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115 Cards in this Set
- Front
- Back
Judiciabilty Test:
R-A-M-P-S |
Ripeness
Advisory Opinions Mootness Poltical Question Standing |
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Supreme Court
Congress Can ... (Original) |
Neither enlage or restrict
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Supreme Court
Congress Can ... (appellate) |
May broadly regulate
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When does Fed Cts employ abstention? (2)
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1. unsettled issue of state law
2. pending state criminal proc. |
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Appointment Power of President
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Principal Officers and Cabinet Officials
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Appointment Power of Congress
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Inferior officers (e.g., heads of departments, judiciary)
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Treaty v. Law
Which trumps? |
Last in time prevails
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Congress passes a law which allows the President to set fuel standards. Allowed?
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Yes, this is not legislative power
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11 AMD in general, may states be sued?
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State MAY be sued in Fed CT by its own citizens, or citizens of another state --- only with consent
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11 AMD Exceptions to barring of suits against states.
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1. state official sued personally
2. state sued by US or another state 3. Congress waives immunity |
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Property Power of Congress
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Congress has the power to dispose of territory or other property in the US.
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Property Power of Congress
Other than land... |
Wild animals
Military Ships and Planes Federal Bldgs Indian Reservations |
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Three ways to uphold a Federal Statute
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1. Supremacy Clause
2. An enumerated power of Congress 3. Federal property power |
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Uphold a State Statute under Dormant Commerce Clause
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- nondiscrimination
- no unusual burden |
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Uphold a State Statute under Police Power
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- health or safety
- welfare - morals - aesthetics |
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Affectation Doctrine
Modern Commerce Clause |
Congress may regulate any activity which has a substational effect on commerce
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When may a state discriminate against outsiders?
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Where a state uses its own funds to build a market
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Where a law effects SOME person on class of person ---
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Equal Protection
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Where a law effects ALL persons ---
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Substantive Due Process
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Voting Issues (4) Fundamental
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Fundamental Right
- discrimination - reapportionment - switching party affiliations - ballot restrictions |
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Voting Issues (2) Not Fundamental
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Not Fundamental
- filing fee - min and max age restrictions |
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Define Art IV, Privilege and Immunities Clause
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Prevents economic discrimination of one state against citizens of another state UNLESS there is a substantial govt. interest
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Define Procedural Due Process
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Safeguards for a notice and hearing whenever a SERIOUS deprivation of live, liberty, or property interest is at stake
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Type of Liberty Interest (2)
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- right to contract
- right to be employed |
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Define Bill of Attainder
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Legislative punishment of a named group or individual without a judicial trial
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Define Ex Post Facto Law
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Invalidates retroactive criminal laws that (1) make criminal conduct that which was not with the act occured or (2) decreases amt of evidence needed at trial
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Define Obsenity (3)
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- appeal to purient
- depict sexual conduct in a patently offensive way - lack serious literary or artistic value |
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What must a law do in order to not violate the Establishment Clause (3)
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- purpose must be secular
- effect must not inhibit or advance religion - no entanglement |
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Generally Wrong Answers:
General Welfare Clause |
only where limits taxing and spending
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Generally Wrong Answers:
Necessary and Proper |
carries into effect OTHER powers
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Generally Wrong Answers:
14 AMD Priv and Imm CL |
Never Correct
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Generally Wrong Answers:
Distinctions between Rights and Priv in answers |
Never Correct
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Generally Wrong Answers:
10AM |
Except where Congress passes a law making States pass a law
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Generally Wrong Answers:
Contracts Clause |
- only to states
- retroactively impairs obligations to existing contract |
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Approach to Con Law Q (3)
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- underline who is passing law
- determine subj matter of Q - match appropriate power |
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Four Facial Attacks to 1st AMD
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- overbreadth
- vagueness - prior restraint - unfettered discretion |
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Unprotected Speech (6)
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- clear and present danger
- defamation - obscenity - child pornography - fighting words - fraudulent COMMERCIAL speech |
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Strict Scrutiny for Suspect Classifications
R-A-N |
Race
Alienage National Origin |
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Strict Scrunity for Fundamental Rights
C-A-M-P-E-R |
Contraception
Abortion Marriage Procreation Education (Private) Relations (Family) |
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Intermediate Scrutiny
G-I-C |
Gender
Illegitimacy Children (or illegal aliens) |
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Original Constitutional Basis of SCT Jurisdiction (2)
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- case involving ambassador, public minister, or counsel
- any case where a State is a party |
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Appellate Basis of the SCT Jurisdiction (2)
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- appeal by right
- certiorary note: Cangess can modify |
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Can Congress Remove Federal Question of Diversity Jurisdiction?
