Con Law Flashcards

Front 1

I. Justiciable Case or Controversy: Name the 6 issues

Back 1

1. Ripeness
2. Abstention
3. Mootness
4. Political Question
5. Standing
6. Eleventh Amendment

Front 2

. Ripeness = ?
- Can federal court grant pre-enforcement review of a statute/regulation?
 2 part balancing test

Back 2

. Ripeness = A P is not entitled to review of a statute before its enforcement unless the P will suffer some harm or immediate threat of harm

- Can federal court grant pre-enforcement review of a statute/regulation?

- Court may make such “pre-enforcement” review upon balancing:
(a) Hardship that will be suffered without pre-enforcement review
(b) The fitness of the issues and the record for judicial review
E.g. is there anything to be gained from waiting?


Note: Ripeness bars consideration of claims before they develop

Front 3

2. Abstention = ?

Back 3

Abstention: May enjoin
- Federal courts may not enjoin pending state court criminal proceedings except in cases of proven harassment or prosecutions taken in bad faith
- The same goes for some pending administrative or civil proceedings which involve an important state interest as well

Front 4

3. Mootness = ?

- 3 Exceptions

Back 4

3. Mootness:
- If events after the filing of the lawsuit ends P’s injury, then the case is moot b/c matter is resolved
- Exceptions: A case will not be dismissed as moot despite the fact the injury for which P is seeking redress no longer exists if:
(1) The wrong is capable of repetition but evading review
- Think Roe v. Wade
(2) Voluntary cessation
- If D voluntary stops the injury causing action but could later reinstate it
(3) Class action lawsuits
- Only one member of the suit must have ongoing injury for all to be justiciable
- Note: Mootness bars consideration of claims after they develop

Front 5

4. Political Question Doctrine = ?

- Four political question issues [deemed non-
justiciable] on the bar:
- 2 Others mentioned by not often used on the bar include:
- 3 typical Non-political questions include:

Back 5

4. Political Question Doctrine:
- Refers to constitutional violations that the federal courts will not adjudicate
- Four political question issues [deemed non-justiciable] on the bar:
(1) Actions under “republican form of government clause”
Cases regarding laws enacted under/pursuant to this clause are non-justiciable political questions
(2) Challenges to President’s conduct of foreign policy
(3) Challenges to the impeachment and removal process
(4) Challenges to partisan gerrymandering
Where election districts are drawn to maximize the political power of the party drawing them
- Others mentioned by not often used on the bar include:
(1) Challenges to congressional procedures for ratifying constitutional amendments
(2) Whether a person elected to Congress meets the age, residency, or vote requirements
- Non-political questions include:
(1) Legislative apportionment
(2) Arbitrary exclusion of congressional delegate
(3) Production of presidential papers/communications

Front 6

5. Standing = ?
- 3 elements?

Back 6

1) Injury:
- P must allege and prove that s/he has been directly injured or imminently will be injured by the allegedly unlawful gotv. action
- P may only assert personally suffered injuries
- P seeking injunctive or declaratory relief must show a likelihood of future harm to establish injury requirement
- Without injury there is an improper advisory opinion issue
- Exam Tip: If trying to find which has best standing among potential Ps  Look for answer where P personally suffered an injury. If more than one, then choose the P with economic loss ($$)
2) Causation:
- There must be a causal connection between the injury sustained and the conduct complained of
3) Redressability:
- Decision in the litigant’s favor must be capable of eliminating his or her grievance(s)


What are the two general rules for standing?

Front 7

No Third Party Standing:
- Gr
- 3 Exceptions:
- 3rd exception has 3 elements:
No Generalized Grievances:
- Gr
- 2 Exceptions:

Back 7

No Third Party Standing:
- P cannot assert claims of others – 3rd parties – not before the court
- Exceptions: Third party standing is allowed if:
(1) There is a sufficiently close relationship between P and the injured 3rd party
- Doctor-patient relationship (abortions)
- But not a non-custodial parent-child relationship
(2) Injured 3rd party is unlikely to be able to assert his or her own rights (without difficulty), or
- An association may attack a law requiring disclosure of membership lists as members cannot do it themselves without disclosing their identities
(3) Associational Standing: An organization may sue for its members if:
i) Members would have standing to sue;
ii) Interests are germane to organization’s purpose; and
iii) Neither the claim nor relief requires participation of individual members
No Generalized Grievances:
- P may not sue solely as a citizen or taxpayer interested in having the government follow the law
- Exceptions:
1) Taxpayers can challenge their taxes
2) Taxpayers have standing to challenge any government expenditures – made pursuant to federal statutes – on the grounds that the spending is a violation of Establishment Clause
- Note: The spending power must be involved  No standing to challenge a
grant of surplus property to religious groups
- Exam Tip: If you see any request for declaratory judgment questions then
raise/be aware of a ripeness issue

Front 8

6. 11th Amendment/ Sovereign Immunity = ?
- Suits against States?
- 4 Exceptions
- Suits against localities?
- States suing feds?

Back 8

6. 11th Amendment/ Sovereign Immunity
- Courts may not hear suits against state governments, which are brought by private parties or other foreign governments
- Exceptions: Only situations where states may be named as a D
(1) Express waiver/consent to be sued
(2) States may be sued pursuant to federal laws enforcing §5 of the 14th Amendment
- Congress cannot authorize suits against states under other constitutional provisions however
- E.g. Title VII suits b/c passed under the spending power
(3) Federal government may sue state governments
(4) Bankruptcy proceedings
- Note: Sovereign immunity does not apply to actions against local governments but it does prevent states from suing the U.S. absent legislation indicating or permitting otherwise

Front 9

What about suits against officers?
- 2 situations when they can be sued, and 1 exception:

Back 9

Suits against state officers are allowed when:
1) Sued for injunctive relief for violations of Federal law or Constitution
- Even if it requires prospective payment from the state
2) They are sued for money damages to be paid out of their own pockets
- However, if it is the state treasury that will be paying retroactive damages then suit is barred
- Note: There is always at least one MBE question on these issues and often there are essays on these rules as well

Front 10

Supreme Court Review:
- How do virtually all cases go to SCOTUS?
- Including cases from which 2 types of courts?
- In some cases the Court must take an appeal – mandatory review, when?

Back 10

- Virtually all cases come before the Supreme Court by writ of certiorari
- All cases from state courts come before the Supreme Court by writ of certiorari
- All cases from U.S. Courts of Appeals come to Supreme Court by writ of certiorari
- Thus, these are subject to discretionary review by the Court
- Majority decision by justices will allow them to hear the case
- Mandatory review  In some cases the Court must take an appeal
- Appeals exist for decisions of three-judge federal district courts re: injunctive relief
- If appellate review is requested in these instances then the Supreme Court is obligated to hear the case – Court’s of Appeal or bypassed entirely

Front 11

In very rare instances the Court has original jurisdiction over a matter, when (2 situations)?
- Generally, the Court may hear cases only after there has been a final judgment of one of which 3 courts:
- When can Supreme Court review of a state court decision?

Back 11

- In very rare instances the Court has original jurisdiction over a matter
- Supreme Court has original and exclusive jurisdiction for suits between state govts.
- In these instances the case will actually be filed with the Supreme Court
- It also has original but not exclusive jurisdiction in all cases affecting ambassadors, public ministers and consuls
- Generally, the Court may hear cases only after there has been a final judgment of:
(i) The highest state court;
(ii) A U.S. Court of Appeals; or
(iii) A three-judge federal district court
- For Supreme Court review of a state court decision, there must not be an independent and adequate state law ground for the decision
- If a state court decision rests on two grounds, one state law and one federal, then the Supreme Court’s reversal of the federal law ground would not change the result in the case, SCOTUS would not hear it
- However, if the State decision is silent and fails to clearly indicate that its decision rests on state law grounds the Court may hear it

Front 12

II. Governmental Power
What are the 3 main areas to cover?

Back 12

1. Federal Executive Power
2. Federal Congressional Power
3. Federalism issues

Front 13

A. FEDERAL EXECUTIVE POWER

What are the 4 main areas to cover?

