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22 Cards in this Set

  • Front
  • Back
What are the three steps to a Basic Con Law Question?
I. Is there a valid Case or Controversy?
II. What Kind of Constitutional Issue is raised?
III. Are any Individual Rights affected?
What are the considerations for a valid Case or Controversy?

- Ripeness – Immediate threat of harm
- Abstention – No standing for unsettled state law, Will not enjoin state criminal proceeding
- Mootness – Live, Except: Class Action, Repetition evading review
- Political Question – Const delegates to another branch
- Standing Injury, Causation, Redressability
- Eleventh Amendment – Sovereign States
What are the areas of Constitutional Issues we may see on the test?
1. Separation of Powers
2. Federal Legislative Action
3. State Action - State passing a law
What should you raise in a Separation of Powers question?
1. Judicial – See Case or Controversy Card. Defines limitation of power.
2. Executive – Foreign and Domestic Powers, Privileges. Act where doesn't conflict with congress.
3. Legislature – See legislative action card
What are the basic conerns for Legislative Action?
1. Source of Power
. .a. Commerce, tax, Spend, Taking, Citiz, Civil Rights, Foreign Affairs, War, Elections
2. Necessary and Proper
3. 10th Amend
What are the basic concerns for State Laws?
1. Preemption
2. DCC
. .a. Discrimination
. . . .i. Necessary to achieve an important state interest - Intermediate
. . . .ii. Market Participant Doctrine
. . . .iii. Favors a local gov entity
. .b. Undue Burden on IC
3. P and I
. .a. Art IV – Economic and Civil Liberties
. .b. 14th – Travel Only
. .c. Burden, substantial justification no less restrictive means - Strict
What is the list of Individual Rights?
1. State Actor
2. Speech
3. Taking
4. Religion
5. Retroactive Legislation
6. Equal Protection
7. Procedural Due Process
8. Substantive Due Process
State Action / Actor
State Must be the one who caused the act. Situations where private action qualifies as state action:
1. Public Function Doctrine
. .a. Traditional and exclusive prerogative of the state
2. Significant State Involvement
. .a. Entanglement
. .b. Affirmatively facilitates, encourages, or authorizes acts of discrimination
What is the basic steps of a Speech analysis?
1. Prior Restraint – Preventing Speech before it occurs, Narrowly tailored to achieve some compelling interest
. .a. Narrow, reasonable, definite
. .b. Injunction is prompt
. .c. Prompt final determination

2. Vagueness – No reasonable notice – chills

3. Over breadth – Regulating a substantial amount of protected speech

4. Content – Narrowly tailored to achieve compelling gov interest

5. Content Neutral – Generally necessary state interest
What is the test for content based speech restrictions?

What are the basic categories of Unprotected Speech?
Strict Scrutiny
1. Content – Narrowly tailored to achieve compelling gov interest / these are comp interests
. .a. Imminent Lawless
. .b. Fighting words - True Threats
. .c. Obscenity
. .d. Defamatory Speech
. .e. Commercial Speech
What is Imminent Lawless Action?
a. Imminent Lawless Action
. .i. Clear and present danger – imminent illegal conduct likely
. .ii. Speaker intended to cause
What is the test for Obscenity?
c. Obscenity
. .i. Appeals to the prurient interest – local
. .ii. Patently offensive – local
. .iii. Lacks serious (literary, artistic, political, scientific) – natn’l
What are the concerns of Defamatory Speech?
See Torts Cards

d. Defamatory Speech
. .i. Public Concern - Then need Falsity and Fault
. . . .1. Public official or figure - Fault must be Malice
. . . .2. Private Figure - Fault must be negligence.
Commercial Speech
e. Commercial Speech
. .i. No right to: Unlawful, misleading, fraudulent
. .ii. But even true statements can be limited – Intermediate Scrutiny
. . . .1. Substantial gov interest
. . . .2. Directly advances
What are the requirements of Content Neutral Speech Regulations?
Content Neutral – Import gov interests, not burden more speech than neces
a. Time Place Manner
. .i. Public Forum – TPM if:
. . . .1. Content Neutral
. . . .2. Narrowly tailored to serve significant gov int - IS
. . . .3. Leave open alternative channels
. .ii. Non-Public –
. . . .1. Viewpoint Neutral
. . . .2. Reasonably related to a legitimate purpose - RB
b. Symbolic Expression - TPM
c. Freedom of Association
. .i. May not prohibit nor unduly burden. Strict Scrutiny
What is the analysis for a Taking?
1. Public Use
. .a. Liberally construed
2. Just Compensation
. .a. Fair Market Value
. .b. Taking v. Regulation
. . . .i. Physical Taking is met if even a part of the land is taken
. . . .ii. If regulatory must deny ALL econ value
. . . .iii. Temporary restriction uses balancing
What are the issues with Religion?
1. Establishment Clause
. .a. Secular Purpose S
. .b. Secular Effect E
. .c. No Excessive Entanglement X
2. Free Exercise Clause
. .a. Regulating general conduct with incidental effect on religion
What is Retroactive Legislation?
1. Impairment of Contract
. .a. Private Contract – Intermediate
. . . .i. Important and legitimate gov purpose
. . . .ii. Reasonable and narrowly tailored
. .b. Pubic Contract – Stricter
2. Ex Post Facto Laws
. .a. Criminal Offense
. .b. Makes something in past a crime, lowers the evidence needed, greater punishment
3. Bills of Attainder
. .a. Legislative acts that inflict punishment on individuals
What are the tests for Equal Protection?
1. Strict Scrutiny – (Race, Alienate, Fundamental Right)
. .a. Necessary to achieve compelling gov interest
2. Intermediate – (Gender, Illegitimacy)
. .a. Substantially related to an important gov purpose
3. Rational Basis – (Wealth, Age, Others)
. .a. Rationally related to a legitimate gov purpose
Procedural Due Process
Fair process (notice/hearing) is required for a government to individually take a person’s “life, liberty, or property”
1. Liberty
. .a. Loses a significant freedom to act
. .b. Denied a freedom under the constitution or statute
2. Property
. .a. Legitimate claim or entitlement
. .b. Reasonably expectation of continued benefit
3. Type of Process – Balance
. .a. Importance of interest
. .b. Value of procedural safeguards
. .c. Government interest
Substantive Due Process
Same as EP
What are the basic Fundamental Rights?
1. Right to Privacy
. .a. Marriage
. .b. Use of Contraceptives
. .c. Abortion
. . . .i. Pre-Viability – No undue burdn
. . . .ii. Viability – Health and safety exception
. .d. Family
. .e. Sexual Conduct
2. Right to Vote
. .a. Residence, age, and citizenship(50 days) are RB.
. .b. One person one vote
. .c. Candidates – Age = RB, most else is SS.
3. Right to Travel
. .a. International travel = RB
4. 1st Amendment