or the lower federal courts
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Congress may not give itself or its officers the appointment power
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Removal Power
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Unless removal is limited by statute, the President may fire any executive branch office.
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1.
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For Congress to limit removal, it must be an office where independence from the President is desirable
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2.
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Congress can not prohibit removal of cabinet members
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3.
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Where Congress cannot prohibit removal, it can limit removal to where there is good cause
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Impeachment and Removal
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The President, the Vice president federal judges and officers of the United States can be impeached and removed from the office for treason or for high crimes and misdemeanors
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President – 1 immunity, 1 privilege and 2 powers
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The President has executive privilege for the presidential papers and conversations, but such privilege must yield to other important governmental interests
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The President has power to pardon those accused or convicted of federal crimes
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Commander in Chief – leader of armed forces
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Preemption
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3 types:
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1.
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express preemption
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2.
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implied preemption
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3.
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states may not tax or regulate federal government activity
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Implied preemption
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1.
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2.
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If state law impedes the achievement of a federal objective, federal law preempts state law
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3.
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If Congress expresses a clear intent to preempt state law, federal law preempts state law
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Dormant commerce clause definition
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State and local laws are unconstitutional if they place an undue burden on interstate commerce
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The privileges and immunities clause of Article IV
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Anti discrimination provision which
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The privileges or immunities clause of the 14th amendment
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Always a wrong answer unless the question involves a right to travel
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Analysis if the state law does not discriminate
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If the law burdens interstate commerce, it violates the dormant commerce clause if it burdens exceed its benefits
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Analysis if the law discriminates against out of staters
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If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose
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State and local taxation of interstate commerce
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1.
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2.
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A state may only tax activities if there is a substantial nexus to the state
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3.
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State taxation of interstate businesses must be fairly apportioned
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Which statutes may be used by Congress to apply constitutional norms to private conduct?
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1.
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2.
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The commerce power can be used to apply constitutional norms to private conduct
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3.
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Congress cannot regulate private conduct through §5 of the 14th Amendment
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Exceptions where private conduct must comply with constitution
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** The public function exception. The Constitution applies if a private entity is performing a task traditionally exclusively done by the government
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Application of Bill of Rights
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The Bill of Rights applies directly only to the federal government
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Amendments NOT incorporated
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2nd amendment right to bear arms
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Rational basis test
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Rationally related to a legitimate government purpose
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Intermediate scrutiny
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Substantially related to an important government purpose
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government has burden of proof
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Only look to actual goal that court finds
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Uncertain if least restrictive alternative analysis is a necessity here
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Strict scrutiny
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Upheld only if necessary to compel a vital government interest
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government has burden of proof
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means must be necessary – least restrictive alternative IS used here
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most exacting review
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Procedural Due Process Definitions
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2.
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a deprivation of property occurs if there is an entitlement (reasonable expectation to continued receipt of a benefit) and the entitlement is not fulfilled (year-to-year contract does not give you due process)
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Is government negligence sufficient to state a claim under due process clause?
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Generally there must be intentional government action or ate least reckless action for liability to exist. However, in emergency, government is liable under due process only if conduct shocks the conscience
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Is failure to protect give rise to claim?
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Generally the government’s failure to protect people from privately inflicted harms does not deny due process
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Test for procedure required under due process
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1.
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2.
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the ability of additional procedures to increase the accuracy of the fact finding
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3.
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government interest in administrative efficiency (cost factor)
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Examples of when procedure is required
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When SS disability benefits are terminated there must be a POST termination hearing
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3.
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When a student is disciplined by a public school there must be notice of the charges and an opportunity to explain
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4.
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Before parent’s right to custody of a child can be permanently terminated there must be notice and a hearing
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5.
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Punitive damages require instructions to jury and judicial review to ensure reasonableness
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6.
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except in exigent circumstances, prejudgment attachment and seizure of assets requires notice and a hearing (does not require an innocent owner defense to government forfeiture)
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Substantive due process definition
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Is there an adequate reason for the government violating the persons life, liberty, or property?
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protection for economic liberties
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Only a rational basis test is used for laws affecting economic rights
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5th Amendment Takings Clause Test
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1.
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2.
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Is it for public use? So long as government act of reasonable belief that taking will benefit the public (HHA v. Midkiff)
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3.
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is just compensation paid? Measured in terms of loss to the owner in reasonable FMV terms
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Dollan Test for benefit compared to burden
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government conditions on development use of the property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking (Dollan v. City of Tigard)
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Contracts Clause
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1.
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2.
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State and local government's may interfere with private contracts must meet intermediate scrutiny TEST: Substantial impairment of contract rights; Reasonably and narrowly tailored means of promoting an important and legitimate public interest
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3.
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State or local interference with government contracts must meet strict scrutiny
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4.
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The ex post facto clause does not apply in civil cases. Retroactive civil liability only need meet a rational basis test
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Privacy umbrella – fundamental rights
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1.
