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65 Cards in this Set
- Front
- Back
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What must a P show to have standing?
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Injury
Causation and redressability No third party standing Exceptions Close relationship Injured 3d party unlikely to be able to represent himself Organization, if Members would have standing Interests are germane to the org's purpose AND Niether the claim nor relief requires participation of individual members No generalized grievances (except challenging govt expenditures in violation of the establishment clause) |
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What does a court consider when determining ripeness?
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Hardship that would be suffered without pre-enforcement review
Fitness of the issues for judicial review |
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What is mootness?
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Requires a live controversy UNLESS
Capable of repetition but evades review b/c of its inherently limited time duration Voluntary cessation Class actions |
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When does the political question doctrine usually apply?
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Foreign affairs
Political gerrymandering Republican form of government Impeachment/removal |
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When is the Supreme Court obligated to hear a case?
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Review of a decision of a 3 judge federal district court panel
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When will the Supreme Court hear a state court decision
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Only if the decision was NOT based on an independent and adequate state laww ground
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When will a federal court abstain from hearing a state court decision?
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Will not enjoin pending state criminal proceedings UNLESS brought in bad faith
Unsettled question of state law |
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What is the 11th amendment?
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Bars private suits against states in federal court
Exceptions: state officers, state consents, Congress removes immunity |
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Can the federal government sue a state government?
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Yes
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What is sovereign immunity?
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Bars private suits against states in state courts or federal agencies
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What are Congress's 3 main powers?
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Taxing
Spending Commerce |
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What are Congress's implied police powers
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Military
Indian reservations Lands (federal) DC |
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When may Congress tax and spend?
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Anytime for the general welfare
Tax must bear some relationship to revenue production Can't tax exports to foreign countries |
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When can Congress regulate commerce under the commerce clause?
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Commerce with foreign nations, Indians, or among the states:
Channels of interstate commerce Instrumentalities and persons/things on interstate commerce Economic activities that have a "substantial effect" on interstate commerce If it's a non-economic activity: effect can't be aggregated to find interestate commerce |
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What is the 10th amendment?
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It says that all powers not granted to the US nor prohibited to the states are resreved to the states
Congress can't compel regulatory or legislative action by states but CAN put strings on $ if conditions are expressly stated ANd relate to purpose of the spending program Congress can prohibit harmful commercial activity |
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What is the Supremacy Clause and preemption?
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Valid federal law trumps an inconsistent state law
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What is implied preemption?
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Found where statute is silent but:
it's not possible to simultaneously comply with federal and state statutes State law impedes achievement of a federal objective OR Congress evidences a clear intent |
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What is inter-governmental immunity?
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States CAN'T tax OR regulate the federal government
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What is the Import-Export Clause?
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States can't tax imports or exports without Congressional consent
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What is the dormant commerce clause?
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Where state or local law places an "undue burden" on interstate commerce
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What is the privileges and immunities clause of article IV?
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Prevents states from discriminating against other states or favoring their own citizens related to:
Commerce Civil liberties WITHOUT substantial justification NOTE: look for language expressly favoring citizens |
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What is the privileges and immunities clause of article of the 14th amendment?
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It preserves a person's right to travel
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How do you determine if the commerce clause has been violated?
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Does the state law discriminate against out of staters?
If no: burden on interstate commerce violates the commerce clause if the burden outweighs the benefit If yes: it violates the commerce clause UNLESS 1) it is necessary to achieve an important government interest AND 2) there is no less discriminatory alternative available Ex: baitfish UNLESS: Congress approves it Market participant exception |
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How do you determine if the privileges and immunities clause of article IV?
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Does law touch on commerce OR civil liberties?
If yes, does the state law discriminate against out of staters? If no: no violation/doesn't apply If yes: violates UNLESS necesary to achieve an important government purpose Does NOT apply to aliens or corps |
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When does a state's tax violate the commerce clause?
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States CAN'T discriminate against interstate commerce
Can ONLY tax activities if: Substantial nexus between product and taxing state Fairly apportioned Fair relationship between tax and benefit the taxed party receives NOTE: also consider limitations on state regulation of commerce |
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Can a state tax the federal government?
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If it is indirect and nondiscriminatory
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When does the full faith and credit clause apply?
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Courts must give full faith and credit to judgments where
Court has PJ and SMJ Judgment is on the merits Judgment is final |
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May a state sue another state without its consent?
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Yes
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May a state sue the federal government?
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No
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Through what means can Congress regulate private conduct?
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13th amendment prohibition on slavery
Commerce Clause |
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When MUST the private sector comply with the constitution?
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Public function exception: private party is performing a task traditionally and exclusively done by the government
Entanglement exception: government affirmatively authorizes, encourages unconstitutional activity |
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What is rational basis review?
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Means: rationally related
Ends: legitimate purpose BoP: challenger |
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What is intermediate scrutiny?
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Means: substantially related
Ends: important purpose BoP: state |
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What is strict scrutiny?
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Means: necessary
Ends: compelling purpose BoP: state |
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What is the test for whether there's a procedural DP violation?
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Has there been a deprivation of life, liberty or propery?
Government conduct must be intentional or reckless, not merely negligent If yes, what procedures need to be in place? Consider: Importance of the interest to the individual Abililty of additional procedures to increase accuracy of the fact-finding Government's interest: time, $ |
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What does SDP protect?
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Economic liberties
Property Privacy |
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What level of scrutiny do economic rights receive under SDP?
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Rational basis review
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What test is used for the takings clause of the 5th amendment?
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Government may take private property for public use if it gives just compensation.
Ask: Is it a taking? Possessory taking: government confiscates or occupies property Regulatory taking: government regulation leaves no economically viable use for the property Is it for public use? Govt has to have reasonable belief that it will benefit public use Just compensation? Based on loss to owner in reasonable market value terms |
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What is the contracts clause? How is it violated?
