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63 Cards in this Set
- Front
- Back
What's the good analogy to remember for cases and controversy?
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Boxing match: every case needs adversary parties and a fight in progress
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Law bans one cookbook a month. Can cookbook author bring suit?
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No. Not yet ripe, unless he's informed it's his.
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How do you tell if a case is moot?
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If a jduge can't change the position of the parties.
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What keeps cases from becoming moot?
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Money damages.
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What is the exception to mootness?
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Capable of repetition yet evading review.
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How do you tell if it meets this standard?
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1. Limited time duration and
2. could happen again to the individual in the lawsuit. |
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When is there federal taxpayer standing?
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Establishment Clause to aid religion.
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What is the exception to this rule?
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Can't challenge federal government transfer of property.
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Can taxpayers challenge state/local establishment of religion?
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Yes. Even if it involves giving away of property.
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Can a taxpayer challenge tax exempt status?
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Yes.
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Who is protected by the 11th Amendment?
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STATES -- not cities or local governments.
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What does the 11th Amendment prevent?
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Suits against states by someone other than federal government or another court IN FEDERAL COURT unless 1. the state expressly consents or 2. Congress has clearly created a federal cause of action against state governments through the power granted to Congress by section 5 of the 14th Amendment.
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What do principles of federalism have to do with all this?
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Principles of federalism prohibit Congress from creating a cause of action against states in STATE COURT for the same as above.
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Does 11th Amendment prevent cases against state officials for money damages?
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No, but money has to come from their pocket.
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Does 11th Amendment or federalism principles prohibit suits against state officials for prospective relief?
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No, even though the state is the real party in interest.
Can get an order going forward, but can't get back pay. |
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What are the only ways that Art. IV Privileges and Immunities allows states to discriminate against non-citizens?
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Voting; direct market participant.
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What are the Commerce Clause restrictions on state/local regulation of commerce?
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1. Discrimination against out of state interests.
2. Excessively burdensome on interstate commerce. |
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How do you know if a state/local law improperly discriminates against out of state interests?
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If it is not TRULY NECESSARY for an IMPORTANT OR SIGNIFICANT INTEREST (such as animals, people or environment)
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How do you know if a law is excessively burdensome on interstate commerce?
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The person attacking the law must show that the burden is clearly excessive when compared to legitimate local benefits.
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What if the exam quetsion tells you that the state could EQUALLY achieve its legitimate goal with two different options?
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Then make the state use the least burdensome. But if there is ANY difference, the State can choose.
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What are the strongest avenues of attack of state or local taxation of interstate commerce?
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1. Art. IV (if it's David Letterman)
2. Commerce Clause (if it discriminates against out of state interests) 3. Equal Protection (if Congress gave immunity from Commerce Clause) |
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When does a private person or entity have state action?
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1. When it takes on functions traditionally done by government exclusively (selecting jury; running a town).
2. NONNEUTRAL involvement between government and the complained of activity (government grant is not enough) |
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What is the Due Process Principle?
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A person should receive fair process if the government is about to deprive or has deprived a person of life, liberty or property.
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When has a person lost liberty?
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When they lose a constitutional right or significant freedom of action.
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When has a person lost property?
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When they have an entitlement (versus expectation) NOT RIGHT VERSUS PRIVILEGE.
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When is there a taking of property?
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1. If the Government physically appropriates property or changes the right to occupy the property. EXCEPT FOR a. emergencies or b. civil liberty/labor regulations.
2. Laws that permanently deprive owner of all economic value of real property. |
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What is the Rule of the Letter U?
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The property owner must carry the burden of proving that the law/regulation is so unfair and unjust that compensation should be required for the economic impact of the government regulation.
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It is never unjust/unfair to ban property uses that harm:
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animals, people or the environment.
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Where do we find the Due Process Clause?
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Federal government: 5th Amendment.
State and local: 14th Amendment. |
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Where do we find the Equal Protection Clause?
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State and local: 14th Amendment.
Federal government: implied in the 5th Amendment Due Process Clause. |
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How do you choose between substantive due process and equal protection?
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If it affects everyone equally, then choose substantive due process.
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Who has the burden of proof when the test is rational relationship to a legitimate interest?
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The plaintiff.
