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71 Cards in this Set

  • Front
  • Back
Elements of Cases and controversies requirement for federal courts
not political question
standing requirements
No third party standing (subject to exceptions)
No generalized grievances (subject to exception)
Exceptions to the rule of no third party standing
Must meet all standing requirements and one of the following:
1. permitted if close relationship between the P and the 3rd party
2. permitted if injured 3rd party is unlikely to assert its own rights
3. Organization may sue where: one of its members would have standing, interests are germane to the purpose of the organization and neither the claim nor relief requires participation of individual members
Factors to determine ripeness when dealing with review of a statute or regulation before enforcement
1. Hardship that will be suffered without preenforcement review
2. Fitness of the issues and the record for judicial review
Exceptions to the rule of mootness
1. Wrong capable of reoccurrence that would also avoid review
2. Where D has voluntarily stopped violation but is free to resume it
3. Class action suits - where there is still injury to one member of the class
Examples of political question cases
1. where claim is based on republican form of government (ie. adopting new law)
2. Challenges to presidents conduct of foreign policy
3. Challenges to impeachment/removal process
4. Challenges to partisan gerrymandering
Supreme court jurisdiction
(must have standing)
Case must be from:
- grant of writ of cert from state/ct. of appeals
- Direct appeal from 3 judge panel of district court
- Original jurisdiction - for suits between states

Final judgment rule

No independent and adequate state law ground (reversal on the federal law claim must change the outcome of the case)
Lower federal court jurisdiction
(case and controversy requirement must be met)
1. will hear no case against state government
- sovereign immunity

2. Abstention - will not enjoin pending state court proceedings
Exceptions to sovereign immunity
1. Waiver
2. Statutes passed pursuant to 14th amendment
3. federal government can sue state government
Where Congress has a general police power
Indian reservations
Federal Land and territory
Scope of Congress' power under Section 5 of the 14th amendment
Can only pass laws to prevent or remedy violations of rights recognized by courts and such laws must be proportionate and congruent to remedying constitutional violations
(laws must be narrowly tailored to rights)
When will a state law be preempted
1. Express preemption
2. Implied preemption
- federal and state law is mutually exclusive (cant stand together)
- state law impedes the acheivement of a federal objective
- where congress evidences a clear intent to preempt state law
3. states cant tax or regulate federal government activities
Where state/local law does not discriminate against out of staters
1. The privileges and immunities clause of Article 4 does not apply (no discrimination)
2. But if it burdens interstate commerce Employ Balancing test - If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens on interstate commerce exceed the laws benefits
Where state/local law does discriminate against out of staters
1. Dormant commerce clause - If the law burdens interstate commerce it violates the dormant commerce clause unless government can show it is necessary to achieve an important government purpose
- Exceptions:
a. Congressional approval
b. Market participant

2. If the law discriminates with regard to out of staters ability to earn a livelihood/civil liberties, it violates the privileges and immunities clause of Article 4 unless it is necessary to achieve an important government purpose
Restrictions on ability of state taxation on interstate commerce
1. States may not use their tax systems to help in-state businesses
2. A state may only tax activities if there is a substantial nexus to the state
3. State taxation of interstate businesses must be fairly apportioned by what is performed in the state
Requirements of full faith and credit to judgments in other states
Must give full faith and credit as long as in other states proceeding:
1. court had jurisdiction over the parties and the subject matter
2. judgment was on the merits
3. judgment is final
Situations where private conduct must comply with the constitution
1. Public function
2. Entaglement
Examples of entanglement (all that is required for exam)
a. Courts cant enforce racially restrictive covenants
b. State action when the government leases premise to a restaurant that racially discriminates
c. State action when a state provides books to schools that racially discriminate
a. There is no state action when private school that is over 99% funded by the government fires a teacher because of her speech (government subsidy not enough here)
e. No state action when the NCAA orders the suspension of a coach at a state university
f. State action when a private entity regulates interscholastic sports within a state
g. No state action when a private club with a liquor license from the state racially discriminates
i. Liquor license from the state was not enough for entanglement
Which amendments of the bill of rights are not incorporated to the states via the 14th amendment
A. 2nd amendment right to bear arms – state can enact gun control
B. 3rd amendment – to not have a soldier quartered in a persons home
C. 5th amendment right to grand jury indictment in criminal cases - no grand jury requirement in state
D. 7th amendment right to jury in civil cases
E. 8th amendment right against excessive fines
Rational basis test
Law must be rationally related to a (conceivable) legitimate government purpose