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No state shall impair obligations of contracts
State/local govt can interfere with existing "private" contracts IF intermediate scrutiny met It substantially interferes with a party's right under an existing contract It is reasonably and narrowly tailored means of promoting an important and legit public interest State or local interference with government contracts must meet SS |
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What is the ex post facto clause?
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Criminally punishes conduct that was lawful when it was done or increases punishment after committed
Govt CAN'T adopt such laws in criminal cases |
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What is a bill of attainder?
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Legislative act that inflicts punishment without a judicial trial
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What are fundamental rights subject to SS?
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Right to marry
Right to procreate Right to custoy of children (can be terminated upon showing of abuse or neglect) Right to keep family together Right to control upbringing of children Right to purchase and use contraceptives Right to vote Right to travel |
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What scrutiny applies to abortion?
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Undue burden standard:
Pre-viability: state can't prohibit but can regulate so long as they don't create an undue burden Post-viability: state can prohibit UNLESS necessary to protect woman's life/health |
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What is the EP clause inquiry?
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What is the classification?
Is there discrimination? Facial Intent AND impact What level of SS applies? Does the law meet the level of scrutiny |
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What classifications receive SS under the EP clause?
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Race
National origin Alienage (generally) |
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What classifications receive intermediate scrutiny under the EP clause?
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Gender
Illegitimacy Undocumented alien children |
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What classifications receive RB review under the EP clause?
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Everything else, including:
Age Wealth Disability Alienage classifications related to self-govt/democratic process |
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To what does the EP Clause apply?
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ONLY the states
EP applies to the federal govt through the DP clause of the 5th amendment |
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Can peremptory challenges be based on race or gender?
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No
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What is the test for discrimination based on race?
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SS
For affirmative action, consider the following justifications: Remedying past discrimination: ONLY if persistent AND readily identifiable Diversity: ONLY in colleges, not elementary or high schools Race can't be used to assign students to schools unless SS met (diversity not sufficient unless college) Race can be considered as ONE factor among many for admissions, legislative apportionment (can't be predominant factor) Numerical set asides NOT ok unless clear proof of past discrimination |
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What level of scrutiny applies to gender discrimination?
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Must meet an exceedingly persuasive justification (intermediate)
Invalid justifications: Role stereotypes Valid justifications: Remedying past discrimination, remedying differences in opportunities |
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What level of scrutiny applies to alienage?
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Generally, SS
BUT RB for Federal legislation (not state) Voting Jury duty Certain professions: cop, teacher, probation officer Undocumented aliens Undocumented alien children denied public education: intermediate scrutiny |
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What is included in the fundamental right to travel
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Only applies to domestic travel
Durational residency requirements must meet SS More than 50 days for voting not ok |
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What is included in the fundamental right to vote?
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Must meet SS
Districts have to be evenly divided At large elections OK unless discriminatory purpose Use of race in drawing election lines must meet SS Property requirements invalid Reasonable residency requirements valid |
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What is a prior restraint and what level of scrutiny does it get?
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Stopping speech before it occurs:
Court order suppressing speech: SS Gag orders on press to prevent prejudicial pretrial publicity: NO Govt can require a license for speech only if Important reason Clear criteria leaving almost no discretion to the licensing authority AND Procedural safeguards |
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When is a statute void for overbreadth or vagueness?
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Overbreadth: regulates substantially more speech than constitutional
Vagueness: reasonable person can't tell what speech is prohibited |
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What levels of scrutiny apply to speech?
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Content-based restriction: SS
Content-neutral law burdening speech: intermediate scrutiny |
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What level of scrutiny applies to symbolic speech?
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Must have an important interest
Unrelated to the suppression of speech Impact on the communication must be no greater than necessary to achieve the government's goal |
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What forms of content-based speech are unprotected or less-protected?
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Incitement of illegal activity
Fighting words Obscenity Child porn Speech by govt employees in performance of their duties BUT profane and indecent speech ok BUT private possession of obscene material ok BUT defamation: malice + fault for public official/figure in issue of public concern |
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What is obscene speech?
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Appeals to the prurient interest
Patently offensive Lacks serious redeeming artistic, literary, political, or scientific value according to a national standard |
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What level of scrutiny applies to commercial speech?
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Advertising for illegal activity, false and deceptive ads NOT ok
States can prevent professionals from advertising under a trade name, prohibit attorney solicitation Other commercial speech: must meet intermediate scrutiny |
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How can the government regulate speech-related conduct and assembly?
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Public and limited public fora:
Regs must be SM and viewpoint neutral Reg must have a TPM restriction that is Narrowly tailored Serves and important govt interest Leaves adequate alternative places for communications Permit requirements can't give govt unfettered discretion over fee Non-public forum: Regs must be viewpoint neutral And reasonably related to a legit govt purpose Ex: military bases, outside prisons, ad space on buses, sidewalks of post office, airports No 1st amdt right of access to private property |
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What is freedom of association?
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Laws that prohibit or punish group membership must meet SS
CAn only punish if person is Actively affiliated Has knowledge of the group's illegal activities Has specific intent to further those illegal activities Can discriminate if: Intimate association Discrimination is integral to the expressive activities of the group |
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What does the Free Exercise Clause protect?
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Reg specifically designed to interfere with regulation: SS
But a neutral law of general applicability (that may have discrim effect): OK Government can't punish based on religious belief: no religious oath in public office |
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What does the Establishment Clause protect?
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Law must have
Secular purpose Primary effect is neither to enhance nor inhibit religion No excessive govt entanglement Govt can't discriminate against religion generally or between religions: SS applies |
