Nc Bar Constitutional Law

Front 1

When does a Plaintiff have standing?

Back 1

When P has a direct and substantial interest in the outcome.

Front 2

When does the Doctrine of Ripeness prevent adjudication?

Back 2

1. when there has been no attempt to enforce a statute nor any immediate threat that a gov agency will do so.

Exception: when the statute unduly chills free speech the threat need not be as immediate. When the size of the fine or punishment is so great that the P could not fairly be expected to violate the statute and then seek to have it declared unconstitutional.

Front 3

When will federal court generally abstain from ruling on the constitutionality of a state statute?

Back 3

Doctrine of Abstention is discretionary and is often used where the state court has not been given an opportunity to interpret a statute in a manner that would cure potential constitutional infirmities. EXCEPTION: Abstention under Younger v Harris prohibits fed court from enjoingin gstat criminal proceedings. Restriction not applicable when no state action is underway and the action is seeking declaratory relief.

Front 4

Exception to the 11th Amendment prohibition of a citizen suing a state agency in federal court?

Back 4

When a P is seeking to have the federal court issue an injunction or declaratory relief from the state official enforcing a statute P claims in unconstitutional.

Front 5

What amendment of the US Con protects free speech? How is this applied to the states?

Back 5

The First Amendment protects restriction based on content of all speech except for class of unprotected speech (fighting words, obscenity, some level of restriction on commercial speech).

The 1st Amendment is applied to the states via the Due Process Clause of the Fourteenth Amendment.

Front 6

What is the test of "obscenity"?

Back 6

The average person, applying contemporary community standards, find that the works taken as a whole (a) appeal to the prurient interest (b) depict or specifically describe sexual activity in a patently offensive way and (c) lack any serious literary artistic political or scientific value.

Child pornography is unprotected speech - with no need to apply the above test.

Front 7

For content based regulations what standard of review is applied?

Back 7

Strict Scrutiny - a compelling state interest with the least restrictive means to meet that interest.

Front 8

Content Neutral Regulation - Standard of Scrutiny?

Back 8

Must be rationally related to a legitimate government interest. Time, place, and manner restrictions are generally valid.

Front 9

Are prior restraints valid?

Back 9

there is a presumption that prior restraints are invalid. goverment interest must be sufficient to override the presumption - immediate national security threat etc.

Front 10

What makes a regulation invalid under the commerce clause?

Back 10

When regulations discriminate against interstate commerce or place and undue burden on commerce across state lines.

Front 11

When is it likely that congress has preempted a field of regulation?

Back 11

When a matter is heavily regulated and the fed regulation is sufficiently broad as to support the intent to preempt the entire field under the Supremacy Clause.

Front 12

What are the requirements of Due Process under the Fourteenth Amendment for a taking?

Back 12

a hearing (proper notice and opportunity to be heard); and

just compensation

Front 13

What is the standard of review for economic regulation generally?

Back 13

Rationally related to a legitimate government interest

Front 14

What constitutional problem arises when different groups are treated differently under the law?

Back 14

The Equal Protection Clause of the Fourteenth Amendment. The type of group will determine level of scrutiny to be applied.

Front 15

When will a regulation fail constitutional analysis under Substantive Due Process attack?

Back 15

When it is irrational, arbitrary, capricious.

Front 16

When can states regulate interstate commerce?

Back 16

a. the regulation lies within the state's police powers;
b. no discrimination against interstate commerce; and
c. no undue burden placed on interstate commerce

Front 17

What are the "police powers" of the states?

Back 17

Right to protect:
Health;
Safety;
Welfare; and
Morals of the Public.

Must be rationally related to a legitimate state interest when burden on interstate commerce.

Front 18

What is the effect of the Fourteenth Amendment's Equal Protection Clause?

Back 18

It prohibits states from denying any person equal protection of the law.

Classes in regulation can be under-inclusive, but must not improperly discriminate between classes of persons who are similarly situated.

Front 19

What is the standard of scrutiny for fundamental rights issues?

Back 19

must satisfy a compelling government interest and no less intrusive alternatives can be found

Front 20

When can Commercial Speech be prohibited?

Back 20

only when it is:
false;
misleading or deceptive; or
has an illegal purpose.

Front 21

When is an ordinance unconstitutionally vague?

Back 21

When a criminal penalty exists for violation of an ordinance, the violator has a due process right to prior notice. If the ordinance is vague because it is open to subjective interpretations it is ineffective due process and unconstitutionally vague.

Front 22

US Constitution allows private shopping centers to restrict commercial speech based on content unless State Constitution makes private shopping centers "public forums" for First Amendment purposes. NC?

Back 22

North Carolina: The state Supreme Court has ruled that its state constitution may allow citizens to engage in free speech activities in shopping centers. However, the court held in a 1981 decision that the state constitution does not provide protection to signature gatherers who "accost" customers in the private parking lot of a mall if the owner has banned all solicitation. (State v. Felmet)

Front 23

When does a taxpayer have standing to sue?

Back 23

Must have a logical nexus between taxpayer and claim sought to be adjudicated...e.g., spending money on illegal cause like a violation of First Amendment based on Establishment of Religion clause

Front 24

When is there an unconstitutional regulation based on religious affiliation?

Back 24

A regulation that denies a person rights or benefits because of religious affiliation where the stat can show no compelling need to justify the regulations. Where there is a compelling need, the regulation will be upheld where the state's interest justifies the hardship.