Constitutional Law Bar Review Nevada 2012

Front 1

What must a Plaintiff show in order to have standing?

Back 1

Injury or likelihood of future harm caused by the defendant and redressability.

Front 2

Where do Congress' enumerated powers come from?

Back 2

Article 1, Section 8

Front 3

What are the two rules regarding Congress' ability to regulate interstate commerce (IC)?

Back 3

1. Congress can regulate any activity having a "substantial economic effect" on IC.
2. Congress can regulate any activity having a "cumulative impact" on IC.

Front 4

What two things must occur in order to enact a law?

Back 4

1. Law must pass both house and senate by majority vote (bicameralism).
2. Must give the bill to the President to sign or veto in its entirety (presentment).

Front 5

What is the hierarchy when there is conflict between treaties, executive agreements, and federal and state laws?

Back 5

1. US Constitution
2. Treaty or Federal Law (last in time prevails)
3. Executive Agreement
4. State Law

Front 6

In what two ways can a state law be preempted by federal law?

Back 6

1. If the federal law "wholly occupies the field"
2. If a federal law and a state law conflict

Front 7

What is the test for determining if a federal law wholly occupies the field?

Back 7

1. It is a field not traditionally controlled by the States
2. The federal legislation is very detailed
3. The federal government has a substantial interest in the field
4. There is a need for a uniform national system in the field

Front 8

When is state taxation of IC valid?

Back 8

When there is a "substantial nexus" between the state interest and the activity being taxed.
Tax must be fairly apportioned to prevent undue burden on IC
Tax must not discriminate against IC in favor of local commerce.
Tax must be fairly related to the services provided by the state.

Front 9

When may States tax goods moving in IC?

Back 9

Goods may not be taxed while in transit. They may be taxed at the beginning of transit, at the end of transit, and at breaks in transit involving business.

Front 10

How may States tax instrumentalities of IC?

Back 10

Tax must be fairly apportioned and cannot unduly burden IC.

Front 11

What is the test when a State's regulations discriminate against IC?

Back 11

State must show that the action is necessary to achieve an important government purpose and that no less discriminatory means are available.

Front 12

What is the test when a State's regulations burden against IC?

Back 12

State benefits must outweigh the burdens on IC.

Front 13

Can aliens and corporations sue under the DCC?

Back 13

Yes

Front 14

Can aliens and corporations sue under P&IC?

Back 14

No, the plaintiff must be a private citizen from another state

Front 15

What part of the Constitution deals with the P&IC?

Back 15

Article 4

Front 16

What is the rule for the P&IC?

Back 16

No State can deny citizens of other states the same privileges it gives its own citizens regarding basic economic rights.

Front 17

What is the test for the P&IC if the regulation is not discriminatory?

Back 17

Rational Basis

Front 18

What is the test for the P&IC if the regulation is discriminatory?

Back 18

The regulation must be closely related to substantial State purpose and there must be no less restrictive means.

Front 19

What part of the Constitution deals with Taking?

Back 19

5th Amendment

Front 20

What is the Takings rule?

Back 20

State or federal government can take private property for public use if:
1. They pay just compensation
2. They reasonably believe that it will benefit the public.

Front 21

What is the balancing test for Procedural DP?

Back 21

1. Importance of P's interest
2. Risk of erroneous action through the current process used
3. Government's burden in providing the process

Front 22

Rational Basis

Back 22

Rationally related to a legitimate government purpose.
Burden on P.
Law is presumptively valid.

Front 23

Intermediate Scrutiny

Back 23

Substantially related to an important government purpose.
Burden on government.

Front 24

Strict Scrutiny

Back 24

Necessary to achieve a compelling government purpose and no less restrictive means are available.
Burden on government.

Front 25

What are considered to be fundamental rights?

Back 25

Privacy, interstate travel, voting, freedom of speech, association and religion.

Front 26

What does "privacy" include?

Back 26

Right to: marry, procreate, custody of one's children, keep the family together, purchase and use contraceptives.

Front 27

What test is used for abortion?

Back 27

Prior to viability, States cannot prohibit abortion, but they can regulate so long as it doesn't create an "undue burden" on a woman's right to have an abortion.

Front 28

What types of discrimination are included in the suspect class?

Back 28

Race, national origin, aliens

Front 29

What types of discrimination are included in the quasi-suspect class?

Back 29

Gender, illegitimacy, children of illegal aliens

Front 30

Under EP, what standard do you apply if a regulation is facially discriminating against a suspect class?

Back 30

Strict Scrutiny

Front 31

Under EP, when would you apply strict or intermediate scrutiny to a regulation that was facially neutral?

Back 31

Only if the regulation has a discriminatory intent and a discriminatory impact.

Front 32

When would a State's discrimination against an alien only be subject to rational basis review?

Back 32

When the State is discriminating in an area regarding self-government and the democratic process. This includes the right to vote, be a juror, be a cop or probation officer, or be a teacher in K-12.

Front 33

What level of scrutiny is content-based regulation of speech subject to?

Back 33

Strict Scrutiny

Front 34

What test is applied when there is content-neutral regulation of speech in a public forum?

Back 34

The regulation must be narrowly tailored to achieve an important government purpose and must leave open alternative channels of communication. Regulation is okay if it is merely a time, place and manner restriction.

Front 35

What about a semi-public forum?

Back 35

Same

Front 36

What about a non-public forum?

Back 36

Rational Basis

Front 37

When can the government require a license or permit before exercising 1st Amendment rights?

Back 37

1. Content neutral
2. Narrowly drawn
3. No unfettered discretion -- clear criteria leaving almost no discretion to licensing authority
4. Decision to grant license must be made reasonably quickly
5. Denial of license must allow for prompt judicial review

Front 38

What are the categories of unprotected speech?

Back 38

1. Clear and present danger/incitement
2. Fighting words
3. Obscenity
4. Defamation

Front 39

What is the test for clear and present danger?

Back 39

Speech can be restricted if:
1. It is directed at producing imminent unlawful conduct; and
2. It is likely to produce such unlawful conduct.

Front 40

What is the test for fighting words?

Back 40

Insults are likely to provoke an ordinary person to commit violence.

Front 41

What is the test for obscenity?

Back 41

Material is obscene if:
1. It appeals to a prurient interest in sex (local standard)
2. Is patently offensive as defined by the law prohibiting obscenity (local or state standard)
3. It lacks serious redeeming literary, artistic, political or scientific value (reasonable person, national standard)

Front 42

Is profane language protected by the 1st Amendment?

Back 42

Generally yes. Exceptions include:
1. It is not fully protected if using broadcast media. Government may limit the hours to those when children are sleeping.
2. It is not protected in schools.

Front 43

What must a public figure plaintiff prove in a defamation suit?

Back 43

1. Defamatory statement
2. Publication
3. Damage to P's reputation
4. Falsity
5. Actual malice (D knew statement was false or acted with reckless disregard for the truth or falsity of the matter)

Front 44

What must a private figure plaintiff prove in a defamation suit regarding a matter of public concern?

Back 44

1. Defamatory statement
2. Publication
3. Damage to P's reputation
4. Falsity
5. Negligence (D should have investigated)

Front 45

To what level of scrutiny is purposeful interference with the free exercise of religion entitled?

Back 45

Strict Scrutiny

Front 46

To what level of scrutiny is the incidental burden on free exercise of religion entitled?

Back 46

Rational Basis

Front 47

What is the test for the Establishment Clause?

Back 47

1. Primary purpose of the law is secular;
2. Primary effect of the law neither advances nor inhibits religion; and
3. There is no excessive government entanglement with religion