Con Law Srat And Tact

Front 1

If it is a Fourteenth Amendment problem is it Equal Protection of the Laws or Due Process

Back 1

Equal Protection
state statutory classifications no fedeal or private

will have a classification built into the statute (class vs class) or if the statute is Federal than there is no equal protection issue. The equal protection clause does not apply to the Federal Government. It only applies to Government Action (State Action) not private parties where the Government played no substantial role.

Front 2

If the action is by a private party what are the two indicators of substantial Government Involvement (state action)?

Back 2

Does the government encourage or benefit from the private conduct (nexus)

Does the private conduct have a public function normally exclusively reserved for the state

Front 3

What will invalidate a statute in which discrimination is an issue?

Back 3

1 Discriminatory of its face
2 Neutral but unequally administered
3 Impermissible Motive (intent to discriminate)

Front 4

New Statute with no information about backround

Back 4

Can only be invalid on its face since it has not been applied and the motive is not known

Front 5

What are the Levels of Scrutiny (for classification issues

Back 5

Strict Scrutiny
Intermediate Scrutiny
Rational relation

Front 6

What types of classifications require Strict Scrutiny?

Back 6

Suspect Classifications - RAF Race or Alienage or relating to WHO may exercise a fundamental right

Front 7

How many fundamental rights only demand Strict Scrutiny?

Back 7

4

Front 8

What are the 5 fundamental rights?

Back 8

Association
Voting
Interstate Travel
Privacy

Front 9

What type of classification would be considered Interstate Travel

Back 9

Residency requirements as a condition of receiving VITAL government services

Front 10

What are some non-vital Government Services

Back 10

Tuition Reductions
Divorce

Front 11

What are some examples of Privacy rights

Back 11

Marriage
Procreation
Abortion

Front 12

Which Voting requirements would not be suspect?

Back 12

Age
Residency
Citizenship

Front 13

What is Strict Scrutiny?

Back 13

The statute must be necessary to promote a compelling government interest

Front 14

What kinds of classifications does Intermediate Scrutiny apply to?

Back 14

Quasi Suspect Classifications

Front 15

What are the two quasi suspect classifications?

Back 15

Gender and Legitimacy

Front 16

What is Intermediate scrutiny?

Back 16

substantially important

The law must be substantially related to an important state interest in order to be valid

Front 17

Lalli v. Lalli

Back 17

The Court found that a statute prohibiting inheritance from the father to illegitimate children unless paternity is established during the father's lifetime was substantially related to the states interest in promoting orderly distribution of property

Front 18

Would a statute requiring that paternity be established within the first two years of the child pass Intermediate Scrutiny?

Back 18

No. Two years is not enough time to bring a claim and the threat of fraudulent claims is not sufficiently great to justify a two year deadline.

Front 19

What does Rational relation apply to?

Back 19

All other classifications

Front 20

What is Rational relation?

Back 20

If there is a set of facts imaginable that would make the law a reasonable way to achieve a legitimate governmental purpose then the law is valid

Front 21

What if there is no classification in the facts?

Back 21

Then it is a Due Process Question

Front 22

Can a Due Process claim be brought against Federal Government?

Back 22

Yes

Front 23

What are the two types of Due Process problems?

Back 23

Substantive and Procedural

Front 24

Procedural Due Process

Back 24

Addresses the fairness of the procedure used to deprive someone of a significant interest, typically in property but also in life (incarceration)

Is Notice and a Hearing necessary when a right is removed?

Front 25

What does the most common property type question on the MBE involve?

Back 25

Government Jobs

Front 26

Do people typically have a property right in continued public employment?

Back 26

No, unless the facts suggest something like Tenure or a restrictive contract provision such as 'can only be fired for cause'

Front 27

Are Expectations enough to establish a property right?

Back 27

No, there must be a law under which the person has a legitimate claim to the benefits

Front 28

Substantial Due Process

Back 28

Much more likely on the MBE

Becomes an issue when the state action substantially interferes with a Fundamental right. In such a case the statute must meet the same Strict Scrutiny as an equal protection law.

Front 29

What about non fundamental rights and Substantive Due Process?

Back 29

Rational Scrutiny

Front 30

Who has the burden of persuasion in a Substantive Due Process Challenge?

Back 30

Fundamental Rights - Government
Non Fundamental Rights - Challenger

Front 31

What are the types of Freedom of Expression?

Back 31

Speech
Press
Association
Assembly

Front 32

What does any statute regulating freedom of speech or association have to have?

Back 32

Narrow and Definite Standards

Front 33

What is Overbreadth?

Back 33

Statute prohibits unprotected speech and some protected speech.

Front 34

What is Vagueness?

Back 34

The statute is so unclearly defined that a reasonable person would have to guess at its meaning

Front 35

Under the Constitution can language be prohibited for being Annoying?

Back 35

No. So a statute prohibiting annoying language would not be constitutional even if the language in question could have been prohibited as obscene

Front 36

Which branch of gov does the commerce clause apply to?

Back 36

Federal

Front 37

Is the commerce clause Sword or Sheild?

Back 37

Sword

Front 38

How many categories of activities involving interstate commerce can Congress regulate?

Back 38

4

Front 39

What are the categories of activities involving interstate commerce that Congress may regulate?

