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123 Cards in this Set

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STATE ACTION
The Constitution applies to government actions but state action might be found under one of these exceptions:
1. Public function doctrine – a private party is performing a function traditionally and exclusively performed by the state.
2. Entanglement doctrine – The state has encouraged or coerced the private actor in such a way that the choice in law must be deemed to be that of the state.
PROCEDURAL DUE PROCESS
If the government deprives a person of life, liberty or property, procedural due process requires that there be notice, an opportunity to be heard and the hearing is before an impartial fact-finder.
DUE PROCESS
Matthews factors
To determine if procedures are accurate, the court will look at
1. the individual’s interest
2. the risk of erroneous deprivation and the value of additional procedures or safeguards
3. the government’s interest, including saving money and administrative efficiency
FREE SPEECH
United States v. O'Brien
Under United States v. O’Brien, a restriction on speech is justified if
1. it furthers a substantial government interest
2. that is unrelated to the suppression of free expression
3. and the restriction is no greater than is needed to further that interest
EQUAL PROTECTION
The equal protection clause of the 14th amendment provides that no state shall deny equal protection of law to any person within its jurisdiction. The due process clause of the Fifth Amendment prevents the federal government from denying equal protection. A government entity denies equal protection when it purposefully treats those who are similarly situated differently without proper justification.
EQUAL PROTECTION
Analysis of a violation
An equal protection violation is shown when
1. a government act classifies or treats allegedly similarly situated persons or classes differently. (Sometimes, an equal protection challenge fails because the groups, a matter of law, are not similarly situated.
2. The state is unable to justify the disparate treatment under the applicable standard of review. The justification depends upon the nature of the class or right being burdened. (List standards of review)
3. Alternatively, the government act can be violative if it is so over- or underinclusive as to be arbitary.
FUNDAMENTAL RIGHTS
Fundamental rights are those that are implicit in our nation’s history and fundamental to the concept of ordered liberty. If a law burdens fundamental rights, it is subject to strict scrutiny.
EQUAL PROTECTION
Suspect classes
The strict scrutiny applies to laws regarding the suspect classes, which are grounps that
1. have immutable characterics and
2. have been subjected to discrimination.
The suspect classes are
1. race
2. alienage
3. national origin
AFFIRMATIVE ACTION
Affirmative action programs are only permitted if they are narrowly tailored to address specific past wrongs of government conduct. Affirmative action is also permitted for university admissions, but only if race is only one of many factors and the individual merits of applicants are considered.
GENDER
A classification based on gender must be substantially related to a significant state interest. This is the category where the court might find classes are not similarly situated for biological reasons.
EQUAL PROTECTION
Alienage
Classifications based on alienage are usually subjected to strict scrutiny. There is one exception for essential government jobs, those that go to the very heart of representative government, and laws related to these jobs are subjected to the rational basis test.
FREEDOM OF EXPRESSION
The First Amendment, which is incorporated to the states through the 14th Amendment, says that Congress shall not abridge the freedom of speech. It prevents the government from trying to control the content of expression without a compelling state interest. Not all expression is protected and expression can be regulated for content-neutral reasons. When the government does so, it must avoid means that would have a chilling effect on expression.
FREE EXPRESSION ANALYSIS
In order to determine whether government conduct has violated free speech rights, several questions must be asked. Those questions concern:
1. Expression – Does the government act regulate expression?
2. Protected – Is the expression protected?
3. Form – Does the form of the government action burden the First Amendment t
4. Content-based or content-neutral? If content-based the regulation must be subjected to strict scrutiny. If content-neutral, the right to regulate depends upon the forum of the speech.
UNPROTECTED SPEECH
Fighting words, incitement, defamation and obscenity are not protected. FIDO
UNPROTECTED SPEECH
Fighting words
Fighting words are not protected. Fighting words are those that by their very utterance inflict harm or are likely to incite a breach of the peace.
