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156 Cards in this Set
- Front
- Back
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REQUIREMENTS FOR CASES & CONTROVERSIES
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1. STANDING
2. RIPENESS 3. NOT MOOT 4. NOT A POLITICAL QUESTION |
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WHAT IS NEEDED FOR STANDING?
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1. INJURY - P is injured or IMMINENTLY will be.
2. CAUSATION & REDRESSIBILITY - P must allege and prove that D caused the injury and that a favorable decision is likely to remedy the situation. |
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THIRD PARTY STANDING - GENERAL RULE AND EXCEPTIONS
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GENERAL RULE - NO 3RD PARTY STANDING
EXCEPTIONS: 1. Close relationship b/t P and injured 3rd party 2. Injured 3rd party unlikely to be able to assert his own rights 3. ORGANIZATION may sue if: i) members would have standing to sue ii) interests are germane to org's purpose iii) neither the claim nor relief req's participation of individual members |
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RULE FOR STANDING BASED ON STATUS AS TAX PAYER
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TAX PAYER'S MAY NOT SUE FOR GENERALIZED GRIEVANCES
Only allowed where as pursuant to a federal statute as violating the establishment clause. |
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RIPENESS - WHAT IS IT? WHAT IS THE TEST
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Issue: whether a court can grant PRE-ENFORCEMENT REVIEW of a statute or regulation.
TEST: (1) THE HARDSHIP WILL BE SUFFERED W/O PREENFORCEMENT REVIEW & (2) THE ISSUES AND RECORD ARE FIT FOR JUDICIAL REVIEW |
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MOOTNESS - GENERAL RULE
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If events after filing of suit END P'S INJURY case must be DISMISSED AS MOOT - you need a LIVE CONTROVERSY at ALL stages of the proceeding.
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MOOTNESS - EXCEPTIONS
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1. WRONG CAPABLE OF REPETITION BUT EVADING REVIEW
2. VOLUNTARY CESSATION - D stops harm but can voluntarily start it whenever he wants 3. CLASS ACTION SUITS SO LONG AS ONE MEMBER HAS ONGOING INJURY |
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POLITICAL QUESTION DOCTRINE - WHAT ARE THE TYPE OF CASES LIKELY TO TRIGGER THIS RULE
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1 - REPUBLICAN FORM OF GOV'T CLAUSE
2 - CHALLENGES TO PREZ'S CONDUCT OF FOREIGN POLICY 3 - CHALLENGES TO THE IMPEACHMENT & REMOVAL PROCESS 4 - CHALLENGES TO PARTISAN GERRYMANDERING |
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FINAL JUDGMENT RULE
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SCOTUS will hear a case only after there has been a FINAL JUDGMENT from:
1. the highest state court 2. USCoA, or 3. A 3 judge federal district court |
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ROLE OF STATE LAW IN AVAILABILITY OF REVIEW - what is the test?
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For SCOTUS to review a state court decision, there must not be a INDEPENDENT AND ADEQUATE STATE LAW GROUND fro decision (ie, no need to decide fed question b/c decision on state law grounds handles it)
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11th AMENDMENT - WHAT DOES IT DO?
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Bars FEDERAL courts from hearing suits brought by foreign and/or private parties against STATE GOVERNMENTS
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DOCTRINE OF SOVEREIGN IMMUNITY - WHAT DOES IT DO?
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Bars suits AGAINST STATE GOVERNMENTS in STATE COURTS - even on federal claims.
Further State v. State claims not allowed in state courts - original juris in SCOTUS |
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EXCEPTIONS TO SOVEREIGN IMMUNITY
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1. Waiver by state
2. Suits under SECTION 5 OF THE 14th AMENDMENT (cong. may not auth. suits against the states under any other const. amendment) 3. The FEDERAL gov't MAY SUE the STATE GOV'T 4. Bankruptcy Proceedings |
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ARE SUITS AGAINST STATE OFFICERS ALLOWED? WHEN ARE THEY NOT ALLOWED?
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YES - MAY BE SUED FOR:
1. INJUNCTIVE RELIEF 2. MONEY DAMAGES TO BE PAID OUT OF THEIR OWN POCKETS MAY NOT BE SUED WHERE: 1. IT IS THE STATE TREASURY THAT WILL BE PAYING RETROACTIVE DAMAGES. |
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WHAT IS THE DOCTRINE OF ABSTENTION?
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Fed courts will temporarily abstain from resolving a constitutional claim when the disposition rests on an UNSETTLED question of STATE LAW
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WHERE DOES CONGRESS' AUTHORITY STEM FROM?
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(1) EXPRESS OR IMPLIED CONSTITUTIONAL POWER (no police power)
(2) THE NECESSARY AND PROPER CLAUSE |
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THE NECESSARY AND PROPER CLAUSE
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Cong has power to make all laws NEC & PROP (appropriate) for executing ANY power granted to ANY BRANCH of the federal gov't.
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THE TAXING AND SPENDING POWER
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Congress has the power to TAX so long as there is a REASONABLE RELATIONSHIP to revenue production or power to regulate such activity.
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SPENDING POWER
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Congress has power to spend to provide for the COMMON DEFENSE AND WELFARE (any public purpose)
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THE COMMERCE POWER - WHAT ARE THE TYPES OF COMMERCE POWER CONGRESS HAS?
