Bar Flashcards

Front 1

Gender Classification: What level of scrutiny applies? & How do you prove Discrimination? ------

Back 1

Intermediate
Scrutiny & Govt Gender Discrim Allowed only if Exceedingly Persuasive Justification

Classification exists on face of
law: craig v. boren: underage drinking
disparity. US v. Virginia. If Law is Facially Neutral: Show Discrim Impact & Discrim Intent.

Front 2

How should gender
classifications benefiting women be treated?

Back 2

Gender classes benefiting
women based on role stereotypes not allowed. In divorce, women always get alimony, men don’t. based on stereotypes=
unconst. (economically dependent women stereotype)

Gender classifications
designed to remedy past discrimination and differences in opportunity will be
allowed. Ssn uses different formula to calculate benefits for F vs M, ok b/c
wage discrimination.

Front 3

Equal Protection Approach

Back 3

1. Approach
To Equal Protection:



1. 1. What
is the classification
2. 2. What
level of Scrutiny should be applied
3. 3. Does
this law meet the level of scrutiny.

Front 4

1. Constitutional
Provisions Concerning Equal Protection:

Back 4

1. Equal
protection clause of the 14th Amendment ONLY applies to
State/Local. NEVER Federal.
2. Equal
Protection IS applied to Federal govt through Due Process Clause of 5th
Amendment.

Front 5

1. Classifications
Based on Race and National Origin:
2. Standard and Proving Racial Classification?

Back 5

A. classification
exists on the face of the law? Blacks
cannot serve on juries.
B. If
the law is facially neutral, proving racial classification by both: Discriminatory
Impact + Discriminatory Intent. Washington v. davis. Blacks failed
police academy test.

Front 6

How
should racial classifications benefiting minorities be treat

Back 6

1. Strict Scrutiny.
2. Numerical Set asides require proof of past discrim.
3. Schools may use race as a factor in admission to help minorities.
4. public schools may not use race as a factor in assigning students w/o strict scrutiny.

Front 7

*Alienage Classifications*:
What Standards are used?

Back 7

Generally = Strict Scrutiny
Exceptions:
Rational Basis= Alienage based on self- govt and democratic Process: Voting/ Jury/Police/Teacher/ Probation officer.
Rational Basis if Congress Discrimiating on Aliens.
Intermediate Scrutiny for Undocumented Alien Children.

Front 8

Descrimination against non marital children:
what level of scrutiny is used?

Back 8

1. Intermediate
Scrutiny.
2. Laws
denying benefit to all non marital children, but grant it to marital
children, are unconstitutional. State:
only marital children can inherit from fathers, unconst.
3. harder
case: laws denying to some marital children. For non marital children to
inherit, paternity must be established during dad’s life time. Upheld.

Front 9

Classifications Using only Rational Basis Review:

Back 9

Adament Dictators Wear Eloquent Straws:
Age
Disability
Ecomomic
Wealth
Sexual Orientation

Front 10

What are the judiciability requirements

Back 10

Standing: 1. Injury 2 causation & redressibility, 3 not third party. 4. No Generalized Grievance (taxpayer/citizen)
Ripeness: Immediate threat of harm.
Mootness: Live controversy
Not a Political Question
Not an Advisory Opinion
Adequate Independent State Grounds

Front 11

Standing requirements and Exceptions

Back 11

Standing requires:
1. Inury personally suffered, or if injunction must show liklihood of future harm.
2. Causation
3. Not generalized greivance (taxpayer/citizen.
Unless: P challenges a Fed Expenditure (taxpayer ok)
3 no third party standing.
Unless: close relationship
Injured party cannot assert own rights
organization can sue for members.

Front 12

Mootness exceptions requires what?

Back 12

Mootness: live controversy is required for the court ot hear the case.
exceptions:
wrongs capable of repetition but evading review (roe, preggos)
voluntary cessation
class actions ( as long as 1 member still harmed).

Front 13

Supreme Court Jurisdiction (types)

Back 13

Original jurisdiction : all cases affecting ambassadors, public ministers, consuls, State parties.