UNPROTECTED SPEECH
Incitement
The Brandenburg test for incitement is whether the words are likely to produce
1. Imminent harm
2. A likelihood of producing illegal action
3. And the intent to cause imminent illegality
UNPROTECTED SPEECH
Obscenity
Under Roth v. United States, obscenity is unprotected speech. The Miller test for obscenity considers whether the work
1. caters to the prurient interst in sex of an average person
2. shows sexual conduct in a patently offensive way and
3. and has no redeeming artistic, political, scientific or literary value
FREE SPEECH
Child pornography
Under Ferber v. New York, the court said that essentially that child pornography does not have to meet the Miller test. It does not have to appeal to the prurient interests of an average person, be shown in a patently offensive way or be taken as a whole.
FREE SPEECH
Defamation
Libelous speech is not protected, but there are constitutional limits on how a state can define libel.
COMMERCIAL SPEECH
Central Hudson test
If commercial speech is involved, the Central Hudson test requires the court to determine
1. if the speech is protected by the First Amendment. To be protected, it must be lawful and not misleading
2. whether the government interest is substantial
3. whether the regulation advances the government interest
FREE SPEECH
New York Times v. Sullivan
Under New York Times v. Sullivan, a public figure may not recover damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice.
FREE SPEECH
Gertz v. Welch
The states can determine the appropriate standard for liability for defamation of a private individual as long as it not strict liability.
FREE SPEECH
Vague or overbroad
A law restricting speech that is vague or overbroad is invalid per se.
Vague -- a reasonable person could not understand what speech is being prohibited.
Overbroad -- the law can be construed to encompass protected speech.
CONTENT-BASED
If a regulation is content-based, it must pass the strict scrutiny test.
CONTENT-NEUTRAL SPEECH
If the speech is content-neutral, the right to regulate depends upon the forum of the speech.
FREE SPEECH
Public forum
A public forum is a place that has traditionally been open for speech. If the speech in a public forum, such as on the city streets and in the park, the regulation must be
1. related to a significant state interest
2. narrowly tailored
3. and there are alternative means for the expression of the message
FREE SPEECH
Limited public forum
A limited public forum is other government property which has been opened for speech by policy or practice. The state is not required to keep open limited public forums, but as long as it does so, it is bound by the same standards as apply to a regular forum.
GOVERNMENT PRIVATE PROPERTY
Government private property is not open for speech and is subject to reasonable rules related to the use of the property. The government may restrict speech to expression related to the purpose to which the building is dedicated.
GOVERNMENT EMPLOYEES
Government employees have First Amendment rights if they are speaking on a matter of public concern and not disrupting the workplace. When government employees are speaking in connection with their official duties, even on a public issue, they are not speaking as citizens for First Amendment purposes and can be subjected to employer discipline.
PRIVATE PROPERTY
Private property is not a public forum and can be subjected to reasonable content-neutral regulations for non-owners that pass the rational basis test.
SCHOOLS
Schools are government private property, and students have limited free speech In the absence of constitutionally valid reasons to regulate their speech, students are entitled to First Amendment protection for their views.
FREE SPEECH IN SCHOOLS (TINKER)
In the absence of constitutionally valid reasons to regulate their speech, students are entitled to First Amendment protection for their views.
BETHEL
Students cannot be punished for merely expressing their person views on school premises unless school authorities have reason to believe that such expression will
1. substantially interfere with the work of the school
2. or impinge on the rights of other students
FREE SPEECH IN SCHOOLS (HAZELWOOD)
Educators may exercise control over student speech in school-sponsored expressive activities as long as their actions are reasonably related to legitimate pedagogical (educational) concerns.
PRISONS
Under Turner, restrictive prison regulations are permissible if they are reasonably related to a legitimate penological interest. Four factors are used to weigh reasonablenes
1. is there a rational connection between the regulation and government interest
2. are there alternative means to the inmate of exercising that right (inmate’s interest)
3. what impact would accom-modation of the right have on guards, other inmates and prison resources
4. are there ready alternatives for furthering the government’s interest
s:
FREEDOM OF ASSOCIATION
Freedom of association is implicit in the First Amendment. It safeguards intimate associations from undue intrusion by the state. It also protects the right of people to associate in order to engage in activities protected by the First Amendment, such as speech, advocacy, petitioning the government. A rule that burdens free association must meet strict scrutiny.