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(1) Congress may regulate the CHANNELS of interstate commerce.
(2) Regulate the INSTRUMENTALITIES of interstate commerce and persons/things in interstate commerce (3) May regulate ECONOMIC ACTIVITIES that have a SUBSTANTIAL EFFECT on INTERSTATE COMMERCE - in the area of NON-ECONOMIC ACTIVITY no substantial effect can be based on cumulative impact |
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10th AMENDMENT - WHAT DOES IT DO?
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LIMITS congressional powers
All powers not granted to the US or prohibited to the states are reserved for the states or the people |
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CAN CONGRESS COMPEL STATE REGULATORY OR LEGISLATIVE ACTION?
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NO - HOWEVER
Congress can INDUCE state gov't by putting strings on grants, SO LONG AS conditions are EXPRESSLY STATED and RELATE TO PURPOSE OF GRANT AND Congress may prohibit HARMFUL COMMERCIAL ACTIVITY by state govt's |
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CONGRESSES POWER UNDER SEC. 5 OF THE 14TH AMENDMENT
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Congress may NOT create new rights or expand scope of rights.
May only act to PREVENT OR REMEDY violations recognized by the courts and suc hlaws must be "proportionate' and "congruen" to remedying const. violations. |
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IS THERE A LIMIT ON CONGRESS' ABILITY TO DELEGATE LEGISLATIVE POWER?
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NO - NO LIMIT - BUT REMEMBER - MUST ALWAYS BE BICAMERALISM AND PRESENTMENT.
- so LEGISLATIVE VETOES or LINE ITEM VETOES are UNCONSTITUTIONAL |
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CAN CONGRESS DELEGATE EXECUTIVE POWER TO ITSELF?
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NO
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TREATIES - DEFINED
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Treaties are agreements b/t the US and a foreign country that are NEGOTIATED BY THE PREZ and effective when RATIFIED BY THE SENATE
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TREATIES - RULES OF APPLICATION
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1. TREATIES PREVAIL OVER CONFLICTING STATE LAWS
2. IF TREATY V. FEDERAL STATUTE - LAST IN TIME PREVAILS 3. IF TREATY V. US CONST. - TREATY IS INVALID |
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EXECUTIVE AGREEMENTS - DEFINITION
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Agreement between US and a foreign country that is effective when SIGNED BY PREZ - no senate approval needed.
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What purpose may executive agreements be used for?
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ANY PURPOSE
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EXECUTIVE AGREEMENTS - RULES OF APPLICATION
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EA v. State Law - EA WINS
EA v. Fed Law/Const - EA LOSES |
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PREZ'S POWERS AS COMMANDER IN CHIEF
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President has BROAD powers as COMMANDER IN CHIEF to use AMERICAN TROOPS IN FOREIGN COUNTRIES
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APPOINTMENT POWER - PRESIDENT'S POWERS
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President appoints:
1. AMBASSADORS 2. FEDERAL JUDGES 3. OFFICERS of the US W/ ADVICE & CONSENT OF SENATE |
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APPOINTMENT POWER - CONGRESSIONAL POWERS
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Congress may ONLY appoint INFERIOR OFFICERS - those who are below the officers appointed by the Prez
Congress MAY NOT give itself or its officers the appointment power. |
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REMOVAL OF APPOINTEES
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PRESIDENT:
Can remove any executive officer W/out any interference by congress - although congress may provide statutory limitations on the removal of executive appointees |
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CONGRESS - LIMITING REMOVAL
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Congress MAY limit removal of an officer WHERE INDEPENDENCE FROM PREZ IS DESIRABLE - BUT
Congress CANNOT PROHIBIT REMOVAL - just limit it where good cause |
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IMPEACHMENT
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(1) MAJORITY vote in the house, to bring charges, and
(2) TRIAL by the Senate and a 2/3rd VOTE to convict & remove |
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PRESIDENTIAL IMMUNITY
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President has ABSOLUTE IMMUNITY from CIVIL SUITS FOR MONEY DAMAGES from any actions taken WHILE IN OFFICE. However -
Prez is NOT IMMUNE from actions occurring prior to taking office - like fingerbanging paula jones. |
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EXECUTIVE PRIVILEGE
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PREZ has privilege to keep papers and conversations privileged (secret) BUT this can be waived for other important gov't interests (ie, CRIMINAL proceedings)
GREAT DEFERENCE given to NAT'L SEC DOCS |
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EXECUTIVE PARDONS
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FOR FEDERAL CRIMINAL CONVICTIONS ONLY
NO PARDONS WHERE THERE HAS BEEN AN IMPEACHMENT |
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WHAT IS EXPRESS PREEMPTION?
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If FED LAW EXPLICITLY STATES THAT IT IS EXCLUSIVE - it PREEMPTS conflicting STATE LAWS
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WHAT ARE THE THREE SITUATIONS IN WHICH IMPLIED PREEMPTION WILL BE FOUND?
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Fed-Law Preempts State Law WHERE:
1. Fed Law and State Law are MUTUALLY EXCLUSIVE 2. State law IMPEDES THE ACHIEVEMENT of a fed. law objective 3. Congress evidences a CLEAR INTENT to PREEMPT state law |
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CAN STATES TAX OR REGULATE THE FEDERAL GOV'T?