Appellate Jurisdiction: all cases within federal power.
--> Writ of Ceriorary (most)
--> Appeal (rare cases)

Front 14

Writ of Certiorari (what is it)

Back 14

The Supreme Court has Discretion ot hear cases that come by Certioari. These cases are:

Cases from State Courts, where
i) constiutaionlity of fedearl statute, treaty or state statue is at issue, or
ii) state statute allegedly violates federal law.
OR All cases from Fedearl Courts of appeal.
only after a FINAL JUDGMENT has been made

Front 15

When does COngress Have Authority to Act?

Back 15

DOC PET 14

Delegation Powers

Other powers (postal, coin, immigration, impeachment etc)

Commerce
Police Power, No General, but (Except MILD)
Enumerated Powers
Taxing and Spending
Congress Power under 14th.

Front 16

What are the Enumerated Powers ?

Back 16

Congressional power Expressed or implied by the cOnstition
10th amendment limit on Congressional pweowers
necessary and Proper clause

Front 17

what is the Commerce Power

Back 17

CIA
congress may regulate:
channels of interstate commerce, (hwy)
instrumentalities of interstate commerce (trucks)
Activities substantial effect on commerce

Front 18

Congress' Police Power

Back 18

No General Police Power;
four Exceptions: MILD
Military
Indian reservations
federal lands and teritories
DC

Front 19

Congressional Powers under the 14 th Amendment Section 5

Back 19

Congress cannot create new powers,

Front 20

Necessary and Proper "Power"

Back 20

Congress has th e power to make all laws necessary and proper for executing any power granted to any branch of the government ( but MUST BE LINKED TO ANOTHER FEDERAL POWER.) any answer with only "necessary and proper" is wrong.

Front 21

Taxing power and Spending Power

Back 21

Congress has the power to tax, if it bears reasonable relationship to revenue production, or if Congress has the power to regulate the activity taxed.

Congress may spend to provide for common defense and genearl welfare. (for any pulic purpose)

Front 22

what is Lower Federal Court Review:

Back 22

Federal courts cannot hear suits against State governments (soverign immunity) 11th amendment.

Front 23

what is the Political Question Doctrine:

Back 23

The supreme court cannot hera issues on Four Categories:

1. Republican form of Govt Clause (Rome)
2. Challenges to presidents' conduct of Foreign policy (vientam)
3. Challenges to impeachment and removal process (walter nixon)
4 challenges to party gerrymandering.

Front 24

exceptions to Sovereign Immunity and application

Back 24

Fedearl courts can hear cases in which a state is a party IF:
1. waiver (state says its ok)
2. State can be sued on federal law under 14th Amend. Sec 5.
3. Fed govt can sue states
4. bankruptcy proceedings.
Cases are allowed against State ofificers if:
SO liable for injuctive relief.
SO sued for personal money damages.
SO liability will not be paid by state treasury.

Front 25

Has Congress violated a Limitation on Power?

Back 25

Asked after If congress has authority to act.
State Action
Due process
Equal Protection

Front 26

what are the Federal Executive Powers

Back 26

Foreign Policy: Treaties, Executive Agreement, Troups in foreign country. (political question)

Domestic Powers: Air Pip
Appointment
Impeachment/Removal power.

Executive Privilege over papers and converation (yeilds to govt interest)
Civil Immunity for suits in office
Presidential Pardons for Federal Criminal Liability.

Front 27

State Action: what is it and why does it matter

Back 27

To show constitutional violation.: applies to govt officers at all levels, state/local/federal.
Must be found in seeming private individuals who perform exclusive public functions or have significant state involvement.

Front 28

Heirarchy of US Law

Back 28

US Constitution > Treaties and Federal statutes > executive agreements> state law

Front 29

preemption / supremacy clause : define and relevance

Back 29

The power of states is limited by federal powers.
Express preemption; federal state explicitly says federallaw is exclusive .
Implied preemption:
1. fed/state mutually exclusive fed>state
2. State law impedes federal objective fed> state
3. Congress evidents intent to preempt state Fed> state

Front 30

Privileges and Immunities:

Back 30

Interstate Privileges and Immunities clause prohibits discrimination by a state against nonresidents
- Only Fundamental Rights are protecteed. ( important commercial activities and civil liberrties)
Exception for Substantial justifications for discrim.