Back 13

1. Foreign Powers
2. Domestic Powers
3. Executive Privilege and Immunity
4. Impeachment

Front 14

What are the three main powers of Executive in foreign relations?

Back 14

1. Foreign Powers
a. Treaty Power
b. Executive Agreements
c. War and foreign relation power

Front 15

a. Treaty Power:
- Definition?
- Treaty vs. state law
- Treaty vs. federal law
- Treaty vs. Constitution
b. Executive Agreements:
- Definition?
- For what purpose?
- EA vs. state law
- EA vs. federal law
- EA vs. Constitution

Back 15

1. Foreign Policy:
a. Treaty Power = Agreements between US and a foreign country that are negotiated by the President and are effective when ratified by the Senate
- Treaty vs. state law  T controls
- Treaty vs. federal statute  the one adopted last
in time (most recently) controls
- Treaty vs. US Constitution  Constitution controls
b. Executive Agreements = Agreement between US and a foreign country that is effective when signed by the President and the head of the foreign nation
- Executive agreements can be used for any purpose
- Executive agreements prevail over conflicting state laws but
never prevail over conflicting federal laws or the Constitution

Front 16

c. War and foreign relation power?

Back 16

- President has broad Commander-in-Chief powers to use American troops in foreign countries
- Exam Tip: Best answer is “non-justiciable” as a political question when you get an issue regarding the Presidents use of American troops in foreign countries but:
- If answer doesn’t exist then fallback on this “Commander in Chief” power
- President has no power to declare war but may act militarily in actual hostilities

Front 17

2. Domestic Powers: What are the 4 areas of domestic power in the Presidency?

Back 17

a. Appointments/removal
b. Pardons
c. Veto
d. Chief Executive

Front 18

a. Appointment Power = ?
- Officers?
- Inferior Officers?
- Def of inferior?

Back 18

Appointment Power:
- President appoints ambassadors, federal judges and officers of the US whose appointments are not otherwise provided for
- Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts as it sees fit
- Inferior officers = those who can be fired by another officer
- Congress may not give itself or its officers the appointment power
- Beware: Tested twice in the last five years on the MBE

Front 19

a. Removal Power:
- Who can Pres fire?
- What can Congress do to limit that power?
- How can Congress fire?

Back 19

Removal Power:
- Unless removal is limited by statute, the President may fire any executive branch officer subject however to certain Congressional limitations
- Congress can limit removal if it’s deemed the office in question is one where independence from the President is desirable
- Even then Congress cannot prohibit removal, it can only limit removal to situations where good cause is shown
- Never applies to cabinet members
- Congress can remove executive officers only through impeachment process

Front 20

b. Executive Pardons:
Gr
Exception

Back 20

b. Executive Pardons:
- President has the power to pardon those accused or convicted of federal crimes
- Exception: One can’t be pardoned for crimes underlying their impeachment
- President may pardon only as to federal criminal liability – No state crimes, no civil cases, no impeachment offenses

Front 21

c. Veto
- Gr
- Congressional override?

Back 21

c. Pres has power to veto any legislation
- Congressional override requires 2/3s of both
chambers

Front 22

Chief Executive (ie enforcement of legislation)
3 tiers of analysis

Back 22

1) If President acts w/ implied or express Congressional approval, his authority is at its highest
2) If President acts where Congress is silent, his action will be upheld unless usurps power of another branch
3) If President acts against express Congressional will, he has little authority

- Youngstown Sheet

Front 23

3. Executive Privilege and Immunity

Absolute Immunity:
Gr
Executive Privilege:
Gr

Back 23

Absolute Immunity:
- President has absolute immunity to civil suits for money damages resulting from actions conducted while he/she is in office
- However, no immunity for actions that occurred prior to taking office
Executive Privilege:
- President has executive privilege for presidential papers and conversations, but such privilege must yield to other important governmental interests in criminal cases
- E.g. the Watergate scandal  Documents and phone logs needed to be disclosed for evidentiary purposes despite this “executive privilege”

Front 24

4. Impeachment:
- Who can be impeached?
- Impeachment requires?
- Conviction requires?

Back 24

Impeachment and Removal:
- President, the Vice President, federal judges, and officers of US can be impeached and removed from the office for treason, bribery, or for high crimes/misdemeanors
- Impeachment by House of Representatives requires a majority vote
- Conviction in the Senate requires a 2/3rd vote

Front 25

C. Federal Legislative Powers
- 3 types of power?
- When does “police power” work?

Back 25

1. Enumerated powers  Congress can only exercise those powers which are enumerated in the Constitution plus all auxiliary powers which are necessary and proper to carry out enumerated powers
- Congress may not act absent express/implied constitutional power to do so
- Congress’ police power only permits: (MILD)
1) Legislating for the Military
2) Legislating for Indian reservations
3) Legislating Federal Lands or territories
4) Legislating the District of Columbia
2. Necessary and Proper Clause  Allows Congress may take any action – not otherwise constitutionally prohibited – to carryout any power granted to any branch of government
- Must be used in conjunction with another federal power

Front 26

2. List the 7 direct sources of Congressional power; and 1 source for local govt legislation

Back 26

a. Commerce Clause
b. Tax and Spending
c. Taking Property
d. Citizenship
e. Civil Rights
f. Foreign Affairs
g. War

Local govt -> State Police Power: power to reg/pass leg for the health, safety and morals of its citizens

Front 27

Commerce clause: go!

Back 27

a. Commerce Clause: (Remember: 1937-1995)
- Congress has the exclusive power to regulate interstate commerce so long as the federal law:
(1) Regulates the channels of interstate commerce (eg: Internet, highways, waterways etc.)
(2) Regulates the instrumentalities of interstate commerce and persons and things in interstate commerce; or
- Instrumentalities = those things that further interstate commerce (eg: trucks, phones, the Internet etc.)
(3) Regulates activities that have a substantial effect on interstate commerce
- Economic Activity:
- Congress can regulate if the “cumulative” effects of all those engaging in the conduct rationally has a substantial effect on interstate commerce
- Growing own wheat and weed  economic
- Non-Economic Activity:
- Congress cannot regulate based on “cumulative” effects of all those engaging in the conduct but it must individually effect interstate commerce
- Possessing firearms on public school  noneconomic

Front 28

b. Taxing and Spending Powers: Go!

Back 28

b. Taxing and Spending Powers:
- Congress may tax and spend in any way deemed for “general welfare”
- Note: Tax must bear a reasonable relationship to revenue production or Congress must have the power to regulate the activity taxed

Front 29

General rules for these…


c. Taking Property
d. Citizenship
e. Civil Rights
f. Foreign Affairs
g. War

Back 29

c. Taking Property  federal takings must be for the purpose of effectuating an enumerated power

d. Citizenship  may establish uniform rules of naturalization; Congress has plenary power over aliens
- Resident aliens  entitled to notice/hearing before deportation
- Nonresident aliens  no right to enter US (may be discriminated
against)
- May not take away any citizenship w/o consent

e. Congress’ Power Under §5 of the 14th Amendment:
- They may act only to prevent or remedy violations of rights recognized by the courts and such laws must be “proportionate” and “congruent” to remedying constitutional violations
- Congress may not create new rights or expand the scope of rights

f. Foreign Affairs/War  Con gives Congress power to declare war and create and support armies/navy
- Congress may makes Military Courts/Tribunals and set the rules
for armed forces

Front 30

3. 10th Amendment as Limit on Congressional Powers:
- Gr
- 2 Congressional powers not affected by 10th amendment
- 1st: 2 part test
- 2nd: give eg

Back 30

3. 10th Amendment as Limit on Congressional Powers:

- 10th Amendment states that all powers not granted to U.S., nor prohibited to the states, are reserved to the states or the people Congress cannot compel state regulatory/legislative action or commandeer state officials for federal purposes
- Note: Congress can induce state action by putting strings on grants, so long as the conditions are (1) expressly stated and they (2) relate to the purpose of the spending program at issue
- Note: Congress may prohibit harmful commercial activity by state governments
- Reno: Federal law prohibited release of SS #’s and home addresses. Court held Congress wasn’t imposing a duty on the states but was prohibiting harmful commercial activity (e.g. the selling of the addresses and SS #’s etc.)

