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149 Cards in this Set
- Front
- Back
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what 's the range of bill of right
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1. Bill of Rights applies directly only to the federal government, BUT, it’s applied to state/local governments through its incorporation into the due process clause of the 14th Amendment
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what is selective incorporationist
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only some apply to the states
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what's total in corporationist?
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ALL of the Bill of Rights applies to the state/local governments
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what's the exceptions of total in corporation
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a. 2nd Amendment right to bear arms (states can adopt any type of gun control they want)
b. 3rd Amendment right to not have soldiers quartered. c. 5th Amendment right to grand jury indictment in criminal cases d. 7th Amendment right to jury trial in civil cases e. 8th Amendment right to excessive fines |
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what's rational basis test
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a law is upheld if it’s “rationally related to a legitimate government purpose”
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who has the burden of prove under the rational basis test?
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Challenger has the burden of proof. Govt usually wins
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when does rational basis apply?
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o If neither a fundamental right nor a suspect nor quasi-suspect class is involved here, the case would be decided under the rational bases test.
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what's intermediate scrutiny?
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– a law is upheld if it’s “substantially related to an important government purpose”
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does the means chosen substantially related to an important government interest need to be narrowly tailored?
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Means must be narrowly tailored but the best way is not required
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who has the burden of prove that law is substantially related to achieving an important gov’t purpose.
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government
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what's strict scrutiny?
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a law is upheld if it’s “necessary to achieve a compelling government purpose”
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what's the requirement for strict scrutiny?
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Must be least restrictive alternative (the best way). The gov’t usually loses.
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what's Procedural Due Process?
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==> a fair process is required for government to individually take a person’s “life, liberty, or property.”
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what 's Deprivation of liberty
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occurs if there is the loss of a significant freedom provided by the Constitution or a statute
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does Prisoners have liberty intrest?
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rarely have liberty interests. Usually always lose
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what's required for a drprivation of liberty?
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(a) Except in an emergency, before an adult can be civilly committed, there must be notice and a hearing
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is Harm to reputation: by itself, a loss of liberty?
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no, Must show a tangible loss on top of harm.
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what's needed for a parent institutionalizes a child,
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there only has to be a screening by a neutral factfinder
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what's the deprivation of property?
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occurs if there is an entitlement & that entitlement isn’t fulfilled.
A reasonable expection of a continue receipt of benefit. |
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what's the rights/privileges distincion under the deprivation of property
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it is a wrong answer.
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what's Entitlement
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reasonable expectation of continued receipt of a benefit.
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what to proved under the due process clause for government action?
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(i) Government negligence is NOT sufficient to state a claim under the due process clause.
b. Must be intentional or reckless government action for liability to exist |
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what's the liability for government under emergency situation?
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• Government will be liable only if the conduct shocks the conscious.
• Act with the intent of causing harm. |
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does Government’s failure to protect people from privately inflicted harms deny due process ?
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no.the government must literally create the danger in order for a duty to exist
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does Child beaten by father violate of due process by Social Services?
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no
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what‘s the three part balancing test?
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a. Importance of interest to the individual – the more important, the more procedure required;
b. Ability of additional procedures to increase the accuracy of the fact-finding; and c. Government interest in administrative efficiency |
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what does Adult instituionalization requires?
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notice, prior hearing
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what does institutionalize child required?
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prior screening by "neutral fact-finder"
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what does termination of welfare benefit require?
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both notice and prior hearing
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what does termination of disability requires?
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notice and post termination hearing
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public employment
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notice, explain, post hearings
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what does discipline in public education requires?
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notice. explain.
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what does termination of child custody requires?
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notice, prior hearing
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what does civil forfeitures require?
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notice, prior hearing and post hearing
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what does punitive damages require to meet due process?
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require instructions to the jury, & judicial review to ensure reasonableness
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Does Due process clause require that every law provide for a hearing?
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No. but only those laws involiving the deprication of life, liberty, or property of an individual.
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what American citizen held as enemy combatant in another country is afforded?
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Due process.
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what does Pre-judgment attachment & government seizure of assets requires?
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notice & a hearing, except in exigent circumstances
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what is Substantive Due Process?
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whether government has adequate reason for taking away an individual’s life, liberty or property
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what does substantive due process test?
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tests the reasonableness of a statute; it prohibits arbitrary governmental action
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what 's the constitutional source of due process?
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14th amendment
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what does 14th amendement apply?
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14th Amendment applies applies only to state/local governments, NEVER to federal
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what's constitutional source for Equal protection to the federal government?
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through the 5th Amendment
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what test required for economic liberty?
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Constitution provides only minimal protection for economic liberties
a. Rational basis test – used for laws affecting economic rights (e.g., minimum wage, other regulations, state law regulating trades or professions, consumer protection laws) |
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what's the takings clause?
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(seperate test)government may take private property for public use, but must provide just compensation
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what's the test for taking?
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(i) Is there a taking?
(ii) Is it for public use? (iii) Is just compensation paid? |
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what qualifies as as a taking?
