Constitutional Law

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Present Recollection Recorded

Back 1

a record concerning a matter about which a W once had knowledge but now has insufficient recollection, shown to have been made or adopted by the W when the matter was fresh in memory
* may be read into evidence
* NY: may introduce it as an exhibit (show it to jury)

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Standing Reqs

Back 2

Injury
Causation
Redressability

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"Which P has the best standing?"

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choose P with personal injury;
if more than one, choose economic loss

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Generalized Grievances

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P may not sue as a citizen or taxpayer;
except taxpayers have standing to challenge govmt violations of the Establishment clause
BUT not to challenge grants of property to religious orgs

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Taxing and spending

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Congress may tax & spend for the "general welfare"
so "gen wel" is ONLY true for taxing/spending questions

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§ 5 power

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congress may only prevent or remedy violations of rights;
laws must be proportionate and congruent

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delegations of powers

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NO limits on Congress's ability to delegate
so wrong choice: "law is an excessive delegation"

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treaty conflicts

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if conflict with fed statute, last in time wins

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limits on removal (firing)

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congress may only limit removal where desirable to have independence from executive;
cannot prohibit removal, only limit to good cause

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state taxes on feds

Back 10

unconst to pay a state tax from the fed treasury
so state can't tax a fed store or pay property tax on a fed bldg

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P&I

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Art IV: anti-discrimination - state can't discrim against out of staters

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

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P or I

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14th A - protects from your own state - only "right to travel"

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

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No discrimination against out-of-state

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then maybe DCC; never P&I

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DCC exceptions

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congressional approval
market participants

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P&I violation

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discrim against out-of-staters with regard to their ability to earn livelihood, important economic activity, or civil liberties

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FF&C reqs

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jurisdx
on the merits
final

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13th A

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can be used to enact statutes prohibit private race discrim; the discrim violates the statute

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Exception to State Axn req for discrim

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public function exception;
entanglement exception - if the govmt affirmatively authorizes, encourages or facilitates unConst activity (leases premises to discriminatory restaurant; provides free books to private schools that discrim; but NO state axn when a private school, 99% funded by govmt, fired a teacher b/c of speech)

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rational basis test

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"upheld if rationally related to a legitimate govmt purpose"
BoP: Challenger

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intermediate scrutiny

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"if substantially related to an important govmt purpose"
must be narrowly tailored
BoP: Govmt

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strict scrutiny

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must be necessary to achieve a compelling govmt purpose
means must be necessary (least restrictive alternative)
BoP: Govmt

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Contract Clause

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applies only to existing Ks;
state or local interference must meet intermed scrut;
interference with its own Ks must meet strict scrut;

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ex post facto

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law that criminally punishes conduct that was lawful when done

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bill of attainder

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law that directs the punishment of specific persons

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abortion

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prior to viability, states may regulate as long as no undue burden;
after viability, may prohibit but not if necessary to protect W's life or health

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abortion restrictions

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ok if no undue burden;
spousal consent & notification are unconst;
parental notice & consent are ok, if alternative judicial procedure`

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right to refuse medical treatment

Back 27

competent adults may refuse;
state may req C&C evid that a person wanted termination;
state may prevent family members from terminating treatment of another

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race & national origin

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strict scrutiny;
if facially neutral, must prove discrim impact & intent

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gender classifications

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intermed scrutiny;
if facially neutral, must prove discrim impact & intent;
otherwise, only rational basis

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alienage

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generally strict scrutiny
but rational basis for self-government & democratic process (voting, policing, jury but not notary public);

rational basis for congressional axn

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bastards

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non-marital children get intermediate scrutiny;

but outright discrim is unconst

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fundamental rights under EPC

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right to travel, if > 50 day;
denying the vote to some citizens;
use of race in drawing election lines;
NO fundamental right to education

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1st A content & scrutiny

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content-based: strict scrut;
content-neutral: intermed scrut

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prior restraints

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orders that stop speech b/f it occurs;
court orders must meet strict scrut and must be complied with until overturned;

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vagueness

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if a reasonable person cannot tell what speech is prohibited and what is allowed

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overbreadth

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if it regulates substantially more speech that the Const allows

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fighting words

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unconst'ly vague and overbroad

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symbolic speech

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govmt can regulate if it has an important interest unrelated to the suppression of the message

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protected symbolic speech

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flag burning;
cross burning (unless intent to threaten);
contribution limits to candidates;
anonymous speech

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not-protected symbolic speech

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draft card burning;
nude dancing;
expenditure limits

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obscenity test

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material must appeal to a purient interest (local stand);
material must be patently offensive under the obscenity law;
must lack serious value (national standard)

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commercial speech

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regulated if meets intermed scrut; narrowly tailored, but not least restrictive alternative

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defamation

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public figure - P must prove falsity and actual malice;

private figure/public concern - falsity & negligence; punitive with malice

else - punitive w/o showing malice

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public forums

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if not content neutral, then strict scrut;

if content neutral, must be narrowly tailored to compelling govmt interest; & leave open alternative channels of communication; intermed scrut

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non-public forums

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any reasonable reg is allowed; only need legitimate interest

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restricting group membership

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strict scrut

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limiting media's publishing of facts

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media may not be punished for reporting a true fact, lawfully obtained, even if inadvertently revealed

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trial closure

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only if necessary to preserve an overriding interest and narrowly tailored

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Free Exercise Clause

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cannot be used to challenge a neutral law of general applicability

Empt Division v. Smith / peyote

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Lemon Test

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use if neutral law with effect of establishment:

SEX:
Secular purpose;
Effect must not advance or inhibit religion;
no eXcessive entanglement

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Establishment Clause

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If discrimination, use strict scrutiny;

if not, use lemon/ SEX

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parochial schools

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govmt may give assistance or equipment, as long as not used for religious instruction

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body w/administrative powers

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congress may not appoint members of a body w/administrative or executive powers;

appointing to an executive function is the president's job

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ad valorem property tax

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a tax based on the % of assessed value and can only be levied at the end of a distribution chain