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NO
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WHAT ARE THE FACTORS USED IN DETERMINING WHETHER IMPLIED PREEMPTION EXISTS?
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1. COMPREHENSIVENESS of the federal scheme, and
2. CREATION OF AN AGENCY to administer the law. |
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THE FULL FAITH AND CREDIT CLAUSE - WHAT DOES IT MEAN?
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If a judgment is entitled to full faith and credit it must be RECOGNIZED IN SISTER STATES
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FULL FAITH AND CREDIT CLAUSE - WHEN DOES IT APPLY?
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(1) Court rendering judgment had JURISDICTION over parties & subject matter
(2) Judgment was ON THE MERITS, and (3) Judgment is FINAL |
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WHEN CAN A STATE TAX THE FEDERAL GOV'T?
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NO DIRECT TAX, but allowed if:
1) Nondiscriminatory 2) indirect taxes 3) doesn't unreasonably burden the fedgov (e.g., state income tax on federal employees) |
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PRIVILEGES AND IMMUNITIES CLAUSE OF 4TH AMENDMENT - WHAT DOES IT DO?
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STATES cannot discriminate between their citizens and OUT OF STATE CITIZENS w/ regard to basic civil liberties
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WHO IS NOT PROTECTED BY THE PRIVILEGES AND IMMUNITIES CLAUSE?
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ALIENS & CORPORATIONS
(note - however - that they are protected by the equal protection clause, due process clause of the 14th, and dormant commerce clause) |
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WHAT DOES THE DORMANT COMMERCE CLAUSE DO?
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Prevents the states from REGULATING INTERSTATE COMMERCE. - cannot improperly burden interstate commerce or discriminate against interstate commerce.
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WHAT RIGHTS DOES THE PRIVILEGES AND IMMUNITIES CLAUSE PROTECT?
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Fundamental rights - those invovling important commercial activities (ie RIGHT TO MAKE A LIVING) and CIVIL LIBERTIES
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WHEN DOES THE PRIVILEGES AND IMMUNITIES CLAUSE APPLY?
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There must be DISCRIMINATION BY THE STATE'S REGULATION in re state citizens v. non-residents, and DISCRIMINATORY TREATMENT
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CAN THE STATES REGULATION BE VALID EVEN IF IT VIOLATES THE PRIVILEGES AND IMMUNITIES CLAUSE ON ITS FACE?
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YES - THE TEST IS:
1 - SUBSTANTIAL JUSTIFICATION FOR DIFFERENT TREATMENT 2 - Where it is NECESSARY TO achieve IMPORTANT GOVERNMENTAL PURPOSE - and there is NO LESS RESTRICTIVE ALTERNATIVE available to achieve its objective. (note - where int. commerce is invovled - use BOTH dormant commerce clause Privileges and Immunities Clause. |
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METHOD OF ANALYSIS IF THE STATE LAW DOES DISCRIMINATE AGAINST OUT OF STATERS
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(1) If the law burdens burdens INTERSTATE COMMERCE is violates the DORMANT COMMERCE CLAUSE unless NECESSARY TO ACHIEVE AN IMPORTANT GOVT PURPOSE.
Except: (i) congressional approval or (ii) market participant exception - state gov't may prefer its own citizens in recieving state benifits, etc. (2) If it discriminates against out of staters and their ability to earn a livelihood - it violates the PRIVILIGES AND IMMUNITIES CLAUSE of Art. IV, Unless necessary to achieve an important gov't purpose. THUS ALWAYS ANALYZE UNDER BOTH IF THERE IS DISCRIMINATION |
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METHOD OF ANALYSIS IF LAW DOES NOT DISCRIMINATE AGAINST OUT-OF-STATERS
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1. The P&I clause of Art. IV does NOT APPLY
2. If the law BURDENS Interstate commerce it VIOLATES THE dormant commerce clause IF THE BURDENS EXCEED THE BENEFITS |
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Dormant Clause Analysis - Discrimination exists
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Discrimination - against interstate commerce, regulation is INVALID, UNLESS:
a.) if furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives ; b) the state is a Market Participant c) It involves government action regarding the performance of a traditional government function d) Necessary to achieve an important government purpose *burden exceeds its benefits - violates the dormant commerce clause |
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IS FEDERAL GOV'T REGULATION OF STATE TAXES ALLOWED?
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yes - congress has complete power to forbid state taxation that affects interstate commerce
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DISCRIMINATORY TAXES BY STATES
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INVALID UNLESS AUTHORIZED BY CONGRESS - VIOLATION OF HTE COMMERCE CLAUSE
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WHEN ARE NON-DISCRIMINATORY STATE TAXES VALID?
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VALID IF:
1. Substantial nexus b/t the tax and the state activity (significant and substantial activity w/in the taxing state) 2. Fair apportionment - tax must be fairly apportioned using a rational formula 3. Fair relationship between tax and the services/benefits provided by state. IF THESE AREN'T MET - tax is considered UNDULY BURDENING of INTERSTATE COMMERCE |
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WHEN DOES THE CONSTITUTION APPLY?
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When there is GOVERNMENT/STATE ACTION.