MILITARY
Under Parker v. Levy, the fundamental need for obedience and discipline may render permissible within the military restrictions that would be unconstitutional outside of it. Military bases are the kind of public property on which free speech rights can be restricted.
MEMBERSHIP
If membership is select and compelling a broader membership would undermine the group’s purpose, then the right of association will prevail.
STANDARD OF REVIEW
If a law targets religion, or substantially burdens religiously motivated conduct, it must meet strict scrutiny.
ESTABLISHMENT CLAUSE
The First Amendment says that Congress shall make no law respecting establishment of religion. It has been incorporated to the states through the 14th Amendment. It means that
1. the government cannot promote or affiliate with any religious doctrine,
2. may not discriminate among persons based on religion
3. and may not involve itself too deeply in the affairs of a religious institution.
ESTABLISHMENT CLAUSE
EDD v. Oregon
Religiously motivated conduct can be regulated by a generally applicable, neutral law aimed at the conduct only even if the law has the incidential effect of burdening a religious practice. But under the case involving the Santeria church, official action that targets religious conduct cannot for distinctive treatment cannot be shielded by facial neutrality.
ESTABLISHMENT CLAUSE
Lemon test
IIf a law favors a particular religion, it is invalid per se.If the law is facially neutral, the court may apply the test from Lemon v. Kurtzman, which looks at
1. Does the law have a secular purpose?
2. Is its principal effect to advance or inhibit religion?
3. Does it promote excessive government entanglement with religion?

1. Does the law have a secular purpose?
2. Is its principal effect to advance or inhibit religion?
3. Does it promote excessive government entanglement with religion?
ESTABLISHMENT CLAUSE
Agostini test for aid to private schools
If the case involves aid to private schools, the court may use the Agostini test, which is the first two parts of the Lemon test. The key question is whether the government aid is subsidizing religious indoctrination. But under the case involving the Santeria church, official action that targets religious conduct cannot for distinctive treatment cannot be shielded by facial neutrality. (Mitchell v. Helms).
ZELMAN V. SIMMONS-HARRIS
Under Zelman v. Simmons-Harris, which approved school vouchers, the court will decide the program is constitutional 1. it has secular goals
2. is neutral in respect to religion
CONGRESSIONAL POWER
Congressional power is limited to its
1. enumerated power
2. implied powers, under the necessary and proper clause, and
3. inherent powers, those inherent in the concept of national government, particularly involvement in foreign affirs
ENUMERATED POWERS
Congress’ enumerated powers include the commerce power, the tax and spending power, war powers and the property power.
CONGRESSIONAL POWER
War power
Congress has the power to
1. declare war
2. regulate the armed forces and
3. provide for organizing, arming and disciplining the military.
INTERSTATE COMMERCE
Congress has the power to regulate commerce with foreign nations, among the states and with Indian tribes. Congress can regulate 1) the cannels of interstate commerce, such as highways, even if a particular activity occurs wholly intrastate 2) instrumentalities of interstate commerce, such as trucks and 3) activities that have a substantial impact on interstate commerce
DORMANT COMMERCE CLAUSE
Affectation doctrine
Under NLRB v. Jones & Laughlin Steel, Congress has the power to regulate intrastate economic activities if they have such a close and substantial relationship to interstate commerce that their control is needed to protect that commerce from burdens and obstructions.
DORMANT COMMERCE CLAUSE
Cumulative effects doctrine
Under Wickard v. Filburn, Congress has the power to regulate intrastate economic activities even if purely local if undertaken by many individuals together would have a substantial impact on interstate commerce.
STANDARD OF REVIEW FOR EXERCISE OF COMMERCE POWER
The law must be rationally related to a legitimate state interest.
DORMANT COMMERCE CLAUSE
Under the commerce clause, Congress has the right to pass laws to regulate commerce between the states. Modernly, the federal commerce power extends to any class of activity that has a substantial effect on commerce, which includes almost all business activity.
DORMANT COMMERCE CLAUSE
State regulation of commerce
Under the Cooley doctrine, states have concurrent power over commerce within their borders. But there are limits.
