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101 Cards in this Set
- Front
- Back
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Standing
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P must prove actual or imminent injury. P must allege/prove that D caused injury so that a favrorable court decision is likely to rememdy it.
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Exceptions to Third Party Standing
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(1) close relationship; (2) unlikely to be able to assert own rights; (3) organization standing
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Mootness
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If events after filing suit ends the injury.
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Exceptions to Mootness
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(1) wrong capable of repetition by avoiding review; (2) voluntary cessation; (3) class actions
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Ripeness
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Whether a federal court may grant pre enforcement review. Look at: (1) hardship to be suffered; (2) fitness of issues/record for review.
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Political Question Doctrine
(4 things) |
constitutional violations that fed cts won't hear: (1) "repubican form of gov't"; (2) foreign policy; (3) impeachment/removal; (4) partisan gerrymandering
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When may SCOTUS not review a case? (2 reasons)
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(1) When there's an indpendent state law ground of decision; (2) when state decision rests on st AND fed grounds, reversal of a federal ground won't change the result (b/c of the state law ground)
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May a lower federal court hear suits against state governments?
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No. Sovereign immunity.
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When CAN states be sued? (Sovereign immunity exceptions.)
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(1) explicit waiver; (2) laws adopted made by s 5 of 14th Amt'; (3) federal gov't CAN sue state gov't.
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Is there a general federal police power? What are the exceptions?
(HINT: MILD) |
No. Exceptions (MILD): (1) military; (2) Indian res; (3) land and territories; (4) Dist of Col.
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When is the "general welfare" applicable?
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Only in taxing/spending situations: Congress may tax and spend for the general welfare.
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What may congress regulate under the commerce clause?
(3 things) |
(1) channels of CATSS (h'ways, waterways); (2) instrumentalities of CATSS and people in it (trucks, planes); (3) econ activities that affects CATSS
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What's up with all that Morrison crap?
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If a non-econ activity is implicated, its substantial effect can't be aggregated/based on cumulative impact.
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How about putting strings on federal grant programs? Like giving states money for roads if they raise the drinking age to 21?
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Ok as long as conditions are expressly stated and related to the purpose of the spending program.
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Can Congress create new rights or expand the scope of existing ones?
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No. Can only prevent/remedy violations and laws that are PROPORTIONATE and CONGRUENT to fixing the violation.
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What's the deal with legislative vetos and line item vetos?
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Unconstitutional. Can't bypass bicameralism and presentement to the president.
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What powers does Congress have the power to delegate? Is there a limit?
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No limit on designating lesislative powers.
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Let's talk about treaties. What happens when they conflict with state laws? Federal statute? The Constitution?
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Treaties: (1) Trump state law; (2) last in time controls in conflict with federal statute; (3) give way to the Constitution
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Don't you love executive agreements? I do!
(1) Do they require Senate approval? (2) What about conflicts of law? |
(1) no senate approval
(2) prevail over state law, but NEVER over fed law OR Constitution |
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Can the President use American troops in foreign countries?
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Are you kidding? Where have you been? Read the news lately? Of course he can!
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Who may the President appoint?
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ambassasadors, federal judges, US officers - senate must approve nominations
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Does Congress get to appoint anyone? Or are they merely pawns who act at the behest of the President?
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Inferior officers (those that can be fired by a US officers.
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How about new agencies? Can Congress give itself appointment powers?
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No. Can't appoint members, and can't delevated executve/appointment powers to itself.
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Removal power. Who gets it?
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Unless ficed by statute, President may fire any executive officer.
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CAN Congress limit the President's removal power by statute? When? Hows?
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Must be where an officer's independence from the President is desireable; can't prohibit removal, but can limit it to good cause shown.
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For what reasons can President, VP, judges, or officers be impeached? Does that get 'em out?
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treason, bribery, high crimes and misdemeanors
impeachment doesn't remove; impachment in House (maj), conviction in Senate (2/3) |
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Presidential immunity.
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absolute immunity to civil suits for any actions while in office; HOWEVER, no immunity for actions prior to office (e.g., Clinton v. Jones)
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Executive privilege? Does the President ever have to disclose stuff?
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for papers and conversations, but must yield to other important gov't interests (when there is an overriding need for info)
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Express Preemption
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if a statute says federal law is exclusive in a field, state/local law is preempted
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Implied Preemption
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federal law trumps when: federal and state law are mutually exclusive; state law impedes fed objective; Congress shows clear intent to preempt state law, even if the statute itself is silent
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Intergovernmental immunity.
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States may not tax or regulate fed gov't activity. (Ex: can't pay tax out of federal treasury.)
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Dormant commerce clause (negative implications of the commerce clause)
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state/local law unconstitutional if they place an undue burden on CATSS.