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2.
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the right to procreate
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3.
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the right to custody of one’s children
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4.
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the right to keep the family together
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5.
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the right to control the upbringing of one’s children
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6.
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the right to purchase and use contraceptives
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7.
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the right to abortion
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8.
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the right to refuse medical treatment
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9.
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NO right to physician-assisted suicide
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10.
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No right to private, consensual homosexual activity
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The right to abortion includes:
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1.
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2.
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The government has no duty to subsidize abortions or provide abortions in public hospitals
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3.
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Spousal consent and notification laws are unconstitutional
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4.
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Parental notice and consent laws for unmarried minors. A state may require parental notice and/or consent for an unmarried minor’s abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor’s best interest or that she is mature enough to decide for herself
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The right to refuse medical treatment
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1.
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2.
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A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended
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3.
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A state may prevent family members from terminating treatment for another
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approach to equal protection questions
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What is the classification?
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Constitutional provisions concerning equal protection
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*The equal protection clause of the 14th amendment applies only to state and local governments (Never applies to federal government)
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Test for racial classifications
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Use strict scrutiny
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How is the existence of a racial classification proven?
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If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent (Discriminatory impact alone is not enough)
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Example: discriminatory use of preemptory challenges denies equal protection
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How should racial classifications benefiting minorities be treated?
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1.
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2.
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Numerical set-asides require clear proof of past discrimination
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3.
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Educational institutions may use race as one factor in admissions decisions to help minorities
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4.
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Seniority systems may not be disrupted for affirmative action
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Gender Classifications
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Intermediate scrutiny should be used – must have exceedingly persuasive justification for the classification
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How is the existence of a gender classification proven?
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If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent
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Example – discriminatory use of preemptory challenges denies equal protection
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How should gender classifications benefiting women be treated
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Gender classifications benefiting women that are based on role stereotypes will not be allowed
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Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed
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Alienage Classifications
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Only a rational basis test is used for alienage classifications that concern self government and the democratic process (voting, jury, being a police officer, teacher, or probation officer, but for notary public – strict scrutiny)
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Only a rational basis test is used for Congressional discrimination against aliens
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It appears that intermediate scrutiny is used for discrimination against undocumented alien children
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Discrimination against non-marital children
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Laws that deny a benefit to all non-marital children but grant it to all marital children are unconstitutional
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Rational basis review is used for all other types of discrimination under the Constitution
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1.
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2.
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disability discrimination
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3.
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wealth discrimination
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4.
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economic regulation
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5.
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sexual orientation discrimination
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The right to travel
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Durational residency requirements must meet strict scrutiny (50 days is the longest durational residence requirement)
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Restrictions on foreign travel need meet only the rational basis test
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The right to vote
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One person-one vote must be met for all state and local elections
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At large elections are constitutional unless there is proof of a discriminatory purpose
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The use of race in drawing election district lines must meet strict scrutiny
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The right to education
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There is NO fundamental right to education
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Content based v. content neutral restriction
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1.
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2.
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Subject matter restriction (ability to engage in speech depends on its topic)
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3.
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Viewpoint restriction (Depends on the ideology of the message)
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Prior restraint
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Court orders suppressing speech must meet strict scrutiny. Procedurally proper court orders must be complied with until they are vacated or overturned (collateral bar rule – violation of ct order stops person from challenging constitutionality of order)
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Gag orders on press to stop prejudicial pretrial publicity will not be allowed
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The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review
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Vagueness definition
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Vagueness – a law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted
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Overbreadth definition
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Overbreadth – a law is unconstitutionally overbroad if it regulates substantially more speech that the constitution allows to be regulated
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Fighting Words
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Fighting word laws are unconstitutionally vague and overbroad (words directed at another trying to get a violent response)
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Symbolic Speech
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The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve to the government’s purpose (example – killing of bar examiner)
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Examples of symbolic speech
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draft card burning = not protected
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3.
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nude dancing = not protected
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4.
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burning cross or painting a swastika = protected
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5.
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penalty enhancements = constitutional
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6.
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contribution limits = constitutional
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7.
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expenditure limits = unconstitutional
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Anonymous speech
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PROTECTED by the constitution
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Unprotected/Less speech
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1.
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2.
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obscenity and sexually-oriented speech
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3.
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commercial speech
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4.
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defamation
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5.
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privacy
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Incitement test
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1.
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2.
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Directing at causing illegality
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Obscenity Test
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2.
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The material must be patently offensive under the law prohibiting obscenity
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3.
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Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value
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Obscenity application – what can government do to fight against it ?
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Child pornography may be completely banned, even if not obscene
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The government may not punish private possession of obscene, but the government may punish private possession of child pornography
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The government may seize the assets of businesses convicted of violating obscenity laws
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Profane and indecent speech is generally protected by the First Amendment
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Exceptions: Over the broadcast media (TV and radio not cable) because it is uniquely intrusive into the home and in schools
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Commercial speech
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1.