Front 31

D. Federalism

The 4 main areas of federalism/limitations on
state/local actions for essay?

Back 31

1. Preemption
2. DCC
3. Privileges and Immunities Clauses
4. Contracts Clause

Front 32

1. Preemption:
- Supremacy Clause: GR
- Express Preemption:
- Gr:
- Implied Preemption: Occurs in 3 situations:

Back 32

1. Preemption:
- Exclusive Federal Powers: Powers that are exclusively federal b/c of express or inherent constitutional limitations cannot be exercised by states.
- Supremacy Clause: The Federal Constitution and any laws and/or treatise made pursuant thereto, are the supreme laws of the land and thus trump conflicting state law
- Express Preemption: If federal statute explicitly says federal laws are exclusive in this field
- Implied Preemption: Occurs if:
(1) Federal and state laws are mutually exclusive – (a conflict exists):
- If you cannot comply with both federal and state law at same time
- Note: States may set environmental standards stricter than federal law unless federal law so prohibits it
- Not limited to environmental but that is what MBE has
used in recent years
(2) State law impedes achievement of federal objective:
(3) Congress evidences clear intent to preempt state law:
- Eg: Immigration law and bankruptcy law
- This may occur even if the state law is non-conflicting
- Look for the comprehensiveness of the federal scheme and the creation of an agency to administer the law (e.g. the SEC etc.)

Front 33

Intergovernmental Tax and Regulation Immunities:
- Can States tax or regulate the federal government’s activities?
- Exception?
- Can the Feds tax or regulate the States?

Back 33

Intergovernmental Tax and Regulation Immunities: States may not tax or regulate the federal government’s activities
- Unconstitutional to pay a state tax out of the federal treasury
- Exception: a state may impose income tax upon federal employees
- States cannot regulate the government if they would be placing a significant or substantial burden upon federal activity
- E.g. The federal govt. never need comply with state pollution laws
- Note: Congress may so tax and regulate state government’s activities subject to some very limited restrictions imposed by the 10th Amendment
- Exam Tip: An answer saying the 10th will invalidate a given federal action is almost always going to be wrong

Front 34

2. DCC:

A) If the state law burdens IC and discriminates against out-of-state persons, what is the rule?
- 2 Exceptions

B) If the state law burdens IC but does not discriminate, what is the rule?

Back 34

A) If the state law burdens IC and discriminates against out-of-state persons, it violates the DCC unless it is necessary to achieve an important, noneconomic governmental purpose (undue burden)
- Necessary: Must show there is no less discriminatory alternative that would allow it to achieve its objectives
- Helping in-state vs. out-of-state is never an acceptable “important purpose”
- Only one case where Court found IGP  importation of diseased fish
- Exceptions:
- Congressional Approval of the Law: Once Congress has acted, its commerce power is no longer dormant and DCC doesn’t apply
- Market Participant: State or local governments may favor its own citizens in receiving benefits from government programs or dealing with government businesses. In other words when they are acting as a market participant by buying or selling, hiring labor, or giving subsidies (eg: public colleges can charge more to out-of-state students than in-state-students)

B) If the state law does not discriminate against out of state persons but burden IC, then it is valid unless the burden outweighs the promotion of a legitimate local interest (balancing test)

Front 35

3. Privileges and Immunities Clauses:

Article IV applies if the law burdens IC and discriminates against out-of-state persons with regard to one’s _______
- Exception:

14th Amendment applies if the law burdens IC and discriminates against in-state persons with regard to right to _______

Back 35

3. Privileges and Immunities Clauses:

A) If the law discriminates against out-of-state persons with regard to one’s ability to earn a livelihood (or civil rights), it violates privileges and immunities clause of Article IV unless necessary to achieve an important governmental interest
- IGP usually = ability to earn a livelihood on the bar
- Invalid Discrimination Examples:
- $2500 license fee from nonresident commercial fishermen while residents paid $25
- Statue imposing abortion residency requirement
- Limiting bar admission to state residents
- Valid Discrimination Examples:
- Nonresidents paying $225 for a recreational hunting license as opposed to $30 for residents
- Exception: Corporation and aliens can’t use P&I clause of Art. IV
Exam Tip: If you have a question where state or local law discriminates against out-of-staters and the challenger is corporation and/or alien then only use the DCC analysis of the law
- Note: No less discriminatory alternative can exist

B) If the law discriminates against in-state persons with regard to right to interstate travel, it is invalid under Privileges or Immunities Clause of the 14th Amendment

Front 36

4. Contracts Clause  ?
Who does it apply to:
States?
Fed govt?
Private Contracts:
Level of review?
Test?
Public/Government Contracts:
Level of review?

Back 36

Contracts Clause  No state or locality shall impair the obligations of pre-existing contracts
- K clause never applies to the federal government
- Only a Due Process claim would/could result from federal government’s retroactive interference with existing K’s
Private Contracts:
- State and local legislative interference with private contracts must meet an intermediate scrutiny/level of review
- Test  Legislation is invalid under CC if it (1) substantially impairs a party’s rights under a previously existing K and (2) unless it is a reasonably and narrowly tailored means of (3) promoting important and legitimate public interest
Public/Government Contracts:
- State and local legislative interference with government contracts must meet strict scrutiny

Front 37

State Taxation of Interstate Commerce
- Can states use their tax systems to help in-state businesses?
- When can state tax?
- How much can state tax?
Full Faith and Credit Clause:
- GR?
- 3 elements

Back 37

State Taxation of Interstate Commerce:
- States may not use their tax systems to help in-state businesses (DCC)
- A state may only tax activities if there is a substantial nexus to the state
- State taxation of interstate business must be fairly apportioned to activity occurring there
Full Faith and Credit Clause:
Courts in one state must give full faith and credit to judgments of courts in another state if:
(1) The court that rendered the judgment had jurisdiction over the parties/subject matter
(2) The judgment was on the merits
(3) The judgment is final

Front 38

Delegation of Powers:
- What are the limits on Congress’ Delegation powers?
- What about Congressional delegation of executive powers?
- Are Legislative vetos and line-item vetos constitutional?
- Legislative Veto = ?
- Line-item Veto = ?

Back 38

Delegation of Powers:
- Legislative power may generally be delegated as long as intelligible standards are set
- Practically, no limit exists on Congress’ ability to delegate its legislative power  since 1936 not one federal law has been stricken down in this regard
- Exam Tip: Ignore answer discussing unconstitutionality of an act for
its having exceeded the legislatures power to delegation power
- Note: Congress may not delegate executive power to itself or its
officers
- Exception: delegating away bicameralism  Legislative vetoes and line-item vetoes are always unconstitutional
- Legislative Veto = Where Congress attempts to overturn an executive action without bicameralism or presentment
- For Congress to do this, there must be bicameralism
(passage by both House and Senate) and presentment to President
- Line-item Veto = Where president attempts to veto part of bill while signing the rest into law
- President must sign or veto the bill in its entirety

Front 39

III. Individual Rights

A. What is the first and most impt question?
- Gr
- At what levels?
- When can Congress apply constitutional norms to private conduct? 2 egs and one case where Congress can’t

Back 39

A. State Action?
- The Constitution applies only to government action
- Applies to government at all levels (federal, state and local)
- Private conduct need not comply with any applicable Constitution
- Congress, by statute, may apply constitutional norms to private conduct in certain cases
- (1) 13th Amendment can be used to prohibit private (or govt.) race discrimination
- §2 of the 13th authorizes Congress to enforce the 13th Amendment itself
- Note: Discrimination does not violate the 13th; however, discrimination can violate a statute enacted pursuant to §2 of the 13th Amendment
- (2) Commerce power can be used to apply constitutional norms to private conduct
- Hypo: You run a restaurant that is discriminatory against blacks. Court says you get your food via IC and combined, all those discriminatory restaurants prohibit IC travel so we can govern
- This makes the commerce clause an important basis for civil rights laws
- But not: §5 of 14th Amendment to regulate private behavior

Front 40

What are the two situations where private conduct must comply with the Constitution?