Private conduct need not comply w/ constitution - unless exception applies |
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CAN CONGRESS APPLY CONSTITUTIONAL NORMS TO PRIVATE CONDUCT?
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YES -
1. 13th Amendment can be used to prohibit private race discrimination 2. Commerce power can be used - ie, hotel case - civil rights 3. Congress CANNOT use Sec. 5 of the 14th Amendment to regulate private behavior |
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EXCEPTIONS: SITUATIONS WHERE PRIVATE CONDUCT MUST COMPLY W/ CONSTITUTION
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1. Public Function Exception - Private entity is performing a task traditionally exclusively done by gov't
2. Entanglement Exception - Constitution Applies of the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity: examples: racially rest. covenants, gov't lease premises, books to private schools that racially discriminate, private entity regulates interscholastic sports w/in state. But NO STATE ACTION under entanglement exception where: 99% funded by gov, NCAA suspension of basketball couch, private club w/ liquor license from state racially discriminates |
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WHICH BILL OF RIGHTS AMENDMENTS ARE NOT APPLICABLE TO THE STATES?
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1. 2ND AMEND RIGHT TO BEAR ARMS
2. 3RD AMEND. RIGHT AGAINST QUARTERING OF SOLDIERS 3. 5TH - RIGHT TO GRAND JURY INDICTMENT IN CRIMINAL CASES 4. 7TH - RIGHT TO A JURY TRIAL IN CIVIL CASES 5. 8TH - RIGHT AGAINST EXCESSIVE FINES. |
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RATIONAL BASIS REVIEW - WHAT IS THE TEST? BURDEN?
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Law upheld if it is RATIONALLY RELATED TO A LEGITIMATE GOV'T PURPOSE
BURDEN is on CHALLENGER law is almost always valid here unless arbitrary and capricious |
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INTERMEDIATE SCRUTINY - WHAT IS THE TEST? BURDEN? OTHER CHARACTERISTICS?
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Law is upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT gov't purpose.
BURDEN is on GOV'T Must be NARROWLY TAILORED - good way but not necessarily best way of achieving purpose. There must be an ACTUAL purpose Applies to quasi-suspect classifications - gender, legitimacy, undocumented alien children |
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STRICT SCRUTINY - TEST, BURDEN, OTHER CHARACTERISTICS?
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Law is upheld only if it is NECESSARY to achieve a COMPELLING gov't purpose.
BURDEN - on gov't (gov't usually loses) NECESSARY = least restrictive means only (ie, no less restrictive means available) OBJECTIVE is CRUCIAL here - actual objective only Applies to regulations affecting FUNDAMENTAL RIGHTS - (interstate travel, privacy, voting, 1st amend, OR SUSPECT CLASSIFICATION - (race, nat'l origin, alienage) |
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CONTRACT CLAUSE - WHAT DOES IT DO? WHAT SPECIAL LEVEL OF SCRUTINY APPLIES
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Prohibits STATES & LOCAL GOV from acting to SUBSTANTIALLY IMPAIR *EXISTING* CONTRACT RIGHTS.
HYBRID RAT'L BASIS/INT. SCRUTINY APPLIES --> MUST: 1. Serve an IMPORTANT & legit public interest, and 2. REASONABLE & NARROWLY TAILORED |
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ESTABLISHMENT CLAUSE and level of scrutiny
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Generally must be NARROWLY TAILORED to a compelling state interest where there is discrimination among religious groups.
TEST: 1. Must be a SECULAR PURPOSE for the law 2. Effect must be NEITHER TO ADVANCE OR INHIBIT religion 3. Must not be EXCESSIVE ENTANGLEMENT w/ religion |
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CAN STATES REGULATE LOCAL ASPECTS OF INTERSTATE COMMERCE, WHERE THERE IS ALREADY A FED REG IN PLACE?
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YES - so long as the reg does not CONFLICT w/ fedreg and is NOT PREEMPTED by fed reg, AND:
(1) Does not discriminate against out of state competition in order to benefit local interests, and (2) incidental burden on interstate commerce does not outweigh the local benefits. |
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PROPERTY CLAUSE
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Congress has power to "make all needful rules and regulations repsecting the territory or other property belonging to the US" - allows cong to acquire and dispose of all kinds of property and to protect its property
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EX-POST FACTO CLAUSE
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Gov't cannot pass ex post facto law - RETROACTIVE application of a CRIMINAL offense
NOTE - DOES NOT APPLY TO CIVIL CASES Ex Post Facto Laws include those that: 1. Make criminal an act that was innocent when done. 2. Prescribe GREATER PUNISHMENT for an act than was prescribed when it was done, and 3. Reduces evidence req'd to convict person of a crime. |
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PROCEDURAL DUE PROCESS - WHERE APPLICABLE
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Right to PDP applies where gov't takes persons LIFE, LIBERTY, or PROPERTY - INTENTIONALLY
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LIBERTY DEPRIVED WHERE
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There is a loss of a SIGNIFICANT FREEDOM provided by the const. OR a statute
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PROPERTY - DEPRIVED WHERE..
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Person has a LEGITIMATE CLAIM OR ENTITLEMENT (a PROPERTY INTEREST).
This is not fulfilled when discussing RIGHTS or PRIVILEGES |
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IS GOVT'S NEGLIGENCE SUFFICIENT FOR A PDP VIOLATION?