Back 39

1 Channels of interstate commerce
2 Instrumentalities of interstate commerce
3 Articles moving in interstate commerce
4 Activities substantially affecting interstate commerce

Front 40

What two determinations will validate a statute dealing with the intestate commerce clause?

Back 40

1 If the activity is commercial and
2 if the activity substantially affects interstate commerce or is part of a general class of activities that collectively, substantially affect interstate commerce.

Front 41

What if the activity is not commercial when faced wit a question about the interstate commerce clause?

Back 41

Then the activity must have a 'pretty obvious connection' to interstate commerce

Front 42

For the MBE what if the activity being regulated by the federal gov involves the use of an item after it's finished traveling through interstate commerce, or if the activity being regulated is non-commercial?

Back 42

The statute may have gone too far

Front 43

What is the difference between application of the commerce clause to the federal gov and its application to the states?

Back 43

For the federal gov it is a source of power
For the states it is a limitation

Front 44

When is the only time that to analyze a state statutes impact on interstate commerce under the commerce clause?

Back 44

When there is no relevant federal legislation

Front 45

What if relevant federal regulation exists with regard to a state regulation of interstate commerce?

Back 45

Supremacy Clause analysis

Front 46

What is the standard if there is a state regulation of interstate commerce and there is no relevant federal regulation on the issue?

Back 46

Then does the state regulation unduly burdens interstate commerce

Front 47

What are the two questions to ask when using the Supremacy clause?

Back 47

1 Did Congress expressly authorize or prohibit state regulation? (would control)

2 otherwize does the federal law preempt the state law by directly contradicting it or in the absence of direct contradiction did Congress intend to occupy the entire field.

Front 48

What are the four factors indicating that Congress intended to occupy the entire field?

Back 48

TPSU

1 Whether the subject matter is traditionally classified as local or federal

2 How pervasive the federal regulation is

3 How similar are the federal and state laws (the more similar the more likely the federal law was intended to supersede state law

4 Whether there is a need for uniform federal regulation

Front 49

What is the mnemonic for the Supremacy Clause?

Back 49

PUSH

Pervasiveness, Uniformity, Similarity, History

Front 50

Where is the Commerce clause found?

Back 50

Article I, Sec. 8, Clause 3

Front 51

Where is the Welfare Clause found?

Back 51

Article I, Sec. 8

Front 52

What power does the welfare clause give to Congress?

Back 52

Tax and Spend but ONLY Tax and Spend

Front 53

Can Congress pass any legislation for the general welfare?

Back 53

NO! It can only tax and spend for the general welfare

Front 54

Can the states legislate for the general welfare?

Back 54

Yes under their police power

Front 55

Does the Federal Gov have police power?

Back 55

NO

Front 56

Where is the Contracts Clause

Back 56

Article I, Sec. 10

Front 57

Is the Contracts Clause a sword or a shield?

Back 57

It is a shield (Prohibition)

Front 58

What does the Contracts Clause Prohibit?

Back 58

It prohibits the states from passing any law that impairs the obligations of contracts

Front 59

Does the Contracts Clause apply to Congress?

Back 59

No

Front 60

What is the first thing to look for when the Contracts Clause is an answer choice?

Back 60

Does the contract predate the legislation

Front 61

Can the state regulate contract formation prospectively?

Back 61

Yes

Front 62

Is there any case in which the state may modify a contract?

Back 62

Yes, when 1. the modification serves an important and legitimate public interest AND

2. is necessary to achieve that public interest AND

3. the contract impairment is reasonable under the circumstances

Front 63

What if the state is a party to the contract?

Back 63

then he state need not adhere to a contract that surrenders, from the start, an essential attribute of its sovereignty (such as the police power or eminent domain)

Front 64

Where is the Privileges and immunities Clause?

Back 64

There are two of them
The Privileges and Immunities Clause of the 14th amendment and the Interstate Privileges and Immunities Clause Article IV, Sec. 2

Front 65

Are the PRivilege and Immunity Clauses Shields or Swords?

Back 65

They are both limitations on the state

Front 66

What does the P and I Clause of the 14th Amendment prohibit the state from doing?

Back 66

It Prohibits the state from clearly infringing on the privileges and immunities of National citizenship

Front 67

What are the fundamental rights shared by all citizens that the P and I Clause of the 14th amendment protects?

Back 67

Freedom to travel from state to state
To petition Congress for redress of grievances
To vote for national officers
To assemble peaceably
To discuss matters of national legislation

Front 68

Why shouldn't one rely on the P and I Clause of the 14th amendment on the MBE?

Back 68

Because the Due Process and Equal Protection Clauses of the 14th Amendment also prohibit the states from infringing on citizens fundamental rights and is a stronger argument

Front 69

What does the Interstate P and I Clause of the 14th Amendment prohibit the states from doing?

Back 69

It prohibits the states from discriminating against out of state citizens and residents in matters concerning essential activities (pursuing one's livelihood or owning property) and basic rights (medical care and access to the courts)

Front 70

Does the Interstate P and I Clause of the 14th amendment protect corporations or non-U.S. citizens (Aliens)?

Back 70

No

Front 71

Are there any situations where the state may discriminate against an out of state citizen?

Back 71

substantially Related No less restrictive
Yes if the discrimination is closely related to a substantial state interest and there is no less restrictive means available to achieve the purpose