Glossary of NY Bar Exam Review - Constitutional Law

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Where are the powers of federal courts defined?
Article III
How has the SC interpreted the words "cases and controversies"?
As imposing limits on federal courts' jurisdictions. These are referred to as justiciability doctrines.
What are the four justiciability doctrines?
1) Standing
2) Ripeness
3) Mootness
4) The political question doctrine
What is standing?
*Most important justiciability doctrine.

Standing is the question of whether P is the proper party to bring a matter to the court for adjudication.
What requirements must be met in order for P to have standing?
1) Injury
2) Causation and redressability
3) No third party standing
4) No generalized grievances
What is the injury requirements?
P must allege and prove that he or she has been or imminently will be injured.
What are the rules with respect to the injury requirement?
1) Ps only may assert injuries that they personally have suffered.
2) Ps seeking injunctive or declaratory relief must show a likelihood of future harm.
On MBE, what should you look for when the question asks which P has the "best" standing?
Look for the answer choice where the P has personally suffered an injury. If there's more than one of those, choose the P who has suffered an economic loss - a dollar and cents harm.
What is the causation and redressability requirement?
P must allege and prove that the D caused the injury so that a favorable court decision is likely to remedy the injury.
What is the core of Article III?
A prohibition against SC issuing advisory opinions.
What is third party standing?
Where P presents the claims of others - third parties who are not before the court.
What is the rule with respect to third party standing?
A P cannot assert claims of others, of third parties, who are not before the court.
What are the exceptions to the third party standing rule?
1) If there is a close relationship b/t the P and the injured third party (e.g. doctor/patient)
2) If the injured third party is unlikely to be able to assert his or her own rights
3) Organization may sue for its members (associational standing)
What is required to show that the exception for injured third parties unlikely to be able to assert their own rights to apply?
A P who meets the other standing requirements may present the claims of a third party if there's reason to believe that the third party can't or won't protect itself. E.g., criminal D's have third party standing to raise the rights of prospective jurors to be free from discrimination in jury selection.
What is required for the associational standing exception to apply?
An organization may sue for its members IF:
1) the members would have standing to sue;
2) the interests are germane to the organization's purpose;
3) Neither the claim nor relief requires participation of individual members.
What is the rule with respect to generalized grievances?
The P must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law.
What is the exception to the general grievance rule?
Taxpayers have standing to challenge government expenditures as violating the Establishment Clause. *Very narrow exception - TPs lack standing to challenge federal gov't grants of PROPERTY to religious institutions.
What is ripeness?
Ripeness is the question of whether a federal court may grant preenforcment review of a statute or regulation.
What is the usual way of challenging the law?
Violate it, be prosecuted for it, and then claim that it is unconstitutional as one of the defenses.
When may a ripeness issue be present?
Whenever a con law question says that the P is seeking a declaratory judgment, there's a possibility of a ripeness issue.
What will the court consider in evaluating the ripeness issue?
Two issues:
1) The hardship that will be suffered without preenforcement review;
2) The fitness of the issues and the record for judicial review (Does teh federal court have before it all that it needs to effectively decide the issue?)
What is mootness?