Back 40

1) Exclusive Public Function: Constitutional norms apply if a private entity is performing a task traditionally and exclusively done by the government
- A private entity which is running a town  EPF
- A private entity running their own primaries/elections  EPF
- A private entity running utilities  Not EPF

2) Significant State Entanglement Exception: Constitutional norms apply if the government affirmatively authorizes, encourages, or facilitates unconstitutional private activity in some manner
- Key Examples/Rules Therefrom:
(1) A court enforces a racially restrictive covenant
(2) Government leases premises to a restaurant that racially discriminates
(3) A state provides books to schools that racially discriminate
(4) A private entity regulates interscholastic sports within a state
(5) The NCAA orders the suspension of basketball coach at a state university
(6) A private school that is over 99% funded by the government fires a teacher because of his or her speech
(7) A private club with a liquor license from the state racially discriminate

Front 41

Key Examples/Rules Therefrom:

(1) A court enforces a racially restrictive covenant  SSE
(2) Government leases premises to a restaurant that racially discriminates  SSE
(3) A state provides books to schools that racially discriminate  SSE
(4) A private entity regulates interscholastic sports within a state  SSE
(5) The NCAA orders the suspension of basketball coach at a state university  No SSE
(6) A private school that is over 99% funded by the government fires a teacher because of his or her speech  No SSE
(7) A private club with a liquor license from the state racially discriminate  No SSE



What are the Individual Rights that you have to know for the Essay?

Back 41

A. First Amendment: Speech
B. First Amendment: Association
C. First Amendment: Religion
D. Equal Protection
E. Substantive Due Process
F. Procedural Due Process
G. Economic Liberties

Front 42

What are the 3 main areas of FA: Speech law?

Back 42

A. FA: Speech
1. Prior Restraint
2. Vagueness/Overbreath
3. Content Regulation or Content Neutral?

Front 43

1. Prior Restraints = ?
- PR must meet what level of scrutiny?
- Examples to Memorize:
- Prohibiting publishing troop movement in war?
- Enforcing contractual prepublication review of CIA agent’s writings?
- Prohibiting publication of Pentagon Papers as it might have an effect on Vietnam War?
- Prohibiting grand jury witnesses from ever disclosing testimony?

- When can govt set up PR regime?

Back 43

1. Prior Restraints = Judicial orders or administrative systems that stop speech before it occurs
- Court orders suppressing speech must meet strict scrutiny level of review
- However, procedurally proper court orders must be complied with until they are vacated or overturned
- Anyone who violates a valid court order is thereafter barred from constitutionally challenging it
- Examples to Memorize:
- Prohibiting publishing troop movement in war  valid PR
- Enforcing contractual prepublication review of CIA agent’s writings 
valid PR
- Prohibiting publication of Pentagon Papers as it might have an effect on
Vietnam War  uncon PR
- Press “gag-orders” preventing pre-trial publicity  uncon PR
- Prohibiting grand jury witnesses from ever disclosing testimony  uncon
PR
- To be valid, a system for prior restraint must provide the following procedural
safeguards:
1) Standards must be narrowly drawn, reasonable and definite
2) Injunction must be promptly sought
3) There must be prompt and final determination of the validity of the restraint

Front 44

2. Vagueness and Overbreadth:
- Vagueness = ?
- Gr
- Overbreadth = ?
- Gr
- What’s a common eg of vagueness/overbreadth?

Back 44

2. Vagueness and Overbreadth:

- Vagueness = A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what speech is allowed
- Overbreadth = Law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated (e.g. reaches protected speech)
- “Fighting Words” laws are examples of ones unconstitutionally vague and overbroad
- Court hasn’t upheld a fighting words statue since Chaplinsky
- Exam Tip: Appealing victim and a nasty speaker. Speaker is convicted under a “fighting words” law; Always pick unconstitutionally vague/overbroad answer

Front 45

3. Content Based v. Content Neutral Laws:
Content based restrictions on speech generally must meet what level of scrutiny?
Two types of “content based” laws?
Content neutral laws burdening speech generally must meet what level of scrutiny?

Back 45

3. Content Based v. Content Neutral Laws:
- Content based restrictions on speech generally must meet strict scrutiny review
- Two types of “content based” laws:
(1) Subject matter restrictions = Application of the law depends on the topic of the message
Hypo: No picketing unless a labor protest. This is a subject matter restriction which is content  Unconstitutional under strict scrutiny
(2) Viewpoint restriction = Application of the law depends on the ideology of the message
Hypo: Pro-war demonstrations were allowed in the city part but no-war demonstrations were not. This is a viewpoint restriction  unconstitutional under the strict scrutiny level of review
- Content neutral laws burdening speech generally must meet intermediate scrutiny
- Hypo: No parades or demonstrations in this city park. This is content neutral and subject only to intermediate scrutiny

Front 46

List the 4 areas of Content-based regulations

Back 46

Content Regulations:

1) Incitement of imminent illegal activity
2) Obscenity
3) Commercial Speech
4) Defamation

Front 47

1) Incitement of Imminent Illegal Activity:
- When may government may punish speech under this
doctrine?
- Fighting Words = ?
- Other issue to always consider?

Back 47

1) Incitement of Imminent Illegal Activity: Government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality

- Remember, most of these statutes are going to be deemed
vague and overbroad

Front 48

What’s the test for porn reg (whats it called? Mnemonic? 3 elements)?

Back 48

2) Obscenity and Sexually-Orientated Speech:
• Miller Test for determining obscenity:
 (1) Material must appeal to the prurient interest
- PI = “shameful or morbid interest in sex”
- Determined by a local/community standard
 (2) Material must be patently offensive under the law prohibiting obscenity
- Any law that prohibits obscene material must delineate what is deemed “patently offensive”
- Determined by the applicable law/community at issue
 (3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value
- Existence of “redeeming value” is governed by a national standard
B Remember: Porno is pretty offensive art

Front 49

• May govt use zoning rules to regulate location of adult bookstores/movie theatres?
• May child pornography may be completely banned, even if not obscene?
• May govt punish private possession of obscene material?
• May govt punish private possession of child pornography?
• May government may seize the assets of business convicted of violating obscenity laws?

Back 49

- Govt. may use zoning rules to regulate location of adult bookstores/movie theatres based on “secondary effects”
- Child pornography may be completely banned, even if not obscene
- To be child pornography, children must be used in production of the material
- Government may not punish private possession of obscene material but may punish private possession of child pornography
- Government may seize the assets of business convicted of violating obscenity laws

Front 50

What about profane and indecent speech?
Gr:
Two Exceptions:

Back 50

Gr: Profane and indecent speech is generally protected by the 1st Amendment
Hypo: **** the Draft punishment  uncon
Hypo: Communications Decency Act prohibiting publishing indecent speech on Internet  uncon
- Two Exceptions: Where government can punish profane/indecent speech
(1) When speech is distributed over the broadcast media
Hypo: 7 dirty words broadcast on radio regulated  con b/c broadcast media is uniquely accessible to children
- Note: more able to regulate free tv and radio; less able to regulate cable tv or Internet
(2) Speech at school
Hypo: speech nominating another student for gov’t using lots of innuendo  con b/c schools are responsible for teaching civilized discourse
Hypo: School released students to watch Olympic torch go by and they busted out “Bong Hits for Jesus” sign. The kids were then suspended  Con b/c schools have impt interest in discouraging drug use

Front 51

3) Commercial Speech:
What about illegal, and false and deceptive ads?
Otherwise?
What about alternatives?