1. state law may be preempted by Congress
2. lawt cannot be passed for the purpose of discriminating against interstate commerce and
3. it cannot unduly burden interstate commerce
DORMANT COMMERCE CLAUSE -- Preemption
Under the Supremacy clause, Congress may preempt state legislation in three ways:
1. expressly
2. by implication if a comprehensive federal regulatory scheme shows an intent to exhaust the regulatory field or
3. if the state law conflicts with or frustrates the purpose of federal law
DORMANT COMMERCE CLAUSE
If state law discrminates against interstate commerce
A state regulation that is enacted or enforced for the purpose of discriminating against interstate commerce or giving local business a market advantage is invalid per se. The exceptions are
1. market participant exception
2. necessary quarantine law and
3. the 21st Amendment (alcohol)
DORMANT COMMERCE CLAUSE
Determining if state law burdens interstate commerce
Absent preemption or discrimination, a state regulation may be invalid if the local benefit is outweighed by the burden on interstate commerce. This balance with explained in Pike:
1. there is a legitimate state purpose
2. the regulation is rationally related to that purpose
4. local benefits outweigh burden on interstate commerce and
4. the regulation is narrowly tailored (least burdensome alternative)
CONGRESSIONAL POWER
Tax and spending power
Congress has the power to tax (but not exports) and spend for the general welfare. Also, under South Dakota v. Dole, Congress can also use its spending power to exert pressure on the states by conditioning its spending on 1) an unambiguous condition 2) related to a national concern 3) and the pressure is not so great as to be coercive 4) and the condition is not barred by another constitutional provision
CONGRESSIONAL POWER
Federal property power
Congress has the power to use, dispose of and regulate federal lands and property as long as
1. the nature of the property indicates that the method of disposal is appropriate
2. the use is in the public interest and
3. the use does not interfere with matters reserved to state regulation
SEPARATION OF POWERS
The separation of powers doctrine is not explicit in the Constitution but is inferred from the structure of government. A violation of the separation of powers doctrine occurs when one branch of government aggrandizes itself by taking on functions that belong to another branch of government.
CONGRESSIONAL DELEGATION OF LEGISLATIVE POWER
Congress may delegate its legislative power if
1. the power actually belongs to Congress in the first place 2. the power must be “delegable” and
3. Congress establishes adequate standards to govern how the designated power may be used, but this can be very broad, only some “intelligible principle” is needed
PRESIDENT’S LEGISLATIVE POWERS
President has extremely limited legislative powers. They exist only if 1) Congress delegated such power to him, subject to the limitations of the separation of powers doctrine 3) when he vetoes legislation and 3) under the war powers
LEGISLATIVE VETO
A legislative veto is not permitted. It occurs when Congress delegates power to an agency or the president, but retains the right to veto the actions of the agency or the president.
REMOVAL OF OFFICERS BY THE PRESIDENT
The power to remove officers is split between the president and Congress. The president may remove executive officers; Congress cannot limit this power but can impeach the officers.
REMOVAL OF OFFICERS BY CONGRESS
Congress can remove officials if 1) it vested the appointment in some official other than the president. Congress may only delegate the appointment of “lower federal officers” to the president, courts of law, or the heads of departments. 2) and the office is quasi-legislative or quasi-judicial.
TENTH AMENDMENT
State sovereignty
Under the 10th Amendment, all powers not delegated to the federal government are reserved to the states or the people.
POLICE POWER
Under the police power, states have the right to regulate for the benefit of the health, safety, welfare and morals of their residents. Congress cannot regulation in areas that have traditionally belonged to the state (education, law enforcement and domestic relations). The police power is subject to constitutional limits, such as the supremacy clause and substantive due process.
GUARANTY CLAUSE
Under the guaranty clause, each state is guaranteed the right to a republican form of government. Congress cannot interfere with a state’s right to govern itself, and cannot commandeer a states legislative process.
11th AMENDMENT
The 11th Amendment prohibits states from being sued in federal court subject to the following exceptions:
1. state consent
2. legislation pursuant to section 5 of 14th Amendment and
3. under the stripping doctrine
LAWSUITS AGAINST STATES UNDER THE 14TH AMENDMENT
Lawsuits under section 5 of the 14th Amendment must meet the tests of congruence and proportionality. Congruence requires that the state have a history of persistent unconstitutional behavior. Proportionality means the remedy must be tailored to the harm.