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(a) Possessory taking
(b) Regulatory taking |
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what's required for possessory taking?
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government confiscation or physical occupation of property is a taking, regardless of size or amount (1 cubic foot for a cable box is a taking
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what's regulatory taking?
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government regulation is a taking if it leaves no reasonable economically viable use of the property
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Is a decrease in the value of the property a taking?
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no
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what's the test for regulatory taking?
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government regulation is a taking if it leaves no reasonable economically viable use of the property
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what's the test for regulatory taking?
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apply rational basis PLUS the “roughly proportionate” test
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what s' roughly proportionate test?
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→ Government conditions on development must be justified by a benefit to the government that is roughly proportionate to the burden imposed – otherwise, it’s a taking.
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when can a property owner bring a taking challenge?
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→ A property owner may bring a takings challenge to regulations that existed at the time the property was acquired
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does temporarily denying an owner use of property is not a taking
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no. as long as it is reasonable.
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what's the public use requirement for taking?
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• Government acts out of a reasonable believe that the taking will benefit the public.
(a) If not, the government must give property back (b) BUT, public use defined broadly as anything government reasonable believes the taking will benefit public |
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what's just compensation required?
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• Reasonable market value terms.
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Does government gain in measuring just compensation relevant?
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no.
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what's government contract clause?
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o Very suspicious when they want to get out of contract
• The contract clause prohibits states from acting to substantially impair contract rights. |
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what test is required if state actions that impair their own existing contracts
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strict scrutiny
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what's the scope of contract clause?
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(a) Applies only to state/local interference with existing contracts – NEVER applies to federal government, which can be challenged only on due process grounds
(b) Affects only already-existing contracts |
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what's the State/local interference with government contract's requirement?
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strict scrutiny
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State/local interference with private contracts
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meet intermediate scrutiny (conbining rational basis)
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what's the test for state/locsl interference with private contract?
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o Serves an important and legitimate public interest
o And is a reasonable and narrowly tailored means of promoting that interest. |
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what's the right to privacy.
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fundamental rights protected under substantive due process
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what's the test for the right to marry?
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st
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what's the test for the right to procreate?
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strict scrutiny
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what's the test for the right to custody of children
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sst
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what is irrebutable test?
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If a married woman has a child, it is an irrebutable child that the woman’s husband is the father of the child.
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what 's the test for to keep family together
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sst.must be related to one another
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what's the test for the right to control raising of children?
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st.
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what is order grandparent visitation over parent’s objection?
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violates due process
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− right to purchase & use contraceptives
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sst
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• The right to abortion.
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st as long as they do not provide undue burden.
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• The right to abortion.
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st as long as they do not provide undue burden.
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• The right to abortion.
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st as long as they do not provide undue burden.
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the duty to provide public hospital of abortion?
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no.
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The prohibition of partial birth abortion; license position, prohibition of partial birth abortion.
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ok
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what's the basis for the right to travel
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covered under Equal protection ;
meet strict scrutiny. |
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what's the test for duration residency requirement?
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strict s
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Is there fundamental right to international travel
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no, rational basis test.
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what's the test for the right to vote?
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covered under Equal protection,sst
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what's the basis and test for freedom of association ?
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sst − freedom of association Equal protection
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what's the test and basis for free exercise of religion
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(covered under Equal protection, sst
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what's the test Discriminatory purpose under the right to vote
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sst
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Does Prove of discrimitory impact for vote show the violation of equal protection?
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no
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what's the range of one person one vote?
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In the District of almost same people.
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what's the test to Poll taxes in order to vote or property ownership in order to vote?
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ss and uncontitutional
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Is there right to education under equal protection or constitution?
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no
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Is there constitutional right to physician assisted suicide?
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no
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is there right to refuse medical care?o Even life-saving
• Food, drug… |
o Clear and convincing evidence
• What the person wants |
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Is there right to practice a trade or profession?
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no. just rational basis test.
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what's the undue burden test for abortion prior to viability
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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
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what's the example of undue burden?
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24 hour waiting period, or requirement that abortions be performed by licensed doctors
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what's the test After viability
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states may prohibit abortions unless necessary to protect the woman’s life or health
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Does government have duty to subsidize abortions or provide them in public hospitals?
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no
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what 's the constitutionality for Spousal consent & notification laws?
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unconstitutional
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what's the constitutionality for unmarried minor?
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state may require parental notice &/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.
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what's the level of scrutiny for Right to private, consensual homosexual sex?
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unknown
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can state prevent Terminating family members’ treatment ?
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yes
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what's the contitutional provisions concerning equal protection?
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5th for fed government, 14th for states
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what's the analysis for equal protection?
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). Steps (1) What is the classification (2) What is the scrutiny (3) Does the law meet the level of scrutiny
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how does state gain equal protection right?
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1. 14th Amendment applies only to state/local governments, NEVER applies to federal govt
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how does the federal government gain equal protection right?
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2. Equal protection is applied to the fed government through the Due Process clause of the 5th Amendment
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what's the test for Classifications Based on Race and National Origin?