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Only Diversity
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What is the first issue to start a Con Law essay?
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Standing
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Standing (General) (3)
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- injury in fact arising from conduct being complained of
- relief sought must eliminate the harm alleged - injury must be traceable to D's conduct |
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General Grievance
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Usually Denied
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Tax Payer Standing (4)
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- no challenge to measurable expenditures
- no standing if other than financial - no standing because interest is too remote - exception for establishment clause challenge to expenditutre under tax and spend power |
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Ripeness
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Genuine, immediate threat of harm
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Mootness & Exception
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- actual controversy must exist at all stages of review
- unless injury is capable of repetition with evasion |
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Define Political Question
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Non-justiciable issue committed to another branch of government
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11AMD General
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State cannot be sued in federal court by its own citizens, citizens of a foreign state, or citizens of a foreign country without consent
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Abstention Doctrine (3)
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Where:
- pending state criminal proceedings - injunctive relief from state criminal proceedings - civil contempt proceedings |
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Other wording for Police Powers (2)
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- legitimate interest
- rational basis |
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Two Doctrines Under Commerce Clause
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- Affectation Doctrine
- Cumulative Doctrine |
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Affectation Doctrine
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Any activity which in the aggregate has a substantial economic effect on the stream of commerce
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Cumulative Impact Doctrine
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Entirely instrastate activity which can have a cumulative effect on interstate commerce
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May Congress Attach Strings To Money?
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Yes - if reasonable
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Legislative Veto
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Congress cannot delegate legislative power and then retract it
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Congressional Power over War and Defense (3)
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- declare war
- regulate militia - raise and support troops |
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Power of Appointment
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- President appoints executive officers with consent of Congress
- Congress cannot appoint inferior officers, but can delegate such appointment to the judiciary or executive |
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How many days to veto a bill?
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10
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Executive Privilege (2)
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- absolute right to refuse to disclose military and diplomatic secrets, otherwise qualified
- absolute immunity from civil suits for actions taken in office |
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Can the President control state militias?
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Yes
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Federal Government immunity from state law (2)
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- immune from state taxation and regulation
- may tax federal contractors |
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State Government immunity from federal law (2)
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- generally not immune
- can tax proprietary state businesses |
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Dormant Commerce Clause (2)
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If federal government does not regulate, the state can so long as:
- it doesn't discriminate against interstate commerce - doesn't unduly burden interstate commerce |
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Privileges and Immunity Clause
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Prohibits discrimination by one state of citizens of another state in the areas of basic economic rights or liberties
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To ways to uphold state law
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- police power
- dormant commerce clause |
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State Taxation Rules (5)
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- must be reasonable and non-discriminatory
- must have substantial nexus between state interest and activity being taxed - goods in stream of commerce may not be taxed (unless stopover) - instrumentalities involved in interstate commerce may be taxed if fairly apportioned - airline can be taxed based on number of days plane is in state's airport - direct taxes must be apportioned, indirect (sales) taxes must be geographically uniform |
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Two Part of Supremacy Clause
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- premption
- supercession |
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Supercession Doctrine
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Federal law supercedes state laws in direct conflict; however states may enact stricter standards in the area of health and safety
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Preemption Doctrine
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If the federal government intends to occur the area, any conflicting state laws are invalid
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State Action Requirement of 14AMD
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Threshhold requirement of government conduct which must be satisfied before private discrimination can be restricted. Without state action, private discrimination is not actionable under 14AMD
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Substantive Due Process
Two Strands |
- economic regulation valid if rationally related to legitimate govt interest
- fundamental rights require strict scrutiny |
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Privacy
C-A-M-P-E-R |
- Contraception
- Abortion - Marriage - Procreation - Eduction (in home) - Relations (family) |
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Three Fundamental Rights
P-V-T |
- Privacy
- Vote - Travel |
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Travel
Unconstitutional |
- welfare
- medical services - libraries |
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Travel
Constitutional |
- university tuition
- obtaining a divorce - voting (50 days) |
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Voting v. Candidates
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Voting is a fundamental right, while running for office is not (rational basis)
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Procedural Due Procress (GR)
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Notice and hearing available whenever there is a serious deprivation of life, liberty, or property interest
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Liberty Interests (4)
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- right to contract
- right to engage in lawful employment - right of natural parents in care and custody of child - right to refuse unwanted medical procedures |
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Property Interests (5)
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- welfare benefits
- disability benefits (post) - public elementary and secondary education - garnishment of wages - continued public employment where tenured |
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Takings (5 and 14 AMD)
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Private property taken for public use by confiscation, physical occupation, or regulation which denies owner all reasonable economically viable use of the land
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Three Ways to Take
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- eminent domain ($)
- inverese condemnation ($) - police power (no $) |
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Equal Protection (General)
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Used as argument where persons similarly situated are treated differently
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Strict Scrutiny
R-A-N |
Strict Scrutiny applies to suspect classifications:
- race - alienage - national origin |
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Can schools use quotas in admissions?
