Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

51 Cards in this Set

  • Front
  • Back

a. Federal courts can only hear case or controversy
has to be a case or controversy

Must suffer an injury that is traceable to the defendants conduct and redressable by the court.
i. Injury
ii. Traceable
iii. Redressable
have to have standing

STanding Individual

i. Three Elements:
1. Must prove that the claimant has standing.
2. Either a special relationship (vested interest on what is going on with this person) with the third party or the third party must have difficulty asserting her own rights.

Thrid Party

i. Members must have standing. So the individual members must have to have suffered a direct injury.
ii. The interest asserted has to be germane to the organizations purpose.
iii. Claims must be of the kind that wouldn’t require individual participation by the numbers


i. If cases are being brought to early. If you say that the injury is imminent or subject to this act and violated, if you can’t point to an injury that has already happened then we have to talk about ripeness.

i. Cases being brought to late. The issue has already resolved itself. These are the abortion cases. When it is capable of repetition yet abating review, the court will let your bring it even though it appears to be moot.
11th amendment bar to suits:

a. Cannot bring a lawsuit against a state government or state government officer, but not local cities or municipalities.
11th amendment bar to suit
11th amendment bar to suit:

i. Cannot bring lawsuits for any action damages,
ii. any action for injunctive or declaratory relief,
iii. Any action where the effect is that the retro active damages will be paid from the state treasury or state land will be taken away.
iv. Also actions against state government officers for violating state law.
Cannot bring a suit for
11th amendment bar to suit:

i. Actions to enjoin state officers from future conduct that violates constitution or other federal law. Even if it requires perspective payment from the state.
ii. Actions against an officer personally
iii. When the State consents. Consent has to be expressed or unequivocal.
iv. If Congress removes this immunity as to actions under the 14th amendment as long as congress is clear and unmistakable.
Not Barred
State Action:

private person performing a public function. State actor in state action).
state action
Source Of Power:

I. Are they testing me on what power congress or the state has to enact what they are doing.
source of power
source of power:

a. Congress cannot impose a tax on only states.
b. Cannot command state officers to force them to do your bidding.
for states are we supose to talk about 10th amendment power
source of power:

a. Congress has the exclusive power to regulate foreign and interstate commerce.
Congress is it's the Commerce Power
Source of Power:

1. Channels (roads and highways)
2. Instrumentalities of Interstate Commerce (person and things in interstate commerce)
3. The activities that have a substantial effect on interstate commerce.
Interstate Commerce
Source of Power:

1. Determine whether it is an economic or non economic activity.
a. Economic activity (congress has to show that there is a rational basis that in the aggregate the activity substantially effects interstate commerce).
b. Non Economic: Have to factually show a substantial economic effect on interstate commerce.
Intrastate Commerce
Limits on that power:

1. The supremacy clause mandates that federal law overrides state regulation.
State preemption
Limits on that Power:

Where a federal statute expressly states that it preempts state activities.
expressed preemption
Limits on that Power:

comes up in two ways. 1. Federal and state statute that is directly in conflict, meaning that we can’t comply with both at the same time. The state law undercuts the goals of the federal statute. 2. Where we have federal occupation of the field.
implied preemptoin
Limits on that Power:

1. A state cannot regulate interstate commerce if it is unduly discriminatory, or unduly burdensome. Have to balance the burden on interstate commerce with the benefit of the state. Where states are discriminating against out of state products.
2. Unless, it is necessary to achieve a compelling health or safety goal and there is no less restrictive alternative.
Dormant Commerce Clause
Limits on that Power:

1. State governments cannot make laws that interfere with existing contract rights, unless the law is reasonably related to an important governmental interest.
Contracts Clause
Limits on Power:

i. State cannot punish someone on the basis of there religious beliefs unless you have a compelling interest.
ii. Can regulate conduct so long as it is a law of general application that only incidentally burdens religion.
iii. (SIDENOTE, don’t need to know for this class) Court does not never questions the validity of the belief just thee persons sincerity.
First Amendment: Religion

Free Exercise Clause
Limits on that power:

i. Prohibits laws respecting the establishment of the religions. Plain language: a law cannot favor or burden religion or a specific religious group.
ii. Analyze the regulation
1. Is there a sect preference.
2. No sect preference the, then valid if 1. Secular purpose, 2. Primary effect neither advances nor inhibits religion, 3. It does not promote excessive government entanglement with religion.
First Amendment: Religion

Establishment Clause
Limts on power:

a. (Start with this!)Whether the regulation is content based on content neutral. (sometimes it is both, so analyze both)
first amendment speech
limits on power:

content based regulations are presumptively unconstitutional and is subject to strict scrutiny. With strict scrutiny the burden of proof is on the government.
first amendment:

limits on speech:

show that it is narrowly tailored to achieve a compelling governmental interest and that is the least restrictive means.
first amendment:

limits on that power:

2. Violent speech are unprotected speech, violent speech and obscenity. We say that there is a governmental interest in disseminating these two types of speech.
speech violent speech
limits on that power:

speech is obscene if it describes or depicts sexual conduct that taken as a whole by the average person appeals to the prurient interest by the community standard, potentially offensive, within that community, lacks serious LAPS value under the national reasonable person standard.
first amendment:

obscenity speech
limits on that power:

Commercial speech that proposes an unlawful activity or is misleading or fraudulent is also entitled to that same low level of protection.
first amendment: speech

commercial speech
first amendment:

5. If it is not then the regulation must serve a substantial government interest, directly advance that interest, and narrowly tailored to serve that interest.
first amendment: speech
limits on power:

Regulating both substance and time place and manner where it happens. Time, place, manner restriction then explain why. Do I have a public form, limited public forum, or non public forum?
content nuetral
limits on power:

Historically open to speech related activities, that has not been historically open but there has been a practice or policy to open it on a permanent or limited basis.
content nuetral: public forum
limits on power:

limits time place and manner so long as the regulations are one content neutral, two narrowly tailored to serve a significant or important government interest, and three leave open alternative channels of communication.
content neutral: limited public forum
limits on power:

: a regulation must be 1. Viewpoint neutral, and 2. Reasonably related to a legitimate government purpose.
content nuetral: non public forum
limits on power:

fail to give reasonable notice. A person ordinary intelligence would have to guess.
first amendment:

reasonableness issue: Vague
limits on power:

1. Overbroad if it punishes a substantial amount of protected speech.
reasonableness issue:

limits on powre:

1. Have to have defined standards in your regulation and if you have unfettered discretion it is void on its face. (Don’t have to follow it).
reasonableness issue:

regulation fives unfettered discretion
limits on power:

i. Rule: a regulation that prevents speech before it occurs rather then punishing it after it happens.
prior restraints
limits on power:

ii. They are rarely allowed, so in order to have a prior restraint the government must show,
1. 1. that there is some special societal harm (safeguards: has to be narrowly drawn, reasonable, and definite),
2. 2 an injunction must be promptly sought, and
3. 3. There must be a prompt and final determination of the validity of the restraint.
prior restraints
limits on power:

i. Want to define it and it is the freedom not to speak, and the freedom to communicate the idea with a symbol. The government may regulate symbolic speech if:
1. Within the constitutional power (police power)
2. Serves an important governmental interest
3. The regulation occurs independent of the speech aspect.
4. The burden on speech is no greater then necessary.
symbolic speech
due process:
i. All persons are entitled to fair process before you can take there life liberty or property.
procedural due process
due process:

1. Fair Process: They are entitled to an unbiased decision maker, notice and a chance to respond.
fair process
due process:

2. Second Part Interest: Here have to prove that there was a deprivation of one of those interest.
a. Liberty: Limiting freedom to act.
b. Property Interest: personal belonging, entitlements (licenses and right to attend public school).
i. For Fairness need to Prove: The importance of the interest to the individual, the value of having procedural safeguards for that interest v. the governments interest in fiscal and administrative efficiency.
second part interest
due process:

i. Arises when the law applies to everyone. Where we have a law that limits a fundamental right.
1. Voting
2. Travel
3. Privacy
4. First Amendment Rights
ii. Where a law limits a fundamental right must pass strict scrutiny.
iii. Any other law has to pass rational basis test – rationally related to any conceivable, legitimate end of government.
substantive due process
equal protection:

a. Similarly situated people being treated differently. .
b. Series of Questions we need to ask ourselves:
i. Who is it that is being treated differently?
ii. Why or on what basis are they being treated differently?
equal protection
equal protection:

1. Suspect Class or Fundamental Right: Strict Scrutiny
2. Illegitimacy or Gender: Intermediate Scrutiny
3. Anything Else: Rationale Basis.
a. Strict Scrutiny: necessary to achieve compelling government purpose with least restrictive means
b. Intermediate Scrutiny: necessary to achieve substantially related government purpose with important means.
c. Rational Basis: Rationally related to a legitimate government purpose.
pick your test
equal protection:

iv. Need to show discriminatory intent for strict and intermediate scrutiny in one of three ways:
1. Discriminatory on its face
2. In its application (purposely applying it to one class of person)
3. Show discriminatory motive.
equal proteciton

a. General Rule: the 5th amendment provides that private property may not be taken for public use without just compensation. It includes actions that damage property.

1. There will be public use if the reason for taking it is rationally related to a legitimate public purpose.
is it for public use

1. Yes, it is a taking if, there is a physical invasion of the property except if it is an emergency situation. Or if it denies ALL economic value or use.
is it a taking or just a regulation

2. Maybe (1), if it is a temporary denial of all economic use. Court will analyze: 1. the length of the delay, 2. the city planner’s good faith, 3. the actual economic effect, and 4. the owner’s reasonable expectations regarding the property. Look at these factors to determine whether fairness and justice require compensation.
is it a taking or just a regulatoin

3. Maybe (2), regulation decreases the value of property and does not leave an economical viable use. The court is going to look to three things: 1. social goals the government is seeking to promote, 2. the diminution in value to the owner, 3. the owners reasonable expectations regarding the property,
is it a taking or just a regulation