11TH AMENDMENT
Stripping doctrine
The stripping doctrine permits lawsuits in which damages are sought against state officials personally because the official acted illegally.
11TH AMENDMENT
Lawsuits not barred
The 11th Amendment does not bar
1.suits in which injunctive or declaratory relief is sought against federal officials
2. lawsuits against municipalities or other state subdivisions
3. suits where the claim is a state official violated federal law and
4.suits brought against a state in another state’s court
OTHER LIMITS ON STATES V. FEDERAL GOVERNMENT
A state may not tax the federal government or its instrumentalities without the federal government’s consent, but it can tax the federal government indirectly, if the tax falls on someone doing business with the federal government. An indirect tax is valid as long as it is non-discriminatory.
PRIVILEGES AND IMMUNITIES CLAUSE
Under the privileges and immunities clause, the citizen of each state shall be entitled to the privileges and immunities of the several states. Privileges and rights are rights that are fundamental to interstate comity.
RIGHTS FUNDAMENTAL TO INTERSTATE COMITY UNDER THE P&I CLAUSE
Rights fundamental under the privileges and immunities clause include the right to 1) travel 2) earn a living 3) to obtain state benefits or commercial (but not recreational) licenses
EXCEPTIONS TO THE P&I CLAUSE
The privileges and immunities clause does not bar discrimination against non-residents if 1) there is a substantial reason for the difference in treatment and 2) the discrimination has a substantial relationship to the state’s objective. This has only been found if the outsiders are the source of the evil that the law is designed to prevent.
STATE ACTION
The Constitution is only intended to regulate state action. However, a private citizen may be a state actor under 1) the public function doctrine or 2) the entanglement doctrine.
STATE ACTION
Public function doctrine
A private entity must comply with the Constitution if it is performing a task that has been
1. traditionally and
2. exclusively performed by the federal government.
CONTRACTS CLAUSE
The contracts clause says that no state shall pass a law impairing the obligations of contracts. This applies only to the state government, not the feds, and only to existing contracts.
CONTRACTS
Test for impairment of a private contract
To determine if the contracts clause is violated in a case involving private parties the court will consider whether the law
1. substantially impairs an existing contract
2. if so, does it serve a significant and legitimate public purpose and
3. if so, is it reasonably related to that goal and 4) is it in the public interest.The greater the impairment, the more significant the state interest must be. RIPIN (Reasonable Impairment Public Interest Necessary)
CONTRACTS CLAUSE
Test for impairment of a public contract
Under U.S. Trust, the test is
1. whether the law impairs a public contract and,
2. if so, is the law reasonable and necessary to further an important public purpose. Laws impairing the government’s obligations under its own contracts will subject to stricter review than those interfereing with private contracts.
PRESIDENTIAL POWERS
The president has the executive power, and he has the exclusive power in foreign affairs to 2) recognize and withdraw recognition of foreign governments 2) receive ambassadors 3) act on the nation’s behalf in day-to-day dealings with foreign governments
COMMANDER IN CHIEF
The president can 1) commit armed foreces in the event of a sudden attack on the country or an insurrection (even before Congress declares war 2) exercise legislative powers in theaters of war, such during military occupations in foreign countries and 3) control the placement of armed forces
APPOINTMENT POWERS
The president can appoint judges and other principal officers on the advice and consent of the Senate (majority vote). Principal officers cannot be appointed by the Senate nor can their appointment be delegated to a lower official.
PRINCIPAL OFFICER
A principal officer is one who
1. makes policy and
2. exercises significant authority pursuant to the laws of the United States
INFERIOR OFFICERS
Inferior officers are those whose work is directed and supervised by others who were appointed by the president with Senate consent. Factors in deciding between principal and inferior officers include
1.the nature and extent of the officer’s duties and whether it includes making policy
2. the amount of independence and source of supervision
3. whether it is a permanent or temporary provision and the circumstances under which the officer can be removed
TREATIES
A treaty is valid if
1. the Senate ratifies it by two-thirds margin
2. it deals with matters properly subject to negotiation with a foreign country and
3. it does not violate any constitutional guarantees. The president may continue or end a treaty without Senate consent.