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2.
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True commercial speech that inherently risks deception can be prohibited
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3.
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Other commercial speech can be regulated if intermediate scrutiny is met
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4.
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It is unclear whether government regulation of commercial speech must use the least restrictive alternative
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Inherently dangerous commercial speech that can be regulated
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The government may prohibit attorney in person solicitation of clients for profit
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The government may not prohibit CPA in person solicitation of clients
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Defamation – plaintiff public official or running for office
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Have to prove falsity of the statement and actual malice to recover damages
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Defamation – public figure
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Those who thrust themselves in the limelight; access to the media; must prove falsity and actual malice
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Defamation – private figure and public concern matter
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Plaintiff has to prove falsity of the statement and negligence to get compensatory damages; BUT to get presumed or punitive damages – have to show actual malice
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Defamation – private figure and private concern matter
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Can recover presumed or punitive damages without proof of actual malice (don’t know standard of liability or who has burden of proof)
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Privacy speech
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The government may limit its dissemination of information to protect privacy
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Public forums
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Places where government must make available for speech
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How can government regulate public forums?
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1.
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2.
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Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication
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3.
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Government regulation of public forums need not use the least restrictive alternative
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4.
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City officials cannot have discretion to set permit fees for public determination
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Limited/designated public forums
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Government could close to speech but chooses to voluntarily open the forum to the speech SO if government has opened it the government has to follow the rules of public forum
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Non public forums
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Government properties the government can and does close to speech; regulation must be reasonable and viewpoint/content neutral
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Examples of non-public forums
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Areas outside prisons and jails
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Advertising space on city buses
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Sidewalks on post office property
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Airports
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Candidate debates on sponsored by government owned media outlets
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Freedom of association – types of unconstitutional laws
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Laws that require disclosure of group membership, where such disclosure would chill association must meet strict scrutiny
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Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity
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To punish membership in a group government MUST prove
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To punish membership in a group it must be proven that the person:
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1.
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Actively affiliated with the group
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2.
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Knowing of its illegal activities and
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3.
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With the specific intent of furthering those illegal activities
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Free exercise clause application
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1.
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2.
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The free exercise clause cannot be used to challenge a law of general applicability unless the law is motivated by a desire to interfere with religion
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3.
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The government may not deny benefits to individuals to those who quit their jobs for religious reasons
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Establishment Clause Test
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1.
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2.
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The effect must be neither to advance nor inhibit religion
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3.
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There must not be excessive entanglement with religion
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Establishment clause application
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1.
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2.
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Government sponsored religious activity in public schools is unconstitutional. But religious student and community groups must have the same access to school facilities as non-religious groups
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3.
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The government may give assistance to parochial schools, so long as it is not actually used for religious instruction
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Article III grants what types of authority?
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1. The authority for judicial review
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4 justiciability doctrines
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Standing requirements
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Injury types and requirements
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Causation and redressability
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Exceptions to 3rd party standing 1. Exception: third party standing is allowed if there is a close relationship between the plaintiff and the injured third party (Doctor-patient for abortion rights, Barkeeper-customer law)
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No generalized grievances – rule and exception
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Ripeness OR May federal court allow pre-enforcement review of statute or regulation?
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Mootness – Rule and Exception
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Appointment Power • The president appoints ambassadors, federal judges and officers of the US
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Senate must confirm
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** Impeachment by the House of Reps requires a majority vote
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conviction in the Senate 2/3 vote
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Procedural Due Process Definitions 1. A deprivation of liberty occurs if there is the loss of a significant freedom provided by a statute (before civil commitment
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parent institutionalize child – screening by neutral fact finder
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Dollan Test for benefit compared to burden government conditions on development use of the property must be justified by a benefit that is roughly proportionate to the burden imposed
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otherwise it is a taking (Dollan v. City of Tigard)
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Contracts Clause 1. Applies only to state or local interference with existing contracts (Never applies to federal government
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Only if interfering with already existing contracts)
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2. State and local government's may interfere with private contracts must meet intermediate scrutiny TEST: Substantial impairment of contract rights
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Reasonably and narrowly tailored means of promoting an important and legitimate public interest
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The right to abortion includes: 1. Prior to validity, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. After viability, states may prohibit abortions unless necessary to protect woman’s health or life (24hr waiting period is not an undue burden
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requirement of abortions by licensed physicians is not undue burden
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Defamation – public figure Those who thrust themselves in the limelight
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access to the media
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Defamation – private figure and public concern matter Plaintiff has to prove falsity of the statement and negligence to get compensatory damages
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BUT to get presumed or punitive damages – have to show actual malice
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Non public forums Government properties the government can and does close to speech
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regulation must be reasonable and viewpoint/content neutral
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