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Privileges and Immunities Clause of Article IV
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No state may deny citizens of other states of privileges and immunities it accords its own citizens. (Anti-discrim provision.)
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Privileges or Immunities Clause of the 14th Am't
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must implicate the fundamental right to travel for this to apply
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How do we determine if a law violates the commerce clause?
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balance the burdens against the benefits (ex: in the mud guard case, the burden didn't exceed the benefit)
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If a law discriminates against out-of-staters, how can it pass constitutional muster under the dormant commerce clause?
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It must be necessary to achieve an important gov't interest
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Market Participate Exception (to the dormant commerce clause)
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state/locality may prefer its own citizens in receiving benefits from gov't programs or dealing with gov't owned businesses (ex: in-state tuition)
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What are the 4 differences between the commerce clause and the privileges and immunities clause of Art IV?
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(1) DCC doesn't require discrimination, PAI does; (2) DCC requires burden on CATSS, PAI requires discrim re: civil/ecnom liberties; (3) DCC corporations/alients can sue, PAI they can't; (4) exceptions (congressional approval, mkt part), PAI no exceptions.
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May states tax to help in-state business?
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No.
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May state tax interstate activities?
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Only if the activities provide a substantial nexus to the state; interstate must be fairly apportioned.
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What are the three requirements for courts in one state to give full faith and credit to courts of another state?
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(1) jurisdiction of parties/subject; (2) judgment was on the merits; (3) judgment was final
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May Congress by statute apply constitutional norms to private activity? In what way?
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13th Am't to prohibit laws against pvt discrim; commerce power (ex: Heart of Atlanta, Katzenback)
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Public Function Exception (regarding regulation of private stuff)
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If a private entity is performing a task traditionally/exclusively performed by gov't, Congress can regulate
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The Entanglement Exception (regarding regulation of private stuff)
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applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity (determining state action)
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Which amendments are NOT incoprorated into the BOR?
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2d right to bear arms; 3d right re: soldiers; 5th right to GJ in crim cases; 7th right to jury in civil cases; 8th right against excessive fines (rest of this am't IS incorporated)
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What is liberty for purposes of DP analysis?
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loss of significant freedom protected by the Constitution (harm to reputation NOT loss of liberty)
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What is property for purposes of DP analysis?
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entitlement that is not fulfilled; reasonable expectation of continued receipt of a benefit
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What is the three-part balancing test to determine the procedures required under DP?
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(1) important of interest to the person
(2) ability of additional procedures to increase accuracy of fact finding (3) gov't interest |
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Takings Clause
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gov't may take private property for public use of it provides just compensation
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Possessory Taking
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gov't confinscation by physical occupation
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Regulatory Taking
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b/c or a regulation, there is no economically vibale use of property (mere decrease in value is NOT a taking)
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What constitutues "just compensation"?
Is the gain to the gov't a factor to consider? |
Fair market value.
No. |
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What constitutes "public use"?
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Anything, so long as gov't acts out of reasonable belief it will benefit the public.
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Contracts Clause
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No state shall impair obligations on contracts.
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What is the standard for private contracts?
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Intermediate scrutiny, sort of.
Test: (1) Does the legilsation subtantially impar party's rights under existing K? (2) If so, does the law reasonably and narrowly tailor means of promoting important and legit gov't interest? |
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Privacy is a fundamental right for purposes of SDP. What does this include?
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marriage
procreation custody of kids keep families together contraceptives abortion (undue burden std) homsexuality refuse medical treatment (C&C ev to show persom wanted Tx before life ends) |
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What is the three-part approach to equal protection questions?
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(1) What is the classification?
(2) What level of scrutiny should be applied? (3) Does this law meet that level of scrutiny? |
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How should racial classifications of minorities be treated under EPC?
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strict strutiny
quotas need proof of past discrim may use race as a single factor seniority system not disrupted by AA |
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How should gender classifications be treated under EPC?
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intermediate
role stereotypes NOT allowed remedying past discim OK |
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How are alienage classifications greated under EPC?
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generally strict; intermediate for self-gov and dem process; rational for Congressional discrim against aliens
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How should discrimination against non-marital children be treated under EPC?
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intermediate; laws denying benefit to all non-marital kids, but granting to all marital kids is unconstitutional
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What types discrimination requires rational basis review?
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age
disability wealth econ regs sexual orientation (Romer v. Evans) |
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What are the fundamental rights protected under EPC?
(2) |
(1) travel - durational resident requirements require ss
(2) vote - one person/one vote; at-large ok unless discrim |
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Is there a fundamental right to an education?
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No.
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What is the standard for the regulation of content-based speech?
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strict
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What is the standard for the regulation of content-neutral laws burdening speech?
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intermediate
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What's the standard for court orders on prior restraint?