Back 51

3) Commercial Speech:
- Advertising for illegal activity, and false and deceptive ads, is not protected by 1st
- May prevent professionals from using trade names in ads/practice
- May prohibit an attorney from conducting in-person solicitation of clients
Exceptions:
- If the client is being provided free services
- Letter solicitation
- May not prohibit accountants from in-person solicitation clients for profit
- Not the same worries with accountants as there is with lawyers
- Other commercial speech can be regulated if intermediate scrutiny is met: (1) substantially related to an (2) important govt interest and (3) narrowly tailored
- Hypo: law prohibited attys from soliciting accident victims w/in 30 days of accident  Con b/c govt has impt interest in protecting accident victims
- It does not need to be the least restrictive alternative, only “reasonable fit”
- Hypo: law prohibited commercial solicitation in dorms  Con b/c means were
narrowly tailored even tho alt less restrictive means available
- Note: The right to ban the sale of a product (unless right is exercised) does not permit the banning of truthful ads on that product in its entirety

Front 52

4) Defamation:
Definitions:
Actual malice = ?
Public figures = ?
If P is a public official, running for public office or a public figure, he can recover for defamation by proving what?
If P is a “private figure” and the matter is of “public concern,” he may recover for defamation by proving what?
But…
If P is a “private figure” and the matter is not of “public concern,” he can recover presumed or punitive damages when?
What are the basic elements of defamation?

Back 52

Defamation:
- Definitions:
- Actual malice = D knew statement was false or acted in reckless disregard of truth
- Public figures = Those who thrust themselves into the limelight and likely have access to television cameras so as to rebut any defamatory remarks
- If P is a public official, running for public office or a public figure, he can recover for defamation by proving (i) falsity of the statement and (ii) actual malice
- Proof by clear and convincing evidence
- If P is a “private figure” and the matter is of “public concern,” he may recover for defamation by proving (i) falsity of the statement and (ii) negligence by D.
- P may recover presumed or punitive damages upon showing actual malice
- If P is a “private figure” and the matter is not of “public concern,” he can recover presumed or punitive damages without a showing of actual malice
- Liability for IIED must meet defamation standards
- Defamation:
(1) Defamatory statement
(2) That specifically identifies the P
(3) Publication by D to a 3rd party
(4) Damages

Front 53

Other rules re: Content-based regulation:
Can govt create liability for the truthful reporting of information that was lawfully obtained from the government?
Can govt create liability if media broadcasts a tape of an illegally intercepted call? Give 2 element rule
Can govt limit its own dissemination of information to protect privacy?
What about criminal trials and most criminal pre-trial hearings?

Government Employees:
Is speech by government employees on the job in the scope of their duties protected by the 1st amendment?

Back 53

Freedom of the Press – Speech and Privacy:
- Government may not create liability for the truthful reporting of information that was lawfully obtained from the government
Hypo: Reporters lawfully got rape victims name and published them in violation of law  Court held press could not be liable for violation of privacy when they truthfully obtained the information from govt. records
- Liability is not allowed if media broadcasts a tape of an illegally intercepted call if:
(1) Media didn’t participate in illegality and (2) involves matter public importance
Hypo: Taped copy of a believed “private conversation” broadcast on the radio, illegal intercepted/recorded  Court held this was not a violation of privacy
- Government may limit its own dissemination of information to protect privacy
- There is only a 1st Amendment right for the press and the public to attend criminal trials and most criminal pre-trial hearings
- Only in very limited circumstances is this taken away; Eg: protect children who are victims of sexual offenses
Government Employees:
- Speech by government employees on the job in the scope of their duties is not protected by the 1st amendment
Hypo: Guy writes memo about deputy sheriff breaking the law and he was punished  Court said that punishment was Con

Front 54

b. Time, Place and Manner Restrictions – Regulation of Conduct:

Appropriateness depends on forum:
List the 5 forums possible and define them and give egs

Back 54

1) Public Forums = Public property historically open to speech-related activities (eg: sidewalks, streets, parks)

2) Designated Public Forums = Public property not historically open to speech-related activities but opened for such activities on a permanent or limited basis (eg: school facilities on evening/weekends open for groups)

3) Limited Public forum = Government property not historically linked w/ speech-related activity but opened for a particular purpose (eg: school gym opened to host debate)

4) Non-Public Forums = Government property not historically linked w/ speech-related activities and not held open for such activity (Egs: military bases, areas outside prisons and jails, advertising space on city busses, sidewalks on post-office property, airports)

5) Privately Owned Property = everything else?

Front 55

1) Public Forums and 2) Designated Public Forums

Public forum regulations discriminate based on either (1) subject matter or (2) viewpoint  what level of scrutiny?

If do not discriminate on either subject matter or viewpoint  public forum regulations must: (give 3 element rule)

Permit fee rule?

Back 55

1) Public Forums and 2) Designated Public Forums

 Public forum regulations discriminate based on either (1) subject matter or (2) viewpoint  Strict Scrutiny
 If do not discriminate on either subject matter or viewpoint  public forum regulations must:
• (1) Pertain to the time, place, or manner of speech (ie content/viewpoint neutral);
• (2) They must serve an important government purpose; and
• (3) They must leave open adequate alternative places for communication barred
- Regulation of the public forums need not be least restrictive alternative of achieving the govt. purpose

 City officials can’t have discretion to set permit fees for public demonstrations as this would look to be content based
• Rationale: risks low fee for “good” speech and high fee for “bad” speech

Front 56

What about limited public forums, nonpublic forums and private property?

Back 56

3) Limited Public forum and 4) Non-Public Forums
- Government can regulate speech in non-public forums to reserve the forum for its intended use if:
(i) The regulation is reasonably related to a legitimate purpose; and
(ii) It is viewpoint neutral
- LPF Hypo: Hastings said that to be an officially recognized student group (and get school funds) it had to not discriminate. Christian legal society was not rec b/c it discriminated. Reg allowed b/c reasonable and viewpoint neutral
- NPF Hypo: govt may prohibit solicitation of money in airports (but not distribution of literature)
5) No 1st Amend. Right of Access to Use Privately Owned Property for Speech Purposes
- Hypo: No right to use shopping centers for speech
- However, there may be such rights in an individual state
constitutions

Front 57

Symbolic Speech:

Government can regulate conduct that “communicates” if: (2
element rule)

Specific rules to know:
(i) Flag burning 
(ii) Draft card burning 
(iii) Nude dancing 
(iv) Burning a cross 
(v) Contribution limits in election campaigns 
(vi) Expenditure limits 

Back 57

Symbolic Speech:
o Government can regulate conduct that “communicates” if:
 (1) It has an important interest unrelated to suppression of the message, and
 (2) The impact on communication is no greater than necessary to achieve the aforementioned government purpose

Specific rules to know:
(i) Flag burning  constitutionally protected speech
(ii) Draft card burning  not constitutionally protected speech
(iii) Nude dancing  not constitutionally protected speech
(iv) Burning a cross  constitutionally protected speech unless burners intended to threaten someone by doing so
(v) Contribution limits in election campaigns are constitutional but spending limits are not constitutionally protected

Front 58

B. First Amendment: Association
- Laws that prohibit or punish group membership must meet what level of scrutiny?
- Exception: To punish membership in a group it must be prove that the person: (3 element rule)
- Laws that require disclosure of group membership, where such disclosure would chill association, must meet what level of scrutiny?
- Law that prohibit a group from discriminating
- Gr?
- 2 Exceptions:

Back 58

B. First Amendment: Association

- Laws that prohibit or punish group membership must meet strict scrutiny
- To punish membership in a group it must be prove that the person:
(1) Actively affiliated with the group;
(2) Knowing of its illegal activities; and
(3) Has the specific intent of furthering those illegal activities
- Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny
- Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity (see below)
- Jaycees: Minn law rohibited private groups from discriminating. P argued this violated freedom of assoc. Court upheld the law saying compelling interest in getting rid to gender discrimination
Exceptions:
(1) Intimate Associations
(2) Where Expression is Integral to the Message