Burden of proof on challenger
Intermediate Scrutiny
Law is upheld if substantially related (narrowly tailored) to an important government purpose

Burden is on the government
Strict scrutiny
law will be upheld if it is necessary (no less restrictive means) to achieve a compelling government purpose

Burden is on the government
What is necessary before an adult is institutionalized
DP requires notice and a hearing (except for an emergency)
Procedures due when parent institutionalizes child
DP requires screening by neutral factfinder
Procedural due process analysis
Step 1 - has there been a deprivation of life, liberty or property via at least reckless conduct (unless an emergency)
Step 2 - what procedures are required to deprive a person of this interest (balancing test)
Procedural DP balancing test
1. persons interest
2. ability of additional procedures to increase the accuracy of fact finding
3. governments interest
What procedures are due for welfare benefits termination
notice and hearing prior to cut-off
What procedures are due for social security disability termination
Hearing after cut-off
What procedures are due for students being disciplined by public schools
notice of the charges and an opportunity to explain – no hearing
What procedures are due before parents right to custody of child can be permanently terminated
notice and hearing
What procedures are due for Punitive damage awards
judicial review (cant be grossly excessive) and instructions to the jury
What procedures are due for American citizen detained as an enemy combatant
Notice, representation and a hearing
What procedures are due for
prejudgment attachment or government seizure of assets
Notice and hearing (unless exigent circumstances)
Protection under the DP clause for economic liberty
Rational Basis (look to takings clause for protection of economic liberty)
Test under the takings clause
Step 1 - is there a taking
a. possessory taking (always)
b. regulatory taking - regulation leaves NO economically viable use of property; or regulation's burdens on owner are disproportionate to the governments benefits; government can reasonably deny owner temporary use of property

Step 2 - if there is a taking, is it for public use (reasonable belief)

Step 3 - If taking for public use, was just compensation paid (measured in terms of loss to the owner)
Test under the contract clause for interference with private contracts
State or local interference with private contracts must meet the intermediate scrutiny test
- is the law interfering with parties rights to a contract reasonably and narrowly tailored to an important and legitimate public interest
Test under the contract clause for interference with government contracts
Strict scrutiny
Test for retroactive civil liability
rational basis
What is implicated when dealing with fundamental rights (privacy) and what is the test to protect them
Substantive due process

Test = strict scrutiny (government can restrict fundamental rights only where strict scrutiny is met)
Fundamental privacy rights
Right to marry
Right to procreate
Right to custody of children (irrebutable presumption where child born while couple is married)
Right to keep family together
Right to control the upbringing of children
Right to purchase and use contraceptives
Right to abortion (limited)
Right to engage in private consensual homosexual activity
Right to refuse medical tratment (may require clear and convicing evidence) - and not to physician assisted suicide
Right to abortion (details)
Pre-viability - cant outlaw abortions and can not be an undue burden on decision to abort
- 24 hr. waitig period - no undue burden
- requirement that abortions be done by doctor - not undue burden
- prohibition of partial birth abortions is an undue burden
- spousal consent is an undue burden

After viability - states can prohibit abortions unless necessary to protect womans life or health

