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143 Cards in this Set
- Front
- Back
Justiciability A SPERM |
1. Abstention: fed ct can't enjoin pending state court proceeding 2. Standing: personal & direct injury; causation; redressibility 3. Political Question: cannot adjudicate 4. Eleventh A/Sovereign Immunity: States can't be sued in federal court unless fed gov't sues, express waiver, or congress removes immunity 5. Ripeness: violation of law 6. Mootness: live controversy |
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Standing: Plaintiff must allege and prove (Pickled Donuts Cause Reflux) |
1. Personal & Direct INjury 2. Causation 3. Redressibility |
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No third party standing unless |
1. Certain close relationships (dr./patient) |
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An organization may sue for its members if |
1. The members have standing to sue |
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No generalized grievances (b/c no standing)
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Plaintiff may not sue solely as a citizen or as a taxpayer to force government to follow the law
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Exception to no generalized grievances
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Taxpayers have standing to challenge government expenditures as violating the Establishment clause (very narrow - limited to money, not land) |
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Exceptions to mootness
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1. Wrong capable of repetition but evading review |
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Political Questions
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1. "Republican form of government clause" |
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Supreme Court accepts cases from state courts and US courts of appeals by
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Writ of Certiorari |
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The Supreme Court has original and exclusive jurisdiction for
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Suits between state governments
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Review of three-judge federal district courts
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Immediately appealable to Supreme Court, skips court of appeals |
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Supreme Court can hear a case under its appellate jurisdiction when |
there has been a final judgment from the highest state court, US court of appeals |
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For the Supreme Court to review a state court decision there cannot be
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Adequate and Independent state law ground of decision (reversal of the federal rule will not change the result)
Lower decision must rest on federal and state law grounds |
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mootness
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If events after the filing of a lawsuit end the plaintiff's injury, |
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Eleventh Amendment bars
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Suits against states in federal courts
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Principle of sovereign immunity
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States cannot be named as a Defendant in state courts or federal agencies
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Exceptions to sovereign immunity |
- Consent (waiver must be explicit) |
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state officers may be sued for |
- For injunctive relief |
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Define Abstention |
Federal courts may not enjoin pending state court proceedings |
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Commerce Power allows Congress to act through |
1. Channels of interstate commerce
2. Instrumentalities of interstate commerce 3. To regulate economic activities that have a Substantial Impact on interstate commerce |
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Tenth Amendment
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Limit on Congressional powers; cannot compel state regulatory or legislative action
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Legislative action requires
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Passage by both the House and Senate and presentation to the President (to sign or veto)
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Ability of Congress to delegate powers
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No limits to delegate legislative powers
Cannot delegate executive power to itself or officers |
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Treaty creation
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Negotiated by the President and effective when ratified by Senate
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Treaty vs. state laws
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Treaty prevails
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Treaty vs. federal statute
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More recent one controls
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Treaty vs. US Constitution
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A treaty in conflict with the Constitution is invalid
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Executive agreements effective when
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When signed by the President and head of the foreign nation (no Senate approval required)
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President has the power to appoint |
1. Ambassadors
2. Federal Judges 3. Officers of the US Needs consent of senate |
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appointment of inferior officers
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Congress can vest power in the President, heads of departments, or lower federal courts
May not give itself or its officers the appointment power |
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President's removal power of any executive branch office
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is absolute unless limited by statute
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How do you distinguish Substantive Due Process from Equal Protection? |
• SDP - limits liberty of all persons to engage in some activity
• EP - law treats a person or class of persons differently |
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For Congress to limit President's removal power
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1. Must be an office where independence from the President is desirable
AND 2. Cannot prohibit removal, only authorized to limit removal for good cause |
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President's immunity from suit
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- Absolute immunity to civil suits for money damages for actions while in office
- No immunity for actions that occurred prior to taking office |
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Executive privilege
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Covers papers and conversations but must yield to other important government interests
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President's power to pardon extends to
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Those accused or convicted of federal crimes
Does not extend to state crimes or civil liability |
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Implied preemption: Federal law preempts state law where |
1. Federal and state laws are mutually exclusive
2. State law frustrates a federal objective 3. Congress evidences a clear intent to preempt |
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Ability of states to tax and regulate federal government activity
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States prohibited
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state law that discriminates against out-of-staters
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it violates the DCC unless it is necessary to achieve an important gov’t purpose. |
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Analysis of a state law that discriminates against out-of-staters
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- Does it burden interstate commerce?