WHAT IS THE SPECIAL RULE FOR EMERGENCY SITUATIONS? |
NO - There must be INTENTIONAL gov't action or at least a RECKLESS ACTION for liability to exist
In an emergency situation - gov't is liable under PDP only if it SHOCKS THE CONSCIENCE |
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DOES GOVT'S FAILURE TO PROTECT PEOPLE FROM PRIVATELY INFLICTED HARMS VIOLATE THE DENY PDP? Genera rule and 2 exceptions
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NO - GOV'T HAS NO DUTY HERE, unless;
1. Gov't CREATES THE DANGER, OR 2. Person is in GOVT CUSTODY |
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WHAT IS THE BALANCING TEST TO DETERMINE WHAT TYPE OF PROCESS IS REQUIRED?
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BALANCE:
1. Importance of the interest to the individual, and 2. the value of the specific procedural safeguards to that interest (ie, the ability of additional procedures to increase accuracy of fact finding) AGAINST 3. GOVT'S interests in FISCAL and ADMINISTRATIVE efficiency. |
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EXAMPLES OF WHEN DP IS NEED (NOTICE & HEARING)
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1 - Welfare benefits - need N&H
2. Disability/soc.sec. - need POST N&H 3. Student Discipline - only need notice of charges an opportunity to explain. 4. Custody Term - N&H 5. Punitive damages - Jury Instructions & judicial review 6. American citizen detained as enemy combatant - N&H 7. Except in exigent circs, prejudgment attachment or gov't seizures - N&H |
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WHEN ARE PUNITIVE DAMAGES VIOLATIVE OF DP?
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When they are GROSSLY EXCESSIVE
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Explain "exigent circumstances"
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If a person would vacate or run away w/ the property - no N&H and No violation of DP
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Civil Forfeitures - What type of DP necessary? What is the difference here between real & personal property
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REAL PROPERTY - Prior notice and hearing
PERSONAL PROPERTY: Subsequent notice and hearing |
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WHAT IS THE TEST FOR DEPRIVING ECONOMIC LIBERTIES
(note - this is SUBSTANTIVE D/P) |
RATIONAL BASIS TEST - The constitution provides only minimal protection for economic liberties (ie, employment/labor, K, trade practice, consumer protection law)
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TAKINGS CLAUSE - DEFINED
(SDP) |
Gov't may take private property for public use if it provides just compensation
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LIST AND EXPLAIN THE TWO TYPES OF TAKINGS:
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1. Possessory Taking - Gov't confiscation or physical occupation of a property is ALWAYS a taking.
2. Regulatory Taking - Gov't regulation is a taking if it leaves NO REASONABLE ECONOMICALLY VIABLE USE OF THE PROPERTY |
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CONSIDERATIONS ON DETERMINING WHETHER THERE IS A TAKING.
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1. Gov't conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed.
2. Regulations that existed at time of property acquisition - can still brign suit. 3. Temporarily denying an owner the use of property is not a taking so long as the govt's action is reasonable. |
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RIGHT TO PRIVACY - WHAT PROTECTS IT AND LIST ITS MANY VARIATIONS
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Privacy is a FUNDAMENTAL RIGHT protected under SDP.
1. right to MARRY 2. Right to PROCREATE 3. Right to CUSTODY of ones children 4. Right to keep the FAMILY together 5. Right to control the UPBRINGING of your kids 6. Right to purchase and use CONTRACEPTIVES 7. Right to ABORTION (but see below) 8. Right to REFUSE medical treatment 9. Right to engage in private consensual homosexual activity. |
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RIGHT TO ABORTION - EXPLAIN
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NO LONGER STRICT SCRUTINY
PRIOR TO VIABILITY - states may NOT prohibit abortions, but MAY REGULATE abortions so long as they do not create an UNDUE BURDEN on the ability to obtain one. |
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What is viability for the purposes of abortion?
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WHERE CHILD COULD SURVIVE OUTSIDE THE WOMB
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WHAT IS NOT CONSIDERED AN UNDUE BURDEN FOR PURPOSES OF INVALIDATING ABORTION REGS?
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1. 24 hour waiting period
2. Requiring licenses physicians to perform abortions 3. Prohibition of "partial birth abortions" |
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REGULATION OF ABORTION AFTER VIABILITY
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States may prohibit unless necessary to protect the woman's life/health.
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RULE ON GOVT SUBSIDIES FOR ABORTIONS
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NO SUBSIDIES AND NO ABORTIONS IN PUBLIC HOSPITALS
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WHAT IS THE RULE ON SPOUSAL CONSENT REQUIREMENT FOR ABORTIONS?