Must they be complied with? Can someone who violates them challenge later? |
(1) strict
(2) propert orders must be complied w/ until vacated/overturned (3) he who violates an order doesn't get to challenge it later |
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Vagueness (1st Am't)
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reasonable person can't tell which speech is probibited or allowed
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Overbreadth (1st Am't)
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regulates more speech than the Constitution allows
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Fighting Words
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vague and overbroad (though Chaplinsky still good, SCOTUS hasn't upheld a fighting words conviction)
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Can symbolic speech be regulated?
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Only if an important interest unrelated to suppression of a message and impack on communication is no greater than necessary to achieve a gov't purpose
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Is anonymous speech protected?
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Yuppers.
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What about incitement of illegal activity? Is that speech protected?
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Only if you're the president. Heh. But no, not really.
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Test for obscenity
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(1) prurient interest (local/community std)
(2) patently offensive under the law defining it (3) lack redeeming artistic, literary, political, scientific value (nat't std) |
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What sorts of commercial speech is not protected?
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Ads for illegal activity or false/deceptive ads.
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Intergovernmental immunity.
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States may not tax or regulate fed gov't activity. (Ex: can't pay tax out of federal treasury.)
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Dormant commerce clause (negative implications of the commerce clause)
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state/local law unconstitutional if they place an undue burden on CATSS.
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Privileges and Immunities Clause of Article IV
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No state may deny citizens of other states of privileges and immunities it accords its own citizens. (Anti-discrim provision.)
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Privileges or Immunities Clause of the 14th Am't
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must implicate the fundamental right to travel for this to apply
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How do we determine if a law violates the commerce clause?
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balance the burdens against the benefits (ex: in the mud guard case, the burden didn't exceed the benefit)
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If a law discriminates against out-of-staters, how can it pass constitutional muster under the dormant commerce clause?
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It must be necessary to achieve an important gov't interest
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Market Participate Exception (to the dormant commerce clause)
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state/locality may prefer its own citizens in receiving benefits from gov't programs or dealing with gov't owned businesses (ex: in-state tuition)
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What are the 4 differences between the commerce clause and the privileges and immunities clause of Art IV?
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(1) DCC doesn't require discrimination, PAI does; (2) DCC requires burden on CATSS, PAI requires discrim re: civil/ecnom liberties; (3) DCC corporations/alients can sue, PAI they can't; (4) exceptions (congressional approval, mkt part), PAI no exceptions.
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May states tax to help in-state business?
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No.
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May state tax interstate activities?
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Only if the activities provide a substantial nexus to the state; interstate must be fairly apportioned.
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What are the three requirements for courts in one state to give full faith and credit to courts of another state?
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(1) jurisdiction of parties/subject; (2) judgment was on the merits; (3) judgment was final
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May Congress by statute apply constitutional norms to private activity? In what way?
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13th Am't to prohibit laws against pvt discrim; commerce power (ex: Heart of Atlanta, Katzenback)
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Which amendments are NOT incoprorated into the BOR?
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2d right to bear arms; 3d right re: soldiers; 5th right to GJ in crim cases; 7th right to jury in civil cases; 8th right against excessive fines (rest of this am't IS incorporated)
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Is government negligence enough for a deprivation of liberty or property?
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Must show that it was intentional or reckless; in emergency cases, only if it "shocks the conscience."
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Is profane and indecent speech protected?
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Yes, except for when it's on the broadcast media or at schools
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What is the required showing for defamation of a private individual when the matter is of public concern
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falsity + negligence, BUT falsity + actual malice to get punitive damages
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What is the required showing for defamation of a private individual?
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falsity + negligence will get ya punitive damages, too
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What about the media? Can they get into trouble for truthful reporting?
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No, so long as they didn't participate in any illegality; illegally gotten stuff ok to report on, so long as THEY didn't do the wrong.
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May the gov't regulate speech in public forums?
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ss required
regs needn't be least restrictive, and must leave open alternative places for speech |
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Can the gov't close speech in non-public forums?
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No, but can regulate as long and reasonable and viewpoint neutral.
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What are the five non-public forums?
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military bases
areas outside prisons/jails ad space on public buses sidewalks on post office property airports (literature ok, soliciting funding not ok) |
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In order to meet the strict scrutiny to punish someone for membership in a group, what three things must be demonstrated?
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(1) affiliated w/ the group
(2) knowing of illegal activities (3) specific intent to further those activities |
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Can the gov't require disclosure of group membership?
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Not if it would chill assocation (NAACP)
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Are laws prohibiting discrimination in private groups ok?
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Yes, UNLESS they interfere with intimate association or expressive activity (BSA had anti-gay message, so discrim there was ok)
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Can the free exercise clause be used to challenge a neutral law of general applicability?
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no (peyote case)
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What is the test for finding a law constitutional under the establishment clause?
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SEX
secular purpose for the law effect must be to neither advance nor inhibit religion no excessive entanglement with religion |