Front 59

C. First Amendment: Religion

1. Free Exercise Clause:
Gr:
Clause forbids?
General exception to strict scrutiny rule?
2 exceptions to this?

Back 59

C. First Amendment: Religion

Free Exercise Clause:

- Laws which can be shown to be designed specifically designed to so interfere/limit religion are subject to a strict scrutiny review
- Clause forbids:
1) Requiring office holders/employees to take religious oath
2) Excluding clerics from public employment
3) Courts declaring religious belief false
- Court has never found a law to pass strict scrutiny when it specifically
discriminates
- Free exercise clause cannot be used to challenge a neutral law of general applicability (regardless of how much that law may burden their religious practices)
- Exceptions:
1) Government may not deny benefits to individuals who quit
jobs for religious reasons
2) Right of Amish not to educate childre

Front 60

C. First Amendment: Religion

2. Establishment Clause:
First question?
Otherwise, what 3 prong test is applied?

Back 60

1) Facial sect preference?
GR: Government cannot discriminate against a certain religious sect(s) or religious speech absent satisfying strict scrutiny

2) If not, Lemon Test for establishment clause violations:
(1) There must be a Secular purpose for the law
Hypo: no secular purpose to law that puts 10 commandments in courthouse
(2) The Effect must be neither to advance nor inhibit religion
- Govt. must not symbolically endorse religion or particular religion
Hypos:
- Nativity scene in front of courthouse  Uncon b/c a symbolic endorsement of religion
- A menorah, X-mas tree and declaration of tolerance in front of courthouse  Con as it was part of an overall display that promotes tolerance
- 6 foot high 10-commandments monument, not paid for by govt, one of many monuments  Court held this was not a state endorsement of religion
(3) There must not be eXcessive entanglement with religion
Hypo: Government may not directly pay parochial teacher’s salaries

Front 61

Additional Considerations

Government sponsored religious activity in
public schools?
Can government give financial assistance to colleges, and hospitals?
Can government give “financial assistance” or vouchers to a defined class?

Back 61

Government sponsored religious activity in public schools is unconstitutional
Public school sponsored religious activity is deemed invalid but accommodation of religion is valid
Hypos:
- Clergy prayer at public school graduation  uncon
- A student delivered prayer before a high school football game  uncon
- A moment of silent prayer or an “opt out” prayer period  uncon
Note: if school opens facilities, religious student and community groups must have the same access to a school’s facilities as non-religious groups do
Government may give financial assistance to colleges, and hospitals, so long as funding won’t be used directly for religious instruction
- E.g. often there are detailed administrative regulations to ensure there is no
use of the funds for religious advancement and because of this the court finds
there is “excessive entanglement”
Moreover, government may give “financial assistance” or vouchers to a defined class so long as class is defined without reference to religion or religious criteria
This is true even if most of the people that receive the aid then use it to attend religiously affiliated parochial schools
E.g. 96% of the federally issued vouchers were used in parochial schools it was OK b/c it was parent choice not

Front 62

D. Equal Protection
Approach to Equal Protection Questions: 3 questions
Constitutional Provisions Concerning Equal Protection:
Equal protection clause of 14th applies to?
Equal protection applies under 5th amendment applies to?

Back 62

Approach to Equal Protection Questions:
(1) What is the classification or fundamental right triggering EP?
How is the government making a distinction between people
(2) What level of scrutiny should be applied to the classification?
(3) Does this law meet the level of scrutiny?
Constitutional Provisions Concerning Equal Protection
Equal protection clause of 14th applies only to state and local governments
Equal protection applies to the federal government through the DP clause of the 5th

Front 63

List the fundamental rights protected under EP not due process

Back 63

1. First Amendment
2. Right to travel
3. Right to vote

Front 64

Right to travel: Go!

Back 64

Right to Travel:
- Laws that prevent people from moving into a state must meet strict scrutiny
- Durational residency requirements must meet strict scrutiny
- Durational residency requirements = when one must live in a jurisdiction for an established amount of time in order to get a certain benefit
Examples to Memorize:
One-year residency to receive welfare  invalid
One year residence to get state subsidized medical care  invalid
One-year residence to vote in the state  invalid
30-day residency to vote in the state  valid (50 days is the maximum constitutional allowed)
One-year residency to get a divorce  valid
- Also mention P&I Clause of 14th amendment also can be used to invalidate law
that infringes on right to travel
- Note: Restrictions on foreign travel need meet only the rational basis test b/c
Court has said there is no fundamental right to international travel

Front 65

Right to Vote:
Gr
One person-one-vote rule
At-large elections?
Use of race in drawing election district lines?
Bush v. Gore?


Fundamental Right to Education?!

Back 65

Right to Vote:
- Laws that deny some citizens the right to vote must meet strict scrutiny
Hypo: Fees (poll-taxes) to vote  unconstitutional
Hypo: Property ownership requirements for voting or holding public office  uncon unlewss water districting voting
Hypo: Req voters have kids in the school district to vote on school district issues unconstitutional
- Qualification: For laws designed to protect integrity of electoral process, they will be upheld if they are on balance desirable
Hypo: law that reqs photo ID to vote  Constitutional b/c on balance desirable (trying to prevent voter fraud)
- One person-one-vote must be met for all state and local elections
- At-large elections are constitutional, unless proof of discriminatory purpose
- Hypo: City had a 3-person city counsel. They could have divided city into 3 districts but didn’t. Instead, they let everyone vote for all 3 seats – City was 2/3rds white. No blacks ever got voted in. Court said the racial classification couldn’t be shown absent the discriminatory purpose of the law being shown
- Use of race as a predominate factor in drawing election district lines must meet strict scrutiny
- Challenger has burden of proving race-based motive (bizarre shape can be used as evidence)
- Counting uncounted votes without specific standards for doing so violates the equal protection clause when done during/in a presidential election (Bush v. Gore)
Note: No Fundamental Right to Education:
Funding public schools through local property taxes was held constitutional.
It didn’t matter rich communities had better schools than poor communities

Front 66

There are (1) suspect classifications, (2) quasi-suspect classifications and (3) other classifications

What are the 2 suspect classifications?

What are the 3 ways that discrimination based on suspect classification can be proven?

Back 66

1) National Origin/ Race
2) Alienage


3 ways discrimination based on suspect classification can be proven:
• (1) Facial discrimination
o Hypo: Law saying “black and white children could not attend the same schools”  facial classification
• (2) Discriminatory application
• (3) If the law is facially neutral, law has (a) discriminatory impact and (b) discriminatory intent

Front 67

Classifications benefiting minorities [Affirmative Action]: Level of scrutiny? 2 ways it can be satisfied?

Back 67

Classifications benefiting minorities  Strict scrutiny

Two main ways to satisfy SS:
1) Past Discrimination  Numerical set-asides (quotas) require clear proof of persistent and readily identifiable past discrimination and cannot be based on general past wrongs to satisfy SS
Hypo: 30% public work set-aside for minority business; no showing this was a remedy for past discrimination and thus unconstitutional  does not satisfy SS
Hypo: AL police engaged intentional race discrimination so every time a white was hired a black had to be hired  satisfies SS

2) Diversity in Schools
- Colleges/universities may use race as one factor in admissions decisions to help minorities and increase diversity; can’t be defining criterion
- Exception: Cannot use race as a means of giving “points” to minority applicants in regard to admissions scores
- Diversity not sufficiently compelling interest for public high school systems

Front 68

Alienage, level of scrutiny, 3 exceptions

Back 68

2) Alienage Classifications  Strict Scrutiny
- Laws that say only US citizens may receive welfare benefits have civil service jobs or can be admitted to bar  Held unconstitutional under strict scrutiny

3 Exceptions where rational basis is applied:
1) Alienage classifications related to self-government and the democratic process; Classifications permitted when regulating:
(a) Voting
(b) Serving on a jury
(c) Being a police officer
(d) Being a teacher
(e) Being a probation officer
(f) But not being a notary public
2) Congressional discrimination against aliens b/c Congress has the plenary power to regulate immigration so they can discriminate
3) Classification of illegal/undocumented aliens
Exception: Appears intermediate scrutiny is used to evaluate constitutionality of laws discriminating against the children of undocumented aliens

Front 69

Quasi-Suspect Classifications Getting Intermediate Scrutiny Review:

List the 2 areas:

Back 69

1) Gender
2) Legitimacy

Front 70

Gender Classifications: Language that they use?
First question, 3 options

Back 70

Gender Classifications  Intermediate scrutiny – Govt has the burden of proving an “exceedingly persuasive justification” that the gender disc is sub related to impt govt interest
How is the existence of a gender classification proven?
(a) Facial discrimination
Hypo: Females could buy 3.2% beer at 18, men not until 21  unconstitutional gender classification under the intermediate level of review
Hypo: Only men can attend public military school  uncon
(b) Discriminatory application
(b) If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent
Hypo: Regulation that police officer must be 5’10” and 140 pounds; discriminatory impact, but no proof of discriminatory intent  RB review

Front 71

Gender classifications benefiting women be treated

What rationales for classifications benefitting women are invalid?
What rationales for classifications benefitting women are valid?