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strict scrutiny is used
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how to find the existence of a racial classification?
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a. Classification exists on the face of the law; OR
b. If the law is facially neutral, proving a racial classification requires demonstrating both (i) discriminatory impact & (ii) discriminatory intent |
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Can Education institution use as one factor to make admission decisions to ensure diversity
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yes. Compelling reasons.
but they Cannot add points to somebody based on race. |
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can Public schools use race.
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no
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what is Numerical set-asides (i.e., quotas) require?
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clear proof of past discrimination. (Rarely allowed – only upheld once by Supreme Court – Every time a white person was hired, a black person had to be hired – this was OK
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what 's seniority system?
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last hired, first fired
cant be disrupted for affirmative action. |
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what's the level of scrutiny for gender classification?
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intermediate level of scrutiny is used – must be exceedingly persuasive justification.
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how to prove gender classification?
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a. Classification exists on the face of the law
b. If the law is facially neutral, proving gender classification required demonstrating both (i) discriminatory impact & (ii) discriminatory intent |
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is Preemptory challenges based on gender ok?
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no, violation of equal protection.
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IS Gender classifications benefiting women that are based on role stereotypes be allowed ?
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NO.
woman always gets survivor benefits but men only if they need it is unconstitutional. |
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Does Gender classifications designed to remedy past discrimination & differences in opportunity constitutional?
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yes.
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what's the level of scrutiny for Alienage classification?
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1. Generally, strict scrutiny is used
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Does law said only US citizens could receive social security benefits or hold civil service jobs or practice law constitutional?
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stricken down on strict scrutiny analysis
but one exception. |
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what's the level of scrutiny for discrimination against undocumented alien children
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Intermediate scrutiny
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what's the rational basis test used for alienage classification?
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a. Alienage classifications that concern self-government & the democratic government
b. Congressional discrimination against aliens |
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what are some privileges can be reserved for US citizens only?
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(i) voting, (ii) serving on a jury, (iii) being a teacher, (iv) cop or (v) probation officer
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what's the test If Congress discriminates against non-citizens?
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Congress has plenary power to regulate immigration
only a rational basis review. |
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what's the test for only a rational basis review.
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1. Intermediate scrutiny is used (but almost always stricken down)
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what's the constitutionality of Laws that deny a benefit to all non-marital children (kids whose parents are not married), but grant it to all marital children?
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unconstitutional
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what's the test for age discrimination, does government win?
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rational basis. mandatory retirement laws are often challenged, & government usually wins
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what's the basis for discrimination against disability?Does the government win?
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one of the few times government lost in rational basis review. yes
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what's the basis for wealth discrimination?
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poverty is NOT a suspect classification. Discrimination against poor is only rational basis
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what's the basis for economic regulation? hot dog owners have to be there for 8 yrs
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rational basis. constitutional.
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what's the basis for sex orientation discrimination?
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rational basis.
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what's the test for Laws that prevent people from moving into a state
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strict scrutiny
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what's the test for Durational residency requirements (person must live in a jux for a specified amt of time in order to get a benefit) ?
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strict scrutiny
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what's the maximum allowed durational residence requirement for voting?
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50 days
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is At-large elections (all the voters vote for all the office holders) constitutional?
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yes. UNLESS there’s proof of a discriminatory purpose
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is Use of race in drawing election district lines (to benefit minorities by redrawing districts)?
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must meet strict scrutiny.
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what's the basis for Counting uncounted votes without standards in a presidential election?
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equal protection
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is Right to be a candidate contitutionaly guarranteed?
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no
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what's the strict scrutiny class for strict scrutiny?
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− Race
− National origin − Alienage (generally) − Travel (but not foreign travel) − Voting |
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what's the intermediate scrutiny class for equal protection?
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− Gender
− Legitimacy − Undocumented alien children |
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what's the rational basis test for equal protection?
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− Alienage classifications related to self-government & the democratic process
− Congressional regulation of aliens − Age – Handicap – Wealth − All other classifications |
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what's the test for Content-based restrictions on speech generally
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a. Content-based restrictions on speech generally must meet strict scrutiny
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what's (i) Subject matter restrictions?
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application of the law depends on the topic of the speech
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what's Viewpoint restrictions
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application depends on the ideology of the message
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what's the test for content neutral law?
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(i) Further a significant government interest,
(ii) Narrowly tailored, AND (iii) Leave open alternative channels of communication |
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what's Prior restraints
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Judicial orders to stop speech before it occurs (worst form of restraint on free speech)
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what's the test for Court orders suppressing speech?
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strict scrutiny
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when is Procedurally proper court orders last?
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must be complied with until they are vacated or overturned
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is gag orders on press to prevent prejudicial pre-trial publicity are allowed?
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no
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(ii) Collateral bar rule – does a person who violates a court order is later can challenge the order?
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no
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when can Government require a license for speech?
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only if there is an important reason for licensing, & clear criteria leaving almost no discretion to the licensing authority
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what procedural safeguards must licensing schemes contain
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prompt determination of requests for licenses & judicial review
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