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14 Cards in this Set

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Strict Scrutiny

Applies to: Race, National Origin, Facial Classifications, Intended Disparate Impact


Govt purpose: compelling


Means: necessary

IS

Applies to: Sex (no archaic stereotypes), Illigitimate Children


Govt purpose: important


Means: substantial relation


IS+?: exceedingly persuasive justification (from Hogan - MI Univ for Women)

RBR

applies to: age, poverty, federal aliens (unless discussing access to government functions), and disparate impact only cases


govt purpose: legitimate


means: rationally related

RBR w/ bite

applies to: disability, sexual orientation


govt purpose: reasonable


means: substantial relation (same as IS) - cannot be underinclusive

Frontiero Factors

1. History of Discrim


2. Ideology of subordination/stereotype


3. Trait (immutible, apparent, not salient)


4. Representation reinforcement



Lopez ISC Rules

1. Interstate is regulated (commercial/economic channels,


2 AND/OR: instrumentalities, and persons/things)


3. Intrastate is regulated when an aggregation of goods that have a substantial effect (Wickard brought agg, and Rehnquist/Lopez brought back substantial.


If commercial, follow the new deal cases: Darby, Wickard, Heart of Atl, Perez


If non-commercial/economic, then no deference to congress. Morrison and Lopez.


3.a - jurisdictional element: must be explicitly stated as an element in the law.


3.b - explicit findings of fact: must be the RIGHT KIND OF FACTS (Morrison), and CANNOT INTRUDE UPON TRADITIONAL STATE AUTHORITY


4. part of a comprehensive federal regulation scheme that would otherwise be undercut. (Raich). Drugs, insurance, healthcare.

Anti-Commandeering (Rehnquist)

If fed gov tells states how to regulate their citizens (Printz)


OR


If fed gov uses state employees to implement their federal plan


VALID if regulating states' internal operations (Reno v. Condon).

Formalism, New Deal, Rehnquist Court

New Deal includes NLRB v. Jones, Darby, Wickard, and Katzenbach


Rehnquist starts with Lopez.

1. ID the fundamental right: History/Tradition in Common Law

Griswold (dissent)


Bowers, Cruzan, Glucksberg


1. "Careful discription" of the right - focus on behavior claimed to be privileged (eg, gay sodomy)


2. Is it "deeply rooted in the Nation's history and tradition as evidenced in history, traditions, and practices.


3. Is there a counter principle? Which is a better fit (lawrence)


4. Implicit in concept of ordered liberty (Palko)


5. Presumption against new unenumerated fundamental rights.



1. ID the fundamental right: Living Liberty and Evolving Values

Griswold, Loving, Casey, Lawrence


contraception, anti-miscegenation, abortion, sodomy/intimate association)


1. Does law violate values "implicit in the concept of ordered liberty"


2. US tradition of liberty is "a living thing"


3. Determining if valid, involves rational judicial inquiry (means/ends)

2. ID the state's interest


3. Balance the state's interest against the individual right

Non-fundamental right (social/economic): Heightened under Lochner (actual purpose review), now just RBR w/ deferrence to legislature (West Coast/Lee Optical)




Fundamental: SS (Roe)




Abortion: Undue Burden


Effects (Carhart): alternatives, change in quality, easily applied to juries


Intent of legislature and gov purpose


If no undue burden then apply RBR

SS

Privacy


Marital Privacy (Griswold)


Abortion (Roe, Casey, Carhart)


Intimate Associations (Eisenstadt, Population Services, Lawrence)




Marriage (Loving)




Right to Raise and Educate (Meyer)

RBR (NOT FUNDAMENTAL)

West Coast


Lee Optical


Glucksberg




contract, divorce, health care, social economic rights, right to die

Arlington Heights Factors for Invidious Purpose

1. Effects of the action – did it have adisparate impact?


2. Have to look at comments made by people asthey were making the decision (historical background of legislation + eventsleading up to it being passed)


3. Have to look at history of similar action(is there any procedural irregularity?)