Back 71

Gender classifications benefiting women be treated
- Gender classification benefiting women based on role stereotypes  uncon
Hypo: Female in divorce can get alimony but men can’t  uncon
- Gender classifications that are designed to remedy (1) past discrimination and (2) differences in opportunity  constitutional
Hypo: Diff formula for taxing women vs. men  con
- Long history of wage discrimination in US economy so the difference in the formula for taxes owed is designed to remedy this
Hypo: Navy reg that if man not promoted w/in 6 yrs he would be discharged and if woman not promoted w/in 10 yrs discharged  con
Allowed b/c women have less opportunities for advancement b/c of physical attributes
Note: Intentional discrimination against men is generally invalid
However, in certain cases it passes intermediate scrutiny
E.g. statutory rape laws and all-male draft laws, and requiring fathers but not mothers to prove parentage of non-marital children born abroad in order to obtain US citizenship for them

Front 72

Legitimacy Classifications – Discrimination Non-Marital Kids: Intermediate scrutiny
Laws that deny a benefit to all non-marital children, but grant it to all marital children are?
Laws that deny a benefit to some non-marital children, but grant it to all marital children are?

Back 72

Legitimacy Classifications – Discrimination Non-Marital Kids: Intermediate scrutiny
Laws that deny a benefit to all non-marital children, but grant it to all marital children are deemed unconstitutional on their face
Hypo: state law that said only marital children can inherit from fathers  uncon
Laws that deny a benefit to some non-marital children, but grant it to all marital children are subject to an intermediate level of review
Hypo: non-marital children can inherit only if paternity is established w/in their lifetime  con b/c law substantially related to achieving goal of preventing fraud

Front 73

All Other Classifications Getting Rational Basis Level of Review:
Gr
Examples

Back 73

All Other Classifications  Rational basis
Examples of those classification that get RB level of review include:
(1) Age discrimination:
(2) Disability discrimination:
(3) Wealth discrimination:
(4) Economic regulations:
Hypo: In order to be pushcart vendor, person must have already worked there for 8 yrs  con under RB
(5) Sexual orientation discrimination:
Romer v. Evans Hypo: law that repeals all laws in the state protecting gays from discrimination  uncon under RB
Remember, government will basically never lose under RB level of review

Front 74

Levels of Scrutiny: Memorize these EXACT definitions verbatim
Rational Basis Test:
Gr
Whose purpose are we talking about here?
Burden of Proof is born by ?
Intermediate Scrutiny:
Gr
Whose purpose?
How restrictive?
Burden of Proof is born by ?
Strict Scrutiny:
Gr
Whose purpose?
How restrictive?
Burden of Proof born by ?

Back 74

Levels of Scrutiny:
Rational Basis Test:
A law is upheld if it is rationally related to a legitimate government purpose
Only legitimacy is required
Any conceivable legitimate purpose is enough regardless of what the real purpose for the enactment of the law may be
This is very deferential to the government
Burden of Proof is born by Challenger
Intermediate Scrutiny:
A law is upheld if it is substantially related to an important governmental purpose
Now we need more than mere legitimacy
The governmental goal must actually be “important” and in that matter they will look to the “actual” reason the law is enacted
Burden of Proof is born by the Government
Strict Scrutiny:
A law is upheld if it is necessary to achieve a compelling state interest
Now we need a showing of necessity for the law’s enactment
The court will look at the “actual” reason the law is enacted
Moreover, the Government must show that there is no less restrictive means of achieving its goal
This is very deferential to the challenger
Burden of Proof born by Government

Front 75

E. Substantive Due Process:
- Non-Fundamental Rights/ Economic
Liberties?

Back 75

Substantive Due Process:

Non-Fundamental Rights/ Economic Liberties:
- Constitution provides only minimal protection for economic liberties
- RB test is used to review laws affecting or amounting to a taking of one’s economic rights and in that respect the government will almost always win
- Government almost always wins when law is subject to RB review

Front 76

Fundamental Rights Protected Under Substantive Due Process Rights: List them by level of review

Back 76

Which Rights Trigger the Following Tests/Levels of Review
1. Strict Scrutiny
Right to marry
Right to procreate
Right to custody of children
Right to keep family together
Right to control child raising
Right to purchase and use contraceptives
Right to travel
Right to vote
Freedom of speech
Freedom of association
Free exercise of religion (if law burdening religion is not a neutral law of general applicability)

2.Undue Burdens Test
Right to abortion

3.Rational Basis Review
Right to practice a trade or profession

Right to physician assisted suicide

Right to education

Note: These are NOT fundamental rights so don’t get confused

4.Unknown Scrutiny

Right to engage in private consensual homosexual activity

Right to refuse medical treatments

Front 77

• Right to Marry:
o Note: Restricting rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests
• Right to Procreate/Have Children:
• Right to Custody of One’s Children:
o Note: State may create an irrebuttable presumption that a married woman’s husband is the father of her child without issue.
• Right to Keep the Family Together:
o Family is used here to include extended families as well
 Hypo: City limited # of unrelated people could live in the same household; the definition of related excluded grandmother and two grandchildren from living together with their 1st cousin  Uncon
• Right to Control the Upbringing of One’s Children
o Right to send kids to parochial school
o It is a violation of a parent’s Due Process Privacy rights to require them to allow grandparents to visit their grandchildren
• Right to Purchase and use Contraceptives:

Right to Abortion: give analysis

Back 77

Analysis depends on when in the pregnancy the abortion is occurring:
• Pre-viability: States may not prohibit abortions, but may regulate them if regulation doesn’t create an undue burden on ability to obtain abortions
o Viability = when fetus can survive on its own
 24 hour waiting period for abortions  Constitutional
 Abortions conducted by licensed physicians  Constitutional
 Prohibition of “partial birth abortions” unless necessary for the health/safety of the mother  Constitutional
• Absent the “health” exception however this would be an undue burden
 Spousal consent/notification laws before allowing women to get an abortion  Uncon
 Parental notice and consent laws for unmarried minors  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 that either:
• It would be in the minor’s best interests; OR
• That she is mature enough to decide for herself
• Post-viability: States may prohibit abortions unless the abortion is medically necessary to protect the woman’s life or health
• Note: The federal government has no duty to subsidize abortions or provide abortions in public hospitals
• Note: Only right of privacy (of those with clear tests) where strict scrutiny not used

Front 78

• Right to Engage in Private, Consensual, Adult Gay Activity/Intimate Sexual Conduct:
o Govt may not make it a crime for fully consenting adults to engage in private intimate sexual conduct
o Subject to unknown level of review
• Right to Refuse Medical Treatment:
o Competent adults have the right to refuse medical treatment
 This includes even “life saving” treatment (e.g. food and water)
• However, a state may require clear and convincing evidence that a person wanted treatment terminated before it is ended
 A state may prevent family members from terminating treatment for another b/c right is the individuals
o Note: There is no privacy right to physician-assisted suicide
o Subject to unknown level of review
• Right of individuals to have guns
o Not absolute right  may reg where (no guns in schools) and who has guns (felons, mental issues)
o Subject to unknown level of review