If events after the filing of a lawsuit end the P's injury, the case must be dismissed as moot.
What is the general rule with respect to mootness?
A P must present a live controversy at all stages of the federal court proceedings. if anything happens during proceedings to end P's injuries, the case is moot.
What are the exceptions to the general mootness rule?
1) A wrong that is capable of repetition but evading review (e.g. Roe v. Wade)
2) Voluntary cessation
3) Class actioni suits.
What is the rule with respect to voluntary cessation?
If D voluntarily halts the offending practice, but is free to resume it at any time, the case will not be dismissed as moot. The key is whether D is legally free to resume the behavior at any time.
What is the rule with respect to class action suits?
If named P's action has become moot, a class action will not be dismissed so long as one member of the class has an ongoing injury.
What is the political question doctrine?
The political question doctrine refers to allegations of constitutional violations that the federal courts will not adjudicate.
What types of cases are dismissible as non-justicible political questions?
1) The "republican form of government" clause
2) Challenges to the President's conduct of foreign policy (e.g. arguments that the Vietnam War was unconstitutional b/c it had been waged w/o consent of Congress; suit by member of Congress saying that Congress should have to approve recission of a treaty same way it has to approve entering a treaty)
3) Challenges to the impeachment and removal process
4) Challenges to partisan gerrymandering.
To what courts do the justicability doctrines apply?
To any federal court at any level.
What is necessary for the SC to hear a case?
All of the justiciability requirements must be met, PLUS:
1) Vitrually all cases come to SC by writ of certiorari nad SC has complete discretion whether to hear them. Must have four votes for certiorari to hear;
2) Generally, SC may hear cases only after there has been a final judgment of the highest state court, of a US Ct of Appeals, or of a 3-judge federal district court.
3) For the SC to review a state court decision, there must not be an independent and adeuqate state law ground of decision.
How do cases from state courts come to SC?
By writ of certiorari.
How do cases from US Courts of Appeals come to SC?
By writ of certiorari.
When can a case skip the Court of Appeals and go straight to the SC?
Where there is a 3-judge federal district court and decision is appealed.
Over what types of cases does the SC have original and exclusive jurisdiction?
Suits between state governments.
What is the rule with respect to independent and adequate state law grounds of decision?
If a state court decision rests on two grounds, one state law and one federal law, if the SC's reversal of the federal law ground will not change the result in the case, the SC cannot hear it.
What types of things may federal courts not do?
1) Federal courts may not hear suits against state governments;
2) Federal courts may not enjoin pending state court proceedings (Abstention)
What is sovereign immunity?
The 11th Amendment bars suits against states in federal court whether they are for money or for an injunction.
Sovereign immunity also bars suits against states in state courts or federal agencies.
What are the exceptions to sovereign immunity?
States may be sued under the following circumstances:
1) Waiver is permitted
2) States may be sued pursuant to federal laws adopted under §5 of the 14th Amendment. Congress cannot authorize suits against states under other constitutional provisions.
3) The federal government may suue state governments - this is not barred by sovereign immunity.
What is the rule with respect to waiver of sovereign immunity?
A state may waive its sovereign immunity, but the waiver must be explicit; there's no implied or constructive waiver of sovereign immunity.
May state officers be sued and if so, when?
State officers may be sued for injunctive relief or for money damages to be paid out of their own pockets.