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No, but they may use race as a part of the decision, so long as it is narrowly tailored
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Exceptions to Alienage under Equal Protection
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Government participation
- teachers, policemen, jury service, etc. |
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Intermediate Scrutiny
G-I |
- gender
- illegitimacy |
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Intermediate Scrutiny Burden
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Substantially related to an important government interest
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Rational Basis Burden
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Plaintiff must show that the law is NOT related to any rationally related legitimate government interest
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Privileges and Immunities
WRONG on MBE |
Protects rights of citizenship
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Establishment Clause Test of Law
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Government may not pass a law preferring or aiding one religion over another. Test:
- primary purpose law secular - primary effect neither advances of inhibits religion - law must no foster excessive entaglement |
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Opening Prayers
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- ok if long tradition (state legislature)
- no if done by judge |
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Free Exercise Rules (3)
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- violation when government burdens person because of their religion
- beliefs are absolutely protected - conduct in furtherance of those beliefs may be regulated |
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What Speech Can be Contented Regulated (6)
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- clear and present danger
- defamation - obscenity - child pornography - fradulent commercial speech - fighting words |
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Content Neutral Regulation of Speech (3)
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- time and place
- requirements - forum |
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Requirements to Regulate Neutral Speech (3)
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- serve significant govt interest
- narrowly tailored - leave open other channels of communication |
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Types of Forums (4)
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- traditional public
- limited public - non-public - private |
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How to Facially Attack a Law Concerning Speech (3)
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- overbreadth
- vagueness - prior restraints |
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Defamation of Public Figure
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actual malice
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Defamation of Private Person over Public Concern
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mere negligence
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Defamation of Private Person over Private Concern
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just show statement is false, showing malice unlocks punitive damages
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Obscenity Test (3) including
L-A-P-S |
- purient interest applying community standards
- detect sexual conduct in a patently offensive way - lacks (literary, artistic, political, or scientific) merit using reasonable person std |
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Problems getting obscene material (4)
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- ban on public dist
- ban films in public theatre - ban received in mail - ban purchased in stores |
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Fighting Words (2)
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- insults likely to provoke an ordinary person to violence
- statute must be viewpoint neutral |
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Requirements for Licensing Forum for Speech
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- content and viewpoint neutral
- narrowly drawn - no unfettered discretion |
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Punishment for being a member of an association (3)
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- organization advocates unlawful conduct
- individual is a knowing and active member - individual has specific intent to further the illegal objectives of the organization |
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When doing an analysis which is better to use:
1AMD EP |
1AMD has built in EP
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Does the press have more freedom than a person?
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No
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How does a newspaper have a right to keep a source confidential?
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Statute only
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When can public access to a criminal trial be revoked? (3)
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- compelling or overriding state interest
- narrowly tailored - D's right to a public trial is not interfered with |
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Why does the Fairness Doctrine Apply only to Airwaves and Not Newspapers?
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Limited amount of airwaves
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When can one ban symbolic speech (3)
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- further significant government interest
- narrowly tailored - leave open alternative channels |
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Regulation of Cable TV (4)
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- middle tier
- may ban indecent programming - may not ban indecent programmin on public access channels - federal government cannot require stations to scramble signal |