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UNCONSTITUTIONAL
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WHAT IS THE RULE ON STATES REQUIRING PARENTAL CONSENT/NOTICE FOR MINORS TO GET AN ABORTION
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This is OK IF - minor is unmarried AND
State provides an ALTERNATE PROCEDURE by which the girl can go before a judge who can approve the abortion by finding that it is in her best interests or that she is mature enough to decide for herself. |
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RIGHT TO REFUSE MEDICAL TREATMENT - WHAT ARE THE GENERAL RULES
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1. Competent adults have right to refuse med treatment, even life-saving treatment
2. A state may require clear and convincing evidence that a person wanted treatment terminated before it ended. 3. A state may prevent family members from terminating treatment for another. |
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RIGHT TO TRAVEL: WHAT LEVEL OF SCRUTINY APPLIES, WHAT IS THE EXCEPTION
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RIGHT TO TRAVEL IS A FUNDAMENTAL RIGHT
STRICT SCRUTINY APPLIES TO: 1. Laws that prevent people from moving into a state 2. Durational residency requirements. HOWEVER, Restrictions on FOREIGN travel need only meet RATIONAL BASIS test. |
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RIGHT TO VOTE: difference between laws denying and laws to prevent fraud, level of scrutiny for both
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FUNDAMENTAL RIGHT
STRICT SCRUTINY: Applies to laws that deny some citizens the right to vote. BUT- laws that REGULATE elections to prevent fraud only need to be desirable on balance. |
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RIGHT TO VOTE - WHEN ARE ELECTIONS UNCONSTITUTIONAL
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Elections are considered constitutional unless there is proof of a DISCRIMINATORY PURPOSE
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RIGHT TO VOTE - USE OF RACE IN DRAWING ELECTION DISTRICT LINES - WHAT SCRUTINY
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MUST MEET STRICT SCRUTINY
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RIGHT TO VOTE - COUNTING UNCOUNTED VOTES W/OUT STANDARDS IN A PRESIDENTIAL ELECTION
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VIOLATES EQUAL PROTECTION
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IS THERE A FUNDAMENTAL RIGHT TO EDUCATION?
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NO
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review: USE OF STRICT SCRUTINY STANDARD FOR:
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PRIVACY RIGHTS
RIGHT TO TRAVEL RIGHT TO VOTE FREE SPEECH FREEDOM OF ASSOCIATION FREE EXERCISE OF RELIGION |
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USE OF UNDUE BURDEN TEST APPLIES TO
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ABORTION RIGHTS
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RATIONAL BASIS REVIEW (NOT FUNDAMENTAL RIGHTS) APPLIES TO:
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RIGHT TO PRACTICE A TRADE/PROFESSION
RIGHT TO PHYSICIAN ASSISTED SUICIDE RIGHT TO EDUCAITON |
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LEVEL OF SCRUTINY UNKNOWN
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RIGHT TO ENGAGE IN PRIVATE GAY BEHAVIOR
RIGHT TO REFUSE MED TREATMENT RIGHT TO POSSESS FIREARMS |
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EQUAL PROTECTION - GENERAL APPROACH
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1. WHAT IS THE CLASSIFICATION?
2. WHAT LEVEL OF SCRUTINY SHOULD BE APPLIED 3. DOES THE LAW MEET THAT LEVEL OF SCRUTINY |
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WHERE DOES THE RIGHT TO EQUAL PROTECTION ARISE FOR THE FED GOV? FOR THE STATES?
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Fed Gov - 5th Amendment
States - 14th Amendment |
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WHAT IS THE LEVEL OF SCRUTINY FOR CLASSIFICATION BASED ON RACE OR NATIONAL ORIGIN?
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STRICT SCRUTINY
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HOW IS THE EXISTENCE OF A RACIAL CLASSIFICATION PROVEN?
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1 - It exists on the face of the law, OR
2- If the law is facially neutral, must prove BOTH discriminatory IMPACT AND discriminatory INTENT |
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WHAT IS THE STANDARD IF THE RACIAL CLASSIFICATION BENEFITS MINORITIES?
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Still strict scrutiny
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CAN STATISTICS BE CONSIDERED IN DETERMINING DISCRIMINATION
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Generally NO UNLESS -
there is CLEAR PROOF of PAST discrimination and the reg's purpose is to REMEDY the past discrimination |
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CAN RACE BE CONSIDERED FOR ADMISSIONS INTO EDUCATIONAL INSTITUTIONS?
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YES - BUT ONLY AS ONE OF MANY FACTORS
You CANNOT set aside slots for certain races. |
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CAN PUBLIC SCHOOLS CONSIDER RACE IN ADMISSIONS
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MUST MEET STRICT SCRUTINY - SO PROBABLY NOT
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EQUAL PROTECTION - WHAT IS THE STANDARD USED FOR GENDER CLASSIFICATIONS?
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INTERMEDIATE SCRUTINY
Gov't must prove there is an EXCEEDINGLY PERSUASIVE JUSTIFICATION for the discrimination that is substantially related to a gov't purpose. |
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HOW IS THE EXISTENCE OF A GENDER CLASSIFICATION PROVEN?
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1. classification exists on the face of the law, or
2. if law is facially neutral, must prove both disc. IMPACT & INTENT. |
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WHAT IS NEEDED FOR STRICT/INT. SCRUTINY TO APPLY WHEN PROVING DISC. CLASSIFICATION?
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There must be INTENT on the part of the govt to discriminate - proven by showing:
1 - discriminatory on its face 2 - Discriminatory application of a facially neutral law 3 - discriminatory MOTIVE behind the law - need evidence of a HISTORY of discrimination here, effect alone is not enough. |
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WHAT ARE THE VARIOUS LEVELS OF SCRUTINY APPLIED TO ALIENAGE CLASSIFICATIONS
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Normally strict scrutiny - but major exceptions:
1. RATIONAL BASIS - alienage classifications that concern self-gov't and the democratic process (some privileges reserved to citizens) 2. RATIONAL BASIS - for Congressional discrimination against aliens (immigration) 3. INT. SCRUTINY if discrimination is against UNDOCUMENTED alien children, who are denied free public education |
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WHEN CAN GOV'T DISCRIMINATE AGAINST ALIENS?