- Yes: Is it necessary to achieve an important government purpose? - Yes: valid (must show there is no less discriminatory way) - No: Violates DCC |
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Market Participant Exception
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A state/local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses
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Two exceptions to a law that discriminates against out of staters not necessary to achieve an important government purpose |
1. Congressional approval |
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Laws that discriminate against out-of-staters ability to earn their livelihood violate
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Violates the Article IV Privileges and Immunities clause UNLESS substantially related to an important government interest (Itm. Scrutiny) |
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Privileges and Immunities clause prohibited from use by
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1. Corporations
2. Aliens |
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Full faith and credit so long as
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1. Court rendering judgment had jurisdiction
2. Judgment was on the merits 3. Judgment is final |
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State tax systems may not be used to
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Help in state business
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Can the Gov require a license for speech?
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• Yes - ONLY IF there is an important reason for licensing and clear criteria leaving ALMOST NO discretion to the licensing authority.
• Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses AND judicial review. |
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States may only tax activities that have |
A substantial nexus to the state
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State taxation of interstate business must be (3)
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Fairly apportioned |
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Can the Gov regulate conduct that = symbolic speech?
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= can regulate conduct that communicates if: 1. it has an important interest unrelated to suppression of the message; and 2. if the impact on communication is no greater than necessary to achieve the government's purpose
(Int. Scrutiny) |
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Prohibitions on private race discrimination valid under
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Thirteenth Amendment
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Situations where private conduct must comply with the Constitution
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1. Public function exception |
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Public Function exception
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Private entity is performing a task traditionally, exclusively done by the government
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Entanglement exception
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Government affirmatively authorizes, encourages, or facilitates unconstitutional activity |
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What is the 3 part test for determining whether something qualifies as obscene? (PIPS) |
MUST meet ALL of these requirements: |
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Levels of scrutiny |
- Rational Basis test
- Intermediate scrutiny - Strict scrutiny |
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Rational Basis Test
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Rationally related to a legitimate government purpose |
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Intermediate Scrutiny
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Substantially related to an important government purpose
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Strict Scrutiny
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Necessary to achieve a compelling government purpose
government must show no other less restrictive alternative is available |
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Burden of Proof:
- Rational Basis - Intermediate Scrutiny - Strict Scrutiny |
- Rational Basis: challenger
- Intermediate Scrutiny: government - Strict Scrutiny: government |
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Deprivation of liberty occurs if
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There is the loss of a significant freedom provided by the Constitution
Loss of reputation is not a loss of liberty |
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Deprivation of property occurs where
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There is an entitlement and it is not fulfilled
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In emergency situations the government is liable under due process only if its conduct
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Shocks the conscience- intent to cause harm |
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What are the 2 Exceptions to the Gov's ability to regulate/limit profane or indecent speech?
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profane speech is generally protected, except: i)over the broadcast media (bc of intrusiveness into home and accessibility by kids) |
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Standard of conduct for government liability for a deprivation of due process |
Governmental action must be intentional or at least reckless; negligence will not suffice for due process claim
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Balancing test for procedures required to satisfy due process
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- Importance of individual's interest
- Government's interest - Ability of additional procedures to increase the fact-finding |
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Level of protection for economic liberties
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Minimal; only apply rational basis test for laws affecting economic rights |
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What level of scrutiny for commercial speech?