Front 31

Dormant Commerce Clause, what is it and when is it used?

Back 31

What is it and when is it used?
state law is unconstitutional if undue bruden on interstate commerce. from purpse power, inferred by SCOTUS, even if contress has not acted. law struck.
who's acting? Congress Acts --> commerce clause
State/local acts --> dormant commerce clause

Front 32

Relationship between the commerce Clause and Article 4 Privileges and Immunities

Back 32

P& I is stronger than the commerce clause (no market participant exception) but it is narrower in scope (only applies to discrimination against economic interests; does not protect corps or aliens).
Both: state action discriminates against out of state entities.
State local action does not discriminate = CC yes, PI no
Alien/ Corp=p? --> CC yes/ PI no
market participan exception --> CC yes/ PI no.

Front 33

What is procedural due process?

Back 33

Procedural Due process: the procedures government must go through to take away someone’s life, liberty or property.
Typically, what kind of notice or hearing must the government provide when taking away life liberty or property.

Front 34

What is substantive due process?

Back 34

Substantive Due Process: Does the government have an adequate reason for taking away someone’s life liberty or property. Typically, what reason doe the government have to for taking someone’s life liberty or property.

Front 35

when does equal protection apply

Back 35

Equal Protection: Is the Government’s differences in the treatment of people is adequately justified?

Front 36

Distinguish between procedural and substantive due process and equal protection

Back 36

Distinguishing between Procedural/Substantive/Equal Protection: What is the challenger seeking?
Better hearing/notice?  Procedural DP
Seeking Life Liberty removed without adequate justification?  Substantive DP
Objecting to treatment compared to others similar?  Equal protection

Front 37

What powers does congress have?

Back 37

Police power (MILD) Mil/Indi/land/dc
major powers (civ rights, elections etc)
necessary and proper clause
power to tax
power tos pend
commerce clause
10th amend
delecgation of power
war

Front 38

What powers does the president have?

Back 38

Treaty
Executive agreement
war
appointment
removal
privilege
pardon
veto

Front 39

Procedural due process, what approach will the court take?

Back 39

PROCEDURAL DUE PROCESS [Notice and a hearing; court balances 3 factors: (1) importance of interest to individual (2) ability of additional procedures to increase accuracy of fact finding (3) government’s interest (usually money or efficiency); Government owes you proper procedure;

Front 40

In a due process violation, what rights are implicated by liberty?

Back 40

LIBERTY [6 FUNDAMENTAL FREEDOMS granted under the Constitution or statutes “STAR VP”:
(1) Right to Privacy (“CAMPER” contraception, abortion, marriage, procreation, education of children outside public schools, and right of related persons to live together)
(2) Right to Vote
(3) Right to Travel
(4) Freedom of Speech
(5) Freedom of Association
(6) Freedom of religion; STRICT SCRUTINY for fundamental freedoms (except abortion is “undue influence”/a branch off of intermediate)]

Front 41

How to approach an essay on Due Process:

Back 41

DP ESSAY APPROACH:
(1) Is there a state action?
(2) Is there a fundamental freedom (liberty) that is being deprived?
(3) Is there an entitlement (property) that has not been fulfilled?
(4) Did government provide proper procedure?
(5) Does the government have an adequate reason for denying the right?

Front 42

A (substantive) due process violation of property rights requires the following questions:

Back 42

PROPERTY [Entitlements, such as right to public education, right to private property, welfare;
TAKINGS CLAUSE: (1) Is it a possessory taking? (Confiscation or physical occupation) OR is it a regulatory taking? (Denies all reasonable economically viable uses)
(2) Is it for public purpose (“SHEP SWAM”: safety, health, economic, political, social, welfare, aesthetic, moral ends)
(3) is just compensation paid?);

Front 43

Equal protection Essay Questions hould be approached with the following questions ....:

Back 43

EP ESSAY APPROACH:
(1) Is there a state action?
(2) What is the classification (either (a) the classification is on the face of the law; or (b) if the law is facially neutral, there is both a discriminatory intent for the law AND a discriminatory impact)
(3) What is the level of scrutiny?
(4) Does the law meet the level of scrutiny?