EXECUTIVE AGREEMENTS
The president may enter into executive agreements concerning routine matters of foreign policy without Senate approval. But such agreements are only supreme over state law, and valid federal statutes passed later can override them.
EXECUTIVE PRIVILEGE
The source of executive privilege is the doctrine of the separation of powers and the inherent need to protect the confidentiality of executive communications. It is a qualified privilege and must yield if necessary to need to develop facts for a criminal trial.
LEGAL LIABILITY OF THE PRESIDENT
The president has absolute immunity from civil liability for his official acts, including the outer perimeter of his authority under the Constitution, but not for acts committed before he took office.
LEGAL LIABILITY OF PRESIDENTIAL AIDES
Presidential aides have qualified immunity and can be subject to civil damages if they violate statutory or constitutional rights. They may have absolute immunity in sensitive areas such as foreign affairs.
IMPEACHMENT
The president can be removed from office for treason, bribery or other high crimes and misdemeanors. The House brings a Bill of Impeachment, and the Senate conducts the trial.
PARDON POWER
The president may pardon individuals for criminal offenses against the United States except in cases of impeachment. This does not include civil contempt and has no affect state criminal liability.
JUDICIAL POWER
Under Article III, the judicial power of the United States is vested in one Supreme Court and in such inferior courts and Congress may from time to time ordain.
SUPREME COURT
Original jurisdiction
The Supreme Court has original jurisdiction in all cases involving ambassadors and other public ministers and in cases in which a state is a party. Original jurisdiction cannot be enlarged or restricted by Congress, but lower federal courts be granted concurrent jurisdiction.
SUPREME COURT
Appellate jurisdiction
Supreme Court must hear
1. appeals of three-judge federal panels in regard to injunctions under federal statute
2. cases certified by a Court of Appeal
3. and it may grant certoriari to hear any appeal from a federal appeals court or a case from a state court if there are constitutional or federal issues involved.
JURISDICTION OF ARTICLE III (FEDERAL) COURTS
The federal courts also hear cases involving
1. a state and citizens of another state
2.cases in which the United States is a party (United States must consent to being sued, usually under a federal statute
3. between two or more states 4. between a state and its citizens and foreign country or its subjects and
5. between citizens of different states in which the amount in controversy is $75,000 or more (diversity jurisdiction)
CONGRESSIONAL POWER
Exceptions and regulations clause
Under the exceptions and regulations clause, Congress has the power to change federal appellate jurisdiction if
1. change is made in a neutral manner
2. without intent to decide the merits of a case through a change in jurisdiction. Congress can regulation and limit, but not eliminate, the Supreme Court’s appellate jurisdiction.
JUSTICIABILITY
Justiciability refers to a group of doctrines that determine if it is constitutional for a case to be heard in federal court. Under Article III, there must be 1. a case or controversy
2. a definite and concrete matter
3. that concerns the parties' adverse legal interests and
4. involves a real and substantial controversy capable of specific relief (CREDIT: Controversy, Relief possible, Definite, Interests Touching)
STANDING
Advisory opinions
The Supreme Court will not pass on the constitutionality of legislation in a non-adversary proceeding or a hypothetical situation. It violates the controversy requirement.
STANDING
Elements
Standing requires an injury in fact, causation and redressibility.
STANDING
Injury in fact
The party must show an injury in fact but it could be economic or non-economic, such as such that impacts on quality of life.
STANDING
Third party
In a few cases, one party may assert the rights of another if the third party
1, has an injury in fact
2, there is a close relationship between the person who is asserting the other party’s rights and
3.if the person whose rights are being asserted may not have the ability to do so (doctor/patient, minors)
STANDING
Association
An association has standing if
1. a members would have standing and
2. purpose of the association is related ot the injury the member would have
STANDING
Federal taxpayer
A federal taxpayer does not have standing to sue over a government action because the taxpayer has only generalized grievances.
TAXPAYER STANDING
Flast v. Cohen exception
Under Flast v. Cohen, a taxpayer has standing to challenge an enactment if
1. it was made under Congress’ tax and spending power and
2. it violates a specific constitutional limitation upon the exercise of the tax and spending clause (and so far this has only been found to be the First Amendment’s Establishment clause).
