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54 Cards in this Set

  • Front
  • Back
Present Recollection Recorded
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)
Standing Reqs
"Which P has the best standing?"
choose P with personal injury;
if more than one, choose economic loss
Generalized Grievances
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
Taxing and spending
Congress may tax & spend for the "general welfare"
so "gen wel" is ONLY true for taxing/spending questions
§ 5 power
congress may only prevent or remedy violations of rights;
laws must be proportionate and congruent
delegations of powers
NO limits on Congress's ability to delegate
so wrong choice: "law is an excessive delegation"
treaty conflicts
if conflict with fed statute, last in time wins
limits on removal (firing)
congress may only limit removal where desirable to have independence from executive;
cannot prohibit removal, only limit to good cause
state taxes on feds
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
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."
P or I
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;"
No discrimination against out-of-state
then maybe DCC; never P&I
DCC exceptions
congressional approval
market participants
P&I violation
discrim against out-of-staters with regard to their ability to earn livelihood, important economic activity, or civil liberties
FF&C reqs
on the merits
13th A
can be used to enact statutes prohibit private race discrim; the discrim violates the statute
Exception to State Axn req for discrim
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)
rational basis test
"upheld if rationally related to a legitimate govmt purpose"
BoP: Challenger
intermediate scrutiny
"if substantially related to an important govmt purpose"
must be narrowly tailored
BoP: Govmt
strict scrutiny
must be necessary to achieve a compelling govmt purpose
means must be necessary (least restrictive alternative)
BoP: Govmt
Contract Clause
applies only to existing Ks;
state or local interference must meet intermed scrut;
interference with its own Ks must meet strict scrut;
ex post facto
law that criminally punishes conduct that was lawful when done
bill of attainder
law that directs the punishment of specific persons
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
abortion restrictions
ok if no undue burden;
spousal consent & notification are unconst;
parental notice & consent are ok, if alternative judicial procedure`
right to refuse medical treatment
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
race & national origin
strict scrutiny;
if facially neutral, must prove discrim impact & intent
gender classifications
intermed scrutiny;
if facially neutral, must prove discrim impact & intent;
otherwise, only rational basis
generally strict scrutiny
but rational basis for self-government & democratic process (voting, policing, jury but not notary public);

rational basis for congressional axn
non-marital children get intermediate scrutiny;

but outright discrim is unconst
fundamental rights under EPC
right to travel, if > 50 day;
denying the vote to some citizens;
use of race in drawing election lines;
NO fundamental right to education
1st A content & scrutiny
content-based: strict scrut;
content-neutral: intermed scrut
prior restraints
orders that stop speech b/f it occurs;
court orders must meet strict scrut and must be complied with until overturned;
if a reasonable person cannot tell what speech is prohibited and what is allowed
if it regulates substantially more speech that the Const allows
fighting words
unconst'ly vague and overbroad
symbolic speech
govmt can regulate if it has an important interest unrelated to the suppression of the message
protected symbolic speech
flag burning;
cross burning (unless intent to threaten);
contribution limits to candidates;
anonymous speech
not-protected symbolic speech
draft card burning;
nude dancing;
expenditure limits
obscenity test
material must appeal to a purient interest (local stand);
material must be patently offensive under the obscenity law;
must lack serious value (national standard)
commercial speech
regulated if meets intermed scrut; narrowly tailored, but not least restrictive alternative
public figure - P must prove falsity and actual malice;

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

else - punitive w/o showing malice
public forums
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
non-public forums
any reasonable reg is allowed; only need legitimate interest
restricting group membership
strict scrut
limiting media's publishing of facts
media may not be punished for reporting a true fact, lawfully obtained, even if inadvertently revealed
trial closure
only if necessary to preserve an overriding interest and narrowly tailored
Free Exercise Clause
cannot be used to challenge a neutral law of general applicability

Empt Division v. Smith / peyote
Lemon Test
use if neutral law with effect of establishment:

Secular purpose;
Effect must not advance or inhibit religion;
no eXcessive entanglement
Establishment Clause
If discrimination, use strict scrutiny;

if not, use lemon/ SEX
parochial schools
govmt may give assistance or equipment, as long as not used for religious instruction
body w/administrative powers
congress may not appoint members of a body w/administrative or executive powers;

appointing to an executive function is the president's job
ad valorem property tax
a tax based on the % of assessed value and can only be levied at the end of a distribution chain