Parental notice and consent laws are OK provided there is an alternative
Analysis of Equal protection claims
what is the classification
What level of scrutiny should be applied
Does this law meet the level of scrutiny
Level of scrutiny for classifications based on race
Strict scrutiny
Level of scrutiny for classifications based on national origin
Strict scrutiny
Proving racial classification if law is facially neutral
Discriminatory intent & discriminatory impact
When are numerical set-asides for a minority permissible
clear proof of past discrimination (law will be strictly scrutinized - so this will be compelling state interest)
Level of scrutiny for classifications based on gender
intermediate scrutiny
Level of scrutiny for classifications based on alienage
Generally strict scrutiny
- But rational basis for classifications concerning self government and democratic process AND congressional discrimination against aliens in immigration matters
- But, intermediate scrutiny for discrimination against undocumented alien children
Self government and democratic process exclusions to strict scrutiny of alienage classifications
Right to vote
Right to be police officer/probation officer
Right to be a teacher
Right to serve on a jury
Standard of review for laws that discriminate against non-marital children
Intermediate scrutiny
Standard of review for laws that discriminate based on age
Rational basis
Standard of review for laws that discriminate based on disability
Rational basis
Standard of review for laws that discriminate based on Wealth
Rational basis
Standard of review for economic regulations
Rational basis
Standard of review for laws that discriminate based on sexual orientation
Rational basis
Fundamental rights protected under equal protection
Right to travel (among the states) - strict scrutiny
Right to vote
- no right to education
Level of review for Content based restrictions on speech
Strict scrutiny

Content based include: viewpoint restrictions and subject matter restrictions
Level of review for content neutral speech restrictions
intermediate scrutiny
When can speech licenses be required
only it there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority

And, licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review if license is denied
When can the government regulate symbolic speech (conduct that communicates)
WHen the government has an important interest other than just the suppression of the conduct
And the impact on communication is no greater than necessary to achieve the governments purpose
3 part test of obscenity
1. material must appeal to the prurient interest (shameful/morbid interest in sex)
2. material must be patently offensive under the law prohibiting obscenity (state/local law)
3. material must lack serious redeeming artistic, literary political or scientific value (national standard)
Regulation of commercial speech
1. Advertising for illegal activity and false deceptive ads are not protected by the 1st amendment
2. True commercial speech that inherently risks deception can be prohibited
- government may prevent professionals from advertising or practicing under a trade name
- government can prohibit attorney from in person solicitation of clients for profit (no ambulance chaser) but not accountants

3. iii. other commercial speech can be regulated if intermediate scrutiny is met
iv. Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative
Defamation case brought by public official/public figure
1. must prove actual malice

2. Compensatory damages presumed
- punitive damages allowed

3. P must prove falsity
Defamation case brought by private figure on matter of public concern
1. P must prove D was negligent in publication and actual injury

2. Compensatory damages for actual injury; presumed/punitive damages require actual malice

3. P must prove falsity
Defamation case brought by private figure on private matter
1. P must prove at least negligent publication

2. Damages - compensatory for actual injury; presumed or punitive damages need not prove actual malice

3. Burden on D to prove truth
Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, where:
the broadcaster did not participate in the illegality and the matter on the tape was of public importance
Non-public forums
Military bases
Area outside jails
Advertisements on city buses
Sidewalks outside of post office
Airports - can prohibit solicitation of funds in airport but not distribution of literature in airports
To punish membership in a groung must:
Meet strict scrutiny and
- person must be actively affiliated with the group,
- know of its illegal activities
- with the specific intent of furthering those illegal activities
Laws that require disclosure of group membership must pass:
Strict scrutiny review if disclosure would chill association
Laws that prohibit a group from discriminating are constitutional unless...
they interfere with intimate association (eg. small dinner party) or expressive activity (eg. nazi party can exclude jews b/c excluding these groups is an integral part of the expressive activity of the group)
Lemon test to determine violation of the establishment clause
law will be valid if:
- Secular purpose
- effect is neither to advance or inhibt religion
- there is no excessive entanglement with religion