STANDING
Other taxpayers
A state taxpayer may have standing to litigate if the state spends a non-trivial amount of money and the suit is not otherwise barred by the 11th Amendment.
municipal taxpayer has standing to sue for improper expenditures of the town’s dollars because they are deemed to be directly injured.
STANDING
Ripeness
The court will not anticipate an issue of constitutional law; there must be some harm or imminent threat of harm.
STANDING
Mootness and its exceptions
A case is moot if it was resolved after it was filed.
Exceptions are
1. an injury that is capable of repetition but evading review
2. if the defendant has voluntarily ceased the wrongful conduct, it is not not moot unless there is NO way the conduct could require
3. if there are collateral consequences to the challenged conduct (even if a prisoner has served his time, the case can be heard) and 4) a class action lawsuit is not moot even if the case of the named plaintiff has been resolved
STANDING
Political question
The court may deny to hear a "political question" if
1. Constitutional provision designates the subject matter for another branch of government
2. hard to discern manageable judicial standards
3. need for an initial non-judicial policy determination
4. taking case would show lack of respect to other branches of government
5. an unusual need for an adherence to a political decision already made and
6. potential of embarrassment from multiple pronouncements by various departments
SUBSTANTIVE DUE PROCESS
The Fifth and 14th Amendments guarantee due process of law. Substantive due process requires that if a fundamental right is infringed, the government must justify it under the strict scrutiny standard.
STANDARDS OF REVIEW
Strict scrutiny
Government must show the law is narrowly tailored to further a compelling government interest
STANDARDS OF REVIEW
Intermediate scrutiny
Government must show law is substantially related to a significant government interest.
STANDARDS OF REVIEW
Rational basis
The burden is on the plaintiff to show that the law is not rationally related to a legitimate state interest.
FUNDAMENTAL RIGHTS
Definition
Fundamental rights are those rooted in our nation's history and implicit in the concept of ordered liberty.
FUNDAMENTAL RIGHTS
What rights are included
Fundamental rights are:
1. First Amendment rights
2. Criminal protection rights
3. Privacy rights
4. Right to vote
PRIVACY RIGHTS
Privacy rights are not spelled out in the Constitution but have been held to include:
1. Contraception
2. Abortion
3. Marriage
4. Procreation
5. Education of one's own child
5. Relations between family members
FIRST AMENDMENT
The First Amendment, incorporated to the states through the 14th Amendment, prohibits the governmetnt from
1. establishing or infringing upon free exercise of religion
2. abridging the freedom of speech, the press or express
3. restraining freedom of assembly and petition. The court has held this also encompasses freedom of association and travel.
STANDING
Adequate state grounds
The Supreme Court will decline to hear a case that was decided on adequate and independent state grounds unless:
1. state actually decided the case on federal grounds
2. the state law incorporated a federal standard or
3. it was ambiguous what grounds were used
FREE SPEECH
Prior restraint
Prior restraint refers to administrative or judicial action forbidding certain communications when issued in advance of such time as the communications are scheduled to occur. it is one of the chief evils that the First Amendment guarantee of free speech and free press is aimed at preventing, but even that right is not absolute, and might be limited in exceptional cases, such as a time of war.
EQUAL PROTECTION
Determining discrimination
The purpose of the law must be discrimination (de jure discrimination). A discriminatory effect is not enough to succeed in an equal protection challenge.
FREEDOM OF ASSOCIATION
When discrimination is permitted
If membership is select and compelling a broader membership would undermine the purpose of the group, then the right of association would prevail.
FREEDOM OF ASSOCIATION
Government speech doctrine
In general, persons can't be compelled to speak by having to join in a group message with which they disagree, but under the government speech doctrine, government speech is exempt from the First Amendment bar against extracting subsidies from those unwilling to underwrite an objectionable message.
FEDERAL COURT JURISDICTION
Abstention
A federal court can, as a matter of discretion, refrain from adjudicating a case involving an unresolved matter of state law. The court will also abstain from enjoining enforcement or declaring unconstitutional a state statute if there is a pending criminal prosecution under that statute.