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intermediate scrutiny
Gov regulation must:
1. serve a substantial gov't interest, 2. directly advance that interest, 3. be narrowly tailored (does not need to be the least restrictive) |
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Takings clause |
Governemnt may take private property for public use if it provides just compensation
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Two kinds of governmental takings
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1. Possessory - no matter how minimal
2. Regulatory - a regulation leaves no reasonable economically viable use of the property |
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Just compensation measured by
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FMV of property at time of the taking
Loss to the owner; not gain to the taker |
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the contracts clause applies to
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only to state or local interference with existing contracts
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Level of scrutiny where state or local government interferes with private contracts |
Intermediate scrutiny
Does it substantially impair rights under the existing K? Is the law a reasonably and narrowly tailored means of promoting an important public interest |
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Level of scrutiny where state or local government interferes with government contracts
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Strict Scrutiny
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Standard of Review - Privacy
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Strict scrutiny |
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Fundamental right of privacy found in (CARP SPERM) |
Contraception Abortion Right to Privacy Procreation ************ Speech Parenting/Custody Extended family together Right under 1st A Marriage |
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Right to Abortion: Prior to Viability
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- State may not prohibit
- May regulate so long as the regulation does not create an undue burden on obtaining an abortion |
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Right to Abortion: After Viability
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State may prohibit UNLESS necessary to protect the woman's life/health
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Spousal consent and notification laws for abortion |
Unconstitutional
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Privacy rights not afforded strict scrutiny
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- Right to engage in homosexual activity
- Right to refuse medical treatment -Abortion (undue burden test) |
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Classifications based on Race and National Origin
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Strict scrutiny
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Classifications benefiting minorities
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Strict scrutiny |
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What is the extent of the federal police power? (MILD) |
No general police power. |
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Classifications based on Gender
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Intermediate scrutiny
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How is the existence of a law classification proven
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- Discrimination exists on the face of the law
- Law is facially neutral, but there is both a discriminatory intent and impact |
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Classifications based on Alienage
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Strict scrutiny
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Standard of review for alienage classifications that concern self-government and the democratic process |
Rational Basis test |
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Government may discriminate against non-citizens for |
- Voting
- Juries - Probation officer - Teacher - Police officer |
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Classifications based on undocumented alien children |
Intermediate scrutiny
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Classifications against non-marital children
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Intermediate scrutiny
(Generally, uphold if it discriminates between different types of nonmarital kids; strike if it discriminates between marital and nonmarital kids) |
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Can Congress induce state regulatory action? Explain.
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Yes. Congress can induce state government action by putting strings on grants, so long as:
1. conditions are expressly stated and 2. those conditions relate to the purpose of the spending program Exam tip: inducement is OK, but compelling is not. |
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Rational basis used for
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- Age
- Disability - Wealth - Economic Regs - Sexual orientation discrimination |
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Standard of review for fundamental rights
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Strict scrutiny
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Fundamental rights protected under Equal Protection
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- Right to travel
- Right to vote - Right to privacy |
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Two types of content-based restrictions on speech
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1. Subject matter restriction
2. Viewpoint restriction |
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Standard of review for content based restrictions |
Strict scrutiny
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Standard of review for content neutral laws burdening speech generally |
Intermediate scrutiny
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Unprotected/less protected speech |
- Incitement of illegal activity |
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Incitement of illegal activity test |
punishable if:
1. substantial likelihood of imminent illegal activity |
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Commercial speech for illegal activity or false and deceptive ads |
Not protected by the First amendment
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Government regulation of commercial speech
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- Must be narrowly tailored
- Need NOT be the least restrictive alternative |
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Regarding privacy, no liability for (1A context)
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- Truthful reporting of lawfully obtained material, OR
- Matters of public importance |
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Speech for Government employees on the job or in the performance of duties |
Not protected
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Regulations on Public forums and designated public forums |
- Limited to time, place, manner restrictions |
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Regulations on limited Public Forums
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1. rational basis
2. viewpoint neutral |
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Regulations for non-Public forums
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Government can regulate so long as the regulation is
1. rational basis 2. viewpoint neutral |
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Standard of review for laws that prohibit or punish freedom of association
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Strict scrutiny |
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To punish membership in a group must prove (3 AAA) |
1. Actively affiliated with the group
(knowing + specific intent) |
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What is the Privileges & Immunities clause of Article IV?