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In preventing them from participating in government functions that are wholly part of the democratic process - e.g., voting, jury service, elective office, probation officers, cops, teachers
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WHAT IS THE STANDARD FOR LEGITIMACY (parental rights) DISCRIMINATION?
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INTERMEDIATE SCRUTINY
Law is allowed to require proof of paternity to right to a decedent's estate. |
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WHAT ARE THE TYPES OF DISCRIMINATION UNDER THE CONSTITUTION THAT ONLY NEED TO MEET RATIONAL BASIS REVIEW?
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Generally all others
1 - Age 2 - Disability 3 - Wealth 4 - Economic Regulations 5 - Sexual Orientation |
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WHAT DISTINCTION SHOULD BE MADE WHERE RESTRICTION ON FREE SPEECH IS BEING CHALLENGED?
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Whether restriction is CONTENT BASED V. CONTENT NEUTRAL
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WHAT IS THE LEVEL OF SCRUTINY FOR CONTENT BASED RESTRICTIONS ON FREE SPEECH?
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STRICT SCRUTINY
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WHAT ARE THE TWO TYPES OF CONTENT BASED RESTRICTIONS?
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1 - SUBJECT matter restriction - application of the law depends on the topic of the message.
2 - VIEWPOINT restrictions application of the law depends on the IDEOLOGY of the message. |
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WHAT IS A PRIOR RESTRAINT ON FREE SPEECH?
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Judicial orders or regulations that prevent speech before it occurs
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WHAT IS THE LEVEL OF SCRUTINY APPLIED TO JUDICIAL ORDERS SUPPRESSING SPEECH?
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STRICT SCRUTINY - but procedurally proper court orders must be complied with until vacated or overturned. Person who violates court order is barred from later challenging it.
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ARE GAG ORDERS ON THE PRESS TO PREVENT PREJUDICIAL PRE-TRIAL PUBLICITY ALLOWED?
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NO - NEVER
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WHEN CAN THE GOVERNMENT REQUIRE A LICENSE FOR SPEECH?
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ONLY if there is an IMPORTANT REASON for licensing; CLEAR CRITERIA leaving almost NO DISCRETION, an prompt determination of a request for a license as well as judicial review
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VAGUENESS - WHEN UNCONSTITUTIONAL
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A law is unconstitutionally vague if a REASONABLE PERSON cannot tell what speech is prohibited and what speech is allowed.
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OVERBREADTH - WHEN UNCONSTITUTIONAL
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Law is unconstitutionally overbroad when it regulates substantially more speech than the constitution allows
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FIGHTING WORDS STATUTES
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ALWAYS UNCONSTITUTIONAL - FOR VAGUENESS AND OVERBREADTH.
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SYMBOLIC SPEECH - WHEN CAN GOVT REGULATE IT
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Gov can regulate CONDUCT that communicates if it has an important interest UNRELATED TO THE SUPPRESSION OF THE MESSAGE and if the impact on the communication is no greater than necessary to achieve the govt's purpose.
ex. Flag burning is constitutionally protected symbolic speech BUT DRAFT CARD BURNING IS NOT CONST. PROT. SYMBOLIC SPEECH b/c govt has interest in orderly conduct of draft system. |
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SYMBOLIC SPEECH EXAMPLES
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Flag burning - protected speech
Draft Card burning - not protected speech Nude dancing - not protected speech Burning Cross - protected unless done to intimidate and threaten Contribution limits - not protected speech. |
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WHAT TYPES OF SPEECH ARE UNPROTECTED OR LESS PROTECTED BY THE 1ST AMEND?
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1. Incitement of illegal activity
2. Obscenity and sexually-oriented speech 3. Commercial speech 4. Defamation 5. Privacy |
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INCITEMENT OF ILLEGAL ACTIVITY - WHAT IS THE TEST FOR WHETHER GOVT CAN PUNISH THIS TYPE OF SPEECH?
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Gov't may punish this type of speech if there is:
1. A SUBSTANTIAL LIKELIHOOD of imminent illegal activity AND 2. Speech is DIRECTED AT CAUSING IMMINENT ILLEGALITY |
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WHAT IS THE TEST TO DETERMINE WHETHER SPEECH IS OBSCENE AND SEXUALLY OREINTED?
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1. Material must appeal to the PURIENT interest (shameful or morbid interest in sex) - local community standard
2. Material must be PATENTLY OFFENSIVE under the law prohibiting obscenity 3. Taken as a whole, material must LACK SERIOUS REDEEMING artistic, literary, political or scientific value (national standard) |
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CAN THE GOVT USE ZONING ORDINANCES TO REGULATION TEH LOCATION OF ADULT BOOKSTORES AND MOVIE THEATERS?
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YES
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WHAT IS THE RULE REGARDING BANS ON CHILD PORNOGRAPHY
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VALID - however - children must ACTUALLY BE USED in production, computer generations or child-like appearance is not enough.
