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29 Cards in this Set
- Front
- Back
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Definition: Contracts Clause
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limits the STATES’ ability to substantially impair existing contract rights. Does not apply to Fed’l Gov’t
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Definition: Equal Protection Clause
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prohibits the government from treating similarly situated people differently w/o sufficient justification.
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Definition: Due Process Clause
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a party is entitled to notice and an opportunity to be heard b/f being deprived of liberty or property
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Definition: Contracts Clause
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limits the STATES’ ability to substantially impair existing contract rights. Does not apply to Fed’l Gov’t
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Definition: Equal Protection Clause
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prohibits the government from treating similarly situated people differently w/o sufficient justification.
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What theory if treated differently than others similarly situated?
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Equal Protection
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Definition: Due Process Clause
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a party is entitled to notice and an opportunity to be heard b/f being deprived of liberty or property
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Due Process Clause
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criminal law or regulation must give persons reasonable notice of what is prohibited or it violated DP Clause.
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What tips off a DP Question
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liberty or property interest
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Definition: Privileges & Immunities Clause of Art.IV
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Protects against discrimination BY A STATE in favor of its own citizens when it affects a fundamental right.
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State Classification of Aliens
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state classifications of aliens are “suspect” and subject to Strict Scrutiny. Exception: a state may require citizenship for important state jobs that directly affect the political process, provided state has rational basis for discrimination.
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What is subject to Strict Scrutiny and who has the burden?
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Fundamental rights and burden on the Gov’t
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Fundamental Privacy Rights
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CAMPER: Contraception, Abortion, Marriage, Medical Treatment Refusal, Procreation, Porn, Education, Related persons living together.
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What is subject to Intermediate Scrutiny?
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Gender, Commercial Speech, Content Neutral Speech and burden is on the Gov’t.
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What is subject to Rational Basis Scrutiny?
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Everything else and burden is on the plaintiff.
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When can the Gov’t regulate speech?
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if the restriction is content neutral and a valid Time, Place, and Manner. The Gov’t may regulate the conduct associated with speech if the regulation: (i) is content neutral, (ii) is narrowly tailored to serve an important Gov’t interest, and (iii) leaves open alternative channels of communication.
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When will Gov’t regulation of commercial speech be struck down?
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if the speech involves a lawful activity and is not misleading, unless the regulation serves a substantial government interest, it directly advances that interest, and it is narrowly tailored to achieving that interest.
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Establishment Clause – Three Part Test
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the program must (i) have a secular purpose, (ii) have a primary effect that neither advances nor inhibits religion, and (iii) not produce excessive government entanglement with religion.
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Who is NOT covered by the Privileges and Immunities Clause?
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Corporations and Aliens - are NOT considered citizens for purposes of the P&I clause
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What kind of discrimination does the Privileges and Immunities Clause prohibit?
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Fundamental Rights - those involving important COMMERCIAL ACTIVITIES (such as pursuit of livelihood) or CIVIL LIBERTIES
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Who can regulate Interstate Commerce?
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GR: Congress has the power to regulate I.C.
Exception: State/Local gov't may regulate if congress has not enacted laws regarding the subject and... (i) the regulation does not discriminate against out-of-state competition and (ii) the regulation is not unduly burdensome ((Known as the Dormant Commerce clause)) |
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State Regulations that discriminate against interstate commerce are almost always invalid. When are they OK?
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(i) if it furthers an important, noneconomic state interest (health or safety) and there are no reasonable alternatives
(ii) State as a Market Participant |
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Bar Exam approach for State Regulation that affects the free flow of Interstate Commerce.
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FIRST, see if the question refers to ANY FEDERAL LEGISLATION that might be held to: (i) SUPERSEDE the state regulation or PREEMPT the field, or (ii) AUTHORIZE state regulation otherwise impermissible
SECOND, if no, thendoes the state legislation either DISCRIMINATE against interstate or out-of-state commerce or places an UNDUE BURDEN on the free-flow of I.C. If discriminatory, then invalid...unless (i) furthers in important state interest AND no reasonable nondiscrim alternatives, or (ii) state is a market participant. |
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Substantive Due Process - Fundamental Rights subject to SS
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1) Right to Travel
2) Privacy 3) Voting 4) All 1st Amendment Rights |
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What is the Source of Substantive Due Process?
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5th Amendment - Fed'l Gov't
14th Amendment - State Gov't |
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Equal Protection - Suspect Classifications subject to SS
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1) Race/Nat'l Origin
2) Alienage (invalid if arbitrary and unreasonable) |
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Equal Protection - Quasi Suspect classification subject to Intermediate Scrutiny
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1) Gender
2) Legitimacy |
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Fundmental Rights - subject to SS under SDP or EP. to be valid the gov't action must be NECESSARY to protect a COMPELLING INTEREST.
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1) PRIVACY - contraceptives, abortion, marriage, porn, extended family together, rights of parents, sexual conduct (C.A.M.P.E.R.S.)
2) VOTE 3) TRAVEL 4) REFUSE MEDICAL TREATMENT |
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1ST AMENDMENT FREEDOMS
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1) Freedom of Speech & Assembly
2) Freedom of Association & Belief 3) Freedom of Religion |