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no state may deprive citizens of other states of the P & Is that it affords its own citizens.
An anti-discrimination provision - limits ability of a state to discriminate against out-of-staters |
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Standard of review for laws that require disclosure of group membership
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Strict scrutiny |
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Laws that prohibit a group from discriminating are constitutional UNLESS (2)
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- They interfere with intimate associations
OR - Expressive activity |
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If a law does not discriminate against out of staters, is the P&I clause involved? Dormant commerce clause?
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If the law doesn’t discriminate against out-of-staters, the P&I clause of Article IV does NOT apply! |
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The free exercise clause cannot be used to challenge |
A neutral law of general applicability |
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The Establishment clause test (3 SEX) |
prohibits govt from making laws that favor one religion over another, or non-religion over religion, etc.
1. Secular purpose |
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Standard of review for discrimination against religious speech
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Strict scrutiny
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plaintiff's seeking injunctive or declaratory relief must show
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a likelihood of future harm |
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best standing for MBE
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1. actual injury, and |
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What are the 3 main rules about State Taxation of Interstate Commerce that we need to know?
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1. States may not use their tax systems to help in-state businesses
2. A state may only tax activities if there is a substantial nexus to the state 3. State taxation of interstate businesses must be fairly apportioned. |
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Does the federal government have to comply with state & local laws? What is this principle called?
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NO
intergovernmental immunity |
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what is ripeness |
whether a federal court can grant pre-enforcement review of a statute or regulation
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considerations for ripeness
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1. the hardship that will be suffered without a pre-enforcement review
2. the fitness of the issues and the record for judicial review |
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rule regarding the ability of congress to tax and spend
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for the general welfare
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Executive agreement vs. state law
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executive agreement controls
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Executive agreement vs. federal statute
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federal statute controls
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executive agreement can be used for
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any purpose
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what does entitlement mean for deprivation of property purposes |
a reasonable expectation to continued receipt of a benefit
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Government liability failure to protect from privately inflicted harm
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- Not a violation of due process
- Only a duty to protect when the government creates the danger or a person is in government custody |
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parental notice and consent of an unmarried minors abortion |
may require notice and consent if as an alternative can go before a judge who can approve the abortion if |
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numerical set-asides benefiting minorities require |
clear proof of past discrimination
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gender classifications that benefit women |
based on role stereotypes- not allowed |
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federal enumerated powers
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1. commerce clause
2. taxing power 3. spending power |
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first amendment vagueness |
- the law lacks clarification on what speech is prohibited
- fighting words laws are always void for vagueness |
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first amendment overbreadth |
the law prohibits too much speech in order to achieve the objective |
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prior restraint on free speech
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Judicial order stopping speeach before it occurs strict scrutiny 3. prompt and final determination
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if preliminary injunction granted (prior restraint) and person speaks anyway in violation |
cannot challenge it later (cannot be overturned) |
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Defamation |
libel and slander are not protected |
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For Defamation P must prove: 1. public official 2. public figure 3. private figure/public concern 4. private figure/not a public concern |
1. falsity and actual malice 2. falsity and actual malice 3. falsity and negligence 4. no malice necessary |
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public forum |
gov't property that is historically open for speech: streets, sidewalks, public parks
Test: narrowly tailored to serve important gov't interest and leave open alternative channels of communication.
Subject and viewpoint neutral |
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Designated public forum |
gov't property that could be closed to speech, but which gov't has chosen to open
Test: narrowly tailored to serve important gov't interst and leaves open alternative channels of communication.
Subject and viewpoint neutral |
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Limited public forum |
Gov't property limited to certain groups or dedicated to discussion of limited topics
Test: reasonably related to legitimate purpose
Viewpoint neutral |
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Non-public forums |
Gov't property that gov't can and does close to speech (mil bases, outside prisons, sidewalks on post office prop, ad space on city buses, airports)
Test: reasonably related to a legitimate gov't purpose
Viewpoint neutral |
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Subject matter restrictions |
restict topics of speech |
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viewpoint restrictions |
restrict ideologies |