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What classification does racial discrimination receive, and what test is used?
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1. Race & National Origin: purposeful discrimination invalid unless gov't can prove it's necessary to promote a compelling interest. (aff. action must meet this test)
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What about alienage classification?
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1. Federal Government needs only rational relationship to legitimate interest to discriminate against non-U.S. citizens.
2. State and local entitles need necessary to promote a compelling interest. UNLESS it relates to Democratic Process. |
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What about illegal aliens?
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The only thing they get is that under Equal Protection their kids have a right to public school education.
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What level of scrutiny for legitimacy/illegitimacy classifications?
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Substantial relationship to an important state interest. Burden on state.
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What level of scrutiny for discrimination based on gender?
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Substantial relationship to an important interest.
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What are the fundamental rights?
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FATVP
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What level of scrutiny for violation of fundamental rights?
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Necessary to promote a compelling interest.
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What has the Court said about the right to die?
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We have an interest to refuse medical treatment, but family members do not have the right to deny treatment, and there is no right to assisted suicide.
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What is the standard for abortion pre-viability?
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Regulation is permissible if it does not impose an undue burden on the woman's freedom of choice.
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What is the standard for abortion post-viability?
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Government may ben or limit abortions unless there is a threat to the life or health of the woman.
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What is the rule for contraceptives?
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Can't ban their sale, even for unmarried persons (equal protection issue).
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What is the constitutional right for sexual activity?
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Only consenting adults in private have a constitutional right to sex.
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What is the Grandpa Rule?
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Cities can't limit dwellings to parents & children only.
But they CAN prevent unrelated persons from moving into a house! |
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What if a State counts only every third voter?
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Violates equal protection.
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Can states regulate political parties and candidates?
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Yes, but it must be narrowly tailored to promote a compelling interest. The interest is preserving a stable political system and protecting the integrity of the process.
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Does the one person-one vote principle apply to referenda?
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NO
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What is the right to travel all about?
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We can move state to state.
The new state can withhold benefits long enough to make sure you're really a citizen (there's a compelling interest in avoiding fraud), but once that is set the government has to treat you like a citizen. Usu. 6 month delays are okay. This is Privileges and Immunities Clause of FOURTEENTH AMENDMENT. |
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What is the standard for time, place, manner regulations on First Amendment?
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Time, place or manner regulations must be narrowly tailored to promote an important interest that is unrelated to the message being communicated.
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What three part test must time, place, manner regulations meet?
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1. Content neutral
2. Significant/important interest 3. Alternative channels of communications (narrow tailoring). |
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How may government allocate licenses for speech in truly public places?
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Must meet valid time, place or manner elements, and permit giver MUST HAVE NO DISCRETION.
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What is the standard for nonpublic fora?
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This is a place or channel of communication that the government own/controls and has not thrown open to general discourse.
The regulation has to be only reasonable and not viewpoint suppression. |
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What are the types of unprotected speech?
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DOVPAD.
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What are the two types of "clear and present danger" prohibitions?
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1. Advocacy of illegal action (incitement to imminent lawless action);
2. Threats |
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What is the usual problem with fighting words regulations?
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They are usually vague and overbroad.
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What must the government prove to make it illegal to ban a book?
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Sexy to Someone
Goes beyond Society's Standards (easy for government) No Serious value (judged by reasonable person, NOT community standard) |
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What types of commercial speech can be prohibited?
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False, deceptive or misleading commercial speech.
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What is the test for regulation of truthful speech about a lawful product?
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The regulation must be no more extensive than necessary to directly advance a substantial interest. (reasonable fit) Example: cigarette advertising.
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If Government wants to punish speech that is not unprotected, what does it need to show?
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Narrowly tailored to promote compelling interest.
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When can the Government punish a person because of his or her religious beliefs?
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Only if it is necessary to promote a compelling interest (Supreme Court can't even imagine a scenario!).
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When does Free Exercise Clause permit exemptions from general laws?
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1. Some limited exemptions from unemployment compensation requirements for persons who must quit a job or refuse work for religious reasons.
2. Amish do not have to send their kids to school after the 8th grade. |
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What is the standard for laws that provide aid to religion but which do not have a preference for particular sects?
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PEE
Secular Purpose Secular Effect No Excessive Entanglement |