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Application of the Bill of Rights to Federal and State Governments?
Gr abt incorporation?
Exceptions:

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Application of the Bill of Rights to Federal and State Governments:
- Bill of Rights applies directly to the federal government
- However, the Bill of Rights is applied to state and local governments through its incorporation into the Due Process Clause of the 14th Amendment
Exceptions: Bill of Rights Provisions not incorporated by 14th to States
2nd Amendment: Right to bear arms
3rd Amendment: Right to not have soldier quartered in your home
5th Amendment: Right to grand jury indictment in criminal cases
7th Amendment: Right to jury trial in civil cases
8th Amendment: Right against excessive fines

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F. Procedural Due Process
Three part approach to these questions:

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Procedural Due Process

Three part approach to these questions:

1) Is there a deprivation of life, liberty or property
2) Was it intentional/reckless on the part of the govt?
3) What type of procedure is required

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1) Has There Been a Deprivation of Life, Liberty, or Property?
• Deprivation of Liberty:
o One of 2 things must occur?
• Egs?
• Deprivation of Property:
o When does this happen?
• Egs?

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1) Has There Been a Deprivation of Life, Liberty, or Property?
o Deprivation of Liberty occurs when P has:
 Lost significant freedom of action (eg: right to K) or
 Been denied a freedom provided by the Constitution or a statute (written laws)
• Examples of Liberty Interests:
- Freedom from being institutionalized
- Freedom to contract as one pleases
• Examples of Non-Liberty Interests:
- Harm to reputation, by itself, is not a loss of liberty as there must be an economic or tangible loss as well
- Prisoners rarely have liberty rights
o Deprivation of Property:
 Occurs when a person has a legitimate claim or “entitlement” to a benefit under state or federal law and that entitlement is not fulfilled
• Entitlement = A reasonable expectation of cont. receipt of a benefit
o Examples of Property Interest:
- Continued attendance at a public school
- Welfare benefits
- Gov’t promised job for a yr and renegs  yes DP req b/c rx expectation

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2) Was it intentional/reckless on the part of the govt?

o Generally, there must be ______ government action or at least _____ action for liability to exist
 Government ______ is insufficient for a deprivation of Due Process
 In _____ situations, the government can be held liable only if its conduct _________
o Generally, the government’s failure to protect people from _________ harms does not constitute a denial of due process rights
 Due Process is required only if the government ______ the danger being sued upon or is in govt custody

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o Generally, there must be intentional government action or at least reckless action for liability to exist
 Government negligence is insufficient for a deprivation of Due Process
 In emergency situations, the government can be held liable only if its conduct “shocks the conscience”
• Hypo: Police chase ended in death of young boy. Family sued on DP violation (deprivation of life)  no violation (did not shock conscience)
o Generally, the government’s failure to protect people from privately inflicted harms does not constitute a denial of due process rights
 Hypo: 4 year old beaten by his parent  no violation
• Due Process is required only if the government literally creates the danger being sued upon or is in govt custody

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3) What type of procedure is required?

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 The type and extent of required procedures are determined by a balancing the:
• (1) Importance of the interest to the individual and
• (2) The ability of additional procedures to increase the accuracy of the fact-finding; AGAINST
• (3) The government interest in fiscal and administrative efficiency
 Usually inefficiency
 Lots of discretion  learn egs below

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• Commitment to a Mental Institution:
o Adults  ?
o Children  ?
• Welfare Benefits  ?
• Social Security Disability Benefits  ?
• Termination of “Tenured” or “For Cause” Public Employees  ?
• Student Disciplined at Public Schools  ?
o Exception: ?
• Termination of Parent’s Custody Rights  ?

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• Commitment to a Mental Institution:
o Adults  Except for in an emergency, to institutionalize an adult there must be notice/hearing provided
o Children  When a parent institutionalizes a child there only has to be a screening by a neutral fact-finder
• Welfare Benefits  Before benefits are terminated there must be notice/ hearing
• Social Security Disability Benefits  Before benefits are terminated there only needs to be a post-termination hearing
• Termination of “Tenured” or “For Cause” Public Employees  notice, opportunity to respond and evidentiary hearing
• Student Disciplined at Public Schools  notice of the charges/ opportunity to explain
o No trial-type hearing is required however
o Exception: Corporal punishment does not req any dp
• Termination of Parent’s Custody Rights  notice and a hearing

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• Punitive Damages:
o Grossly _______ punitive damages awards violate DP
o PD require _____ be given to jury and ______
 Instructions to guide ______ of punitive awards
• American Citizen Enemy Combatants  ?
• Civil Forfeitures  ?
o Exceptions: ?

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• Punitive Damages:
o Grossly excessive punitive damages awards violate DP
o PD require instructions be given to jury and judicial review
 Instructions to guide reasonableness of punitive awards
• American Citizen Enemy Combatants  notice of charges, rep by lawyer and a meaningful factual hearing
• Civil Forfeitures  notice and a hearing
o Exceptions: exigent circumstances, pre-judgment attachment or govt. seizure of assets
 Exigent circumstances = when there is reason to believe the individual would get rid of property upon notice given
 In these cases notice can be given post-seizure
o Note: Government may seize property used in illegal activity even ifthat property has an innocent owner

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• Ex Post Facto law = ?
o Exception: ?
 Retroactive ____ must only meet ____ review
• Bill of attainder = ?

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• Ex Post Facto law = law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after that crime had already been committed.
o Exception: inapplicable to civil liability
 Retroactive civil liability must only meet RB review
 Exam Tip: Ex post facto is usually used to trick you in questions pertaining to K clause.
• Bill of attainder = a law that directs the punishment of a specific person or persons without them being given a judicial trial

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Takings Clause  ?

What are the 3 questions you ask in this analysis?

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• (1) Is There a Taking?
o Possessory taking = ?
 City law req apartment building owners provide one cubic foot of space for cable boxes  ?
o Regulatory taking = ?
 City law prohibiting building from developing airspace above its newly acquired building investment  ?
 City law saying you can’t build house on beachfront property  ?
 Government “conditions” on property development must be justified by a benefit roughly _____ to the burden imposed; otherwise it constitutes a taking
 Property owner _____ bring a takings challenge to regulations that existed when the property was acquired
 Temp. denying owner use of property is not a taking so long as the government’s action is ____
• (2) Taking for Public Use?
o Taking is for a public use so long as government acts out of a ____ the taking will _____
 Taking private property from one party and giving it another private party to make a real estate development  ?
• (3) Is Just Compensation Paid?
o Just compensation is measured in terms of ___ to _____

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Takings Clause  Government may take private property for public use if it provides the party from which it is taking the property just compensation for doing so

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• (1) Is There a Taking?
o Possessory taking = Government (actual) confiscation or physical occupation of property constitutes a taking
 City law req apartment building owners provide one cubic foot of space for cable boxes  Taking requiring only nominal damages
o Regulatory taking = Government regulation is a taking if it leaves no reasonably economically viable use of the property
 City law prohibiting building from developing airspace above its newly acquired building investment  not taking b/c still had economically viable use
 City law saying you can’t build house on beachfront property  taking
 Government “conditions” on property development must be justified by a benefit roughly proportionate to the burden imposed; otherwise it constitutes a taking
 Property owner may bring a takings challenge to regulations that existed when the property was acquired
 Temp. denying owner use of property is not a taking so long as the government’s action is reasonable
• (2) Taking for Public Use?
o Taking is for a public use so long as government acts out of a reasonable belief the taking will benefit the public
 Taking private property from one party and giving it another private party to make a real estate development  public use b/c good for community
• (3) Is Just Compensation Paid?
o Just compensation is measured in terms of loss to owner; the gains to the taker are entirely irrelevant