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IS PROFANE AND INDECENT SPEECH PROTECTED
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YES - GENERALLY - BUT
NOT OVER BROADCAST MEDIA OR IN SCHOOLS |
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REGULATION OF COMMERCIAL SPEECH - WHAT IS THE GENERAL RULE/STANDARD? EXCEPTIONS?
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Generally must meet INTERMEDIATE scrutiny - must be narrowly tailored but no requirement for least restrictive alternative
Exception - Advertising for ILLEGAL ACTIVITY and FALSE & DECEPTIVE ADS are NOT protected forms of speech |
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IS DEFAMATION A FORM OF PROTECTED SPEECH?
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NO
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DEFAMATION - PRIMA FACIE CASE WHERE P IS A PUBLIC OFFICIAL OR RUNNING FOR PUBLIC OFFICE
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P can recover by proving FALSITY and ACTUAL MALICE
Malice = reckless disregard for the truth |
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DEFAMATION - PRIMA FACIE CASE WHERE P IS A "PUBLIC FIGURE"
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FALSITY AND ACTUAL MALICE
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DEFAMATION - P IS A PRIVATE FIGURE, MATTER IS OF PUBLIC CONCERN
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FALSITY AND NEGLIGENCE - BUT PUNITIVE DAMAGES ONLY BY SHOWING ACTUAL MALICE
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DEFAMATION - PRIVATE FIGURE NOT A MATTER OF PUBLIC CONCERN
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FALSITY AND NEGLIGENCE - PUNIES REGARDLESS OF MALICE
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PUBLIC FORUMS - WHEN CAN GOV'T REGULATE THEM?
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Regs must be subject matter and viewpoint neutral - if not STRICT SCRUTINY applied
Regs must only concern TIME, PLACE, or MANNER AND serve an IMPORTANT GOV'T PURPOSE while leaving open adequate alternative places for ocmms. need not use least rest. alt. city officials may not set permit fees for public demonstrations |
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LIMITED PUBLIC FORUMS
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Govt properties that the gov COULD close to speech, but chooses to open instead - SAME RULES APPLY AS IN PUBLIC FORUMS
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NON-PUBLIC FORUMS - WHEN CAN GOVT REGULATE?
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As long as the reg is REASONABLE and VIEWPOINT NEUTRAL its ok
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FREEDOM OF ASSOCIATION - WHAT TYPE OF SCRUTINY APPLIES
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GENERALLY STRICT SCRUTINY UNLESS IT IS A LAW THAT PROHIBITS DISCRIMINATION BY THE GROUP
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WHAT STEPS MUST BE TAKEN TO PUNISH MEMBERSHIP IN A GROUP?
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PERSON MUST BE:
1. Actively affiliated w/ the group 2. Knowing of its ILLEGAL ACTIVITIES, and 3. w/ SPECIFIC INTENT of furthering those illegal activities. |
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WHEN CAN LAWS REQUIRE DISCLOSURE OF MEMBERS IN AN ASSOCIATION
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MUST MEET STRICT SCRUTINY - prevents chilling effect on association
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CAN LAWS PROHIBIT A GROUP FROM DISCRIMINATING? WHAT IS THE EXCEPTION?
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YES.
EXCEPTION - interfere w/ INTIMATE ASSOCIATION or EXPRESSIVE ACTIVITY intimate association = small dinner party expressive activity = KKK |
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FREEDOM OF RELIGION - WHAT TWO PROVISIONS IN 1ST AMENDMENT?
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1 - FREE EXERCISE CLAUSE
2 - ESTABLISHMENT CLAUSE |
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CAN FREE EXERCISE CLAUSE BE USED TO CHALLENGE A NEUTRAL LAW OF GENERAL APPLICABILITY?
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NO!
Ex. OR law prohibited consumption of payote - indians sued under FEC - LAW UPHELD AS NEUTRAL LAW OF GENERAL APPLICABILITY |
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MAY THE GOV'T DENY BENEFITS TO SOMEONE WHO QUITS THEIR JOB FOR RELIGIOUS REASONS?
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NO
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ESTABLISHMENT CLAUSE - WHAT IS THE TEST
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(law is unconst. if it violates any element)
1 - must be a SECULAR PURPOSE 2 - effect must be neither to ADVANCE NOR INHIBIT religion 3 - must not be EXCESSIVE ENTANGLEMENT w/ religion |
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WHAT TEST APPLIES TO GOVT DISCRIMINATION AGAINST RELIGIOUS SPEECH OR AMONG RELIGIONS?
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STRICT SCRUTINY
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RULE ON GOVT SPONSORED REL. ACTIVITIES IN PUBLIC SCHOOLS? RULE ABOUT ACCESS FOR RELIGIOUS STUDENT/COMMUNITY GROUPS?
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NO GOVT SPONSORSHIP - BUT REL. STUDENT GROUPS/COMMUNITY GROUPS MUST GET SAME ACCESS AS EVERYONE ELSE.
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WHAT IS THE RULE ON FED ASSISTANCE TO PAROCHIAL SCHOOLS
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FINE (INCLUDING VOUCHERS) AS LONG AS IT IS NOT **ACTUALLY** USED FOR RELIGIOUS INSTRUCTION.
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