Front 44

Free Exercise of religions implicates:

Back 44

the first amendment, applies to state/local through the 14th amendment.
1. Free Exercise Clause & 2. Establishment clause.

STEP 1: FREE EXERCISE CLAUSE: Guarantees right to hold religious beliefs, but resulting conduct can be prohibited if there is a compelling state interest; Least restrictive means; Balance severity of burden on individual’s free exercise of religion with the government’s interest it the regulation; use of peyote during religious ceremonies may be prohibited
STEP 2: ESTABLISHMENT CLAUSE: “SEX” test: (1) Secular purpose (2) Effect neither advances or prohibits religion, and (3) no eXcessive government entanglement with religion.

Front 45

Freedom of Spech Claims:Start analysis with:Facial Attacks: UP & OVer

Back 45

STEP 1: Begin analysis with 4 facial attacks “UP [&] OV[er]”:
(1)Overbroad
(2) Vagueness (reasonable person cannot tell what speech is prohibited and what is allowed)
(3) Prior Restraint (gov action restricting free speech in advance of publication generally invalid (licensing permits, gag order barring media from pretrial publicity/valid where national security interests compelling)
(4) Unfettered Discretion (licensing official has unfettered discretion as to whether to confer or deny a permit)

Front 46

Freedom of Speech Claims: Content Neutral v. Content Specific

Back 46

STEP 2: If the regulation survives the facial attacks, then discuss whether the regulated speech is CONTENT SPECIFIC (Protected speech: use Strict Scrutiny; Unprotected speech: skip to STEP 4 below) or CONTENT NEUTRAL (regulation of time, place, manner)

Front 47

When is a free speech limitation content Neutral?

What are the tests for public and non public forum?

Back 47

STEP 3: If CONTENT NEUTRAL: If public forum,
APPLY 3 part test: regulation must (1) further a significant gov interest such as noise control or traffic safety (2) be narrowly tailored (no more restrictive than necessary) (3) leave open alternative channels of communication;

If non-public forum such as jails, military bases, billboards, public buses, APPLY part test:
regulation must (1) be viewpoint neutral and (2) reasonably related to a legitimate government interest

Front 48

Freedom of Speech, what are the 6 forms of unprotected free speech (content specific limitations)

Back 48

1 clear and present danger
2. defamation
3. Obsenity
4. child pornography
5 fighting words
6 fraudulent commercial speach

Front 49

Freedom of association limitatinos require (and test)

Back 49

FREEDOM OF ASSOCIATION [Laws that punish group membership must meet strict scrutiny. 3 part test where allowed to punish membership: (1) person actively affiliated with group (2) knowing of its illegal activities, and (3) with the specific intent of furthering those illegal activities; laws requiring disclosure of membership must meet strict scrutiny; Groups are allowed to discriminate ONLY if it is an intimate association (small dinner party) OR expressive activity (KKK can exclude blacks)

Front 50

What is the scope of the freedom of the press?

Back 50

read together with the “free speech” clause as a single guarantee; generally the press has no greater privilege than the ordinary citizen; RightRight of Access to attend criminal trial unless compelling government interest; No privilege exists to allow newspersons to refuse to disclose confidential sources to grand jury, but state may enact shield laws to protect this; Broadcasting may be regulated more closely than the press due to limited number of frequencies available (need to provide equal time) yet on the other hand newspapers need not provide equal space for political rebuttal.

Front 51

What is state action and why doesit matter?

Back 51

Has congress violated it's power?
STATE ACTION (“P.E.”) [Always start with discussing state action to make sure government is doing the action (should be obvious in most questions but if it is a non-governmental actor, need to discuss how they are a state actor);
state action is a threshold requirement of government conduct which must be satisfied before private discrimination can be restricted under 14th or 15th Amendments (13th can punish purely private acts of discrimination without state action);

PUBLIC FUNCTION (private entity performing activities traditionally and exclusively carried on by state; ex: company town but not privately owned utility company);
ENTANGLEMENT (state facilitates, encourages, or authorizes discrimination by private actor)]