State officers may not be sued if the state treasury will be paying retroactive damages.
What does abstention refer to?
Refers to instances in which a federal court has jurisdiction, but must not exercise it.
What is required for Congress to act?
For Congress to act, there must be express or implied Congressional power. **There is NO general federal police power!
When does Congress have police power?
Congress has a MILD police power:

1) M - Military
2) I - Indian reservations
3) L - federal Lands and territories
4) D - District of Columbia
What is the necessary and proper clause?
Conress may choose any means, not prohibited by the Constitution, to carry out its authority.
What is the rule with respect to Congress's power to tax and spend for the general welfare?
Congres may create any tax to raise revenue and any spending program to spend it, that it thinks will benefit the general welfare.
When can an answer choice using the words "general welfare" be a correct answer?
Only if either Congress is taxing and spending in the question, or it's one of the few areas where Congress has the police power.
In what areas may Congress use its authority under the Commerce Clause?
1) Congress may regulate the channels of interstate commerce;
2) Congress may regulate the instrumentalities of interstate commerce (things that facilitate interstate commerce, such as trucks, planes, telephones, internet) and persons or things in interstate commerce;
3) Congress may regulate activities that have a substantial effect on interstate commerce.
When may a "substantial effect on commerce" be based on cumulative impact?
Only where an economic activity is involved.
Ex - wheat farming is an economic activity, but violence against women is not.
What does the 10th Amendment say about Congressional powers?
All powers that aren't given to the US, or forbidden to the states, are reserved to the states and the people.
What principles should you know about the 10th Amendment?
1) Congress cannot compel state regulatory or legislative action (can't conscript/commandeer the states);
2) Congress may prohibit harmful commercial activity by state governments.
May Congress induce state government action by putting strings on grants?
Yes, so long as the conditions are expressly stated and relate to the purpose of the spending program.
What is the scope of Congress's power under §5 of the 14th Amendment?
Congress may not create new rights or expand the scope of rights under §5 of the 14th Amendment. Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be "proportionate" and "congruent" to remedying constitutional violations.
What is important to know about delegation of powers by Congress?
1) No limit exists on Congress' ability to delegate legislative power to executive agencies or even to the judiciary (**NEVER pick as an answer choice that an act of Congress is unconstitutional b/c of too broad a delegation of powers);
2) Legislative vetos and line-item vetos are unconstitutional;
3) Congress may not delegate executive power to itself or its officers
What is always required for Congress to act?
1) Bicamerealism (passage by both the House and the Senate) and
2) Presentment (giving the bill to the President to sign or veto - President must sign or veto bill in its entirety)
What is a legislative veto?
Where Congress attempts to overturn an executive action without bicameralism and presentment.
What is required for Congress to overturn and executive action?
Bicameralism and Presentment.
What is a line item veto?
Where President attempts to veto part of the bill while signing the rest into law.
What types of foreign policy powers does the President have?
1) Treaties
2) Executive agreements
3) Use of American troops in foreign countries.
What are treaties?
Agreements between teh US and a foreign country that are negotiated by teh President and are effective when ratified by the Senate.
What rules apply to treaties?
1) Treaties prevail over conflicting state laws
2) If a treaty conflicts with a federal statute, the one adopted last in time controls
3) If a treaty conflicts with the US Constitution, it is invalid.
What is an executive agreement?
An agreement between the US and a foreign country that is effective when signed by the President and the head of the foreign nation.
What is the difference between an executive agreement and a treaty?
Executive agreements don't require approval of the Senat. Treaties do. On the exam, if something is labeled a treaty, it must receive approval of Senate before it becomes effective. If it is labeled an executive agreement, it comes into effect even without approval of the Senate.
What are the rules with respect to executive agreements?
1) Executive agreements can be used for any purpose that a treaty can be used for
2) Executive agreements prevail over conflicting state laws, but NEVER over conflicting federal laws (regardless of when passed) or the Constitution.
What is the scope of teh President's powers as Commander-in-Chief to use American troops in foreign countries?
Very broad. SC has NEVER declared President's use of troops in foreign country unconstitutional. Best answer is that a challenge would be dismissed as a political question. Second best answer is it would be dismissed b/c the President has broad power to use troops.
What types of domestic powers and privileges does the President possess?
1) The appointment and removal power;
2)Immunity to civil suits for money damages for any actions while in office
3) Executive privilege for presidential papers and conversations, but such privilege must yield to other important government interests;
3) Power to pardon those accused or convicted of federal crimes.
What is the President's appointment power?
The President appoints ambassadors, federal judges and officers of the US. The Senate must approve, but appointment power is solely in President.
What is the rule with respect to appointment of inferior officers?
Congress may vest the appointment of inferior officers in the President, teh heads of departments, or the lower federal courts. Congress can vest the appointment of the independent counsel in the lower federal courts.
May Congress give itself or its officers the appointment power?
What is the President's removal power?
Unless removal is limited by statute, the President may fire any executive branch office.
When may Congress limit removal?
Only where two criteria are met:
1) For Congress to limit removal, it must be an office where independence from the President is desirable (ex: independent counsel - desirable for him to be independent of President if he is investigating wrongdoing by the President). BUT, Congress cannot limit removal of President's cabinet; and
2) Congress cannot prohibit removal, it can only limit removal to where there is good cause.
Who may be impeached and removed from office and for what reasons?
President, Vice-President, federal judges and officers of the US

For treason, bribery or high crimes and misdemeanors (don't worry about definition of high crimes and misdemeanors)
Who has the power to impeach and convict?
House of Representatives has the sole power to impeach. If House impeaches, only Senate can convict
What are the requirements for impeachment and conviction?
Impeachment by House requires majority vote and conviction in Senate requires 2/3 vote.
For what may the President be sued?
Can be sued for acts that allegedly took place before he took teh office of President.
What is the executive privilege?
The authority of President to keep secret conversations with or memoranda from officers.
What is the exception to the pardon power?
If a person has been impeached by the House, there can never be a pardon.
What are the restrictions on the President's pardon power?
President may pardon ONLY as to federal crimes, NEVER as to state crimes;

President may pardon ONLY for criminal liability; NEVER for civil liability.
What is the Supremecy Clause of Article III?
Provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.
What is the result if there is a conflict b/t a federal law on teh one hand and a state or local law on the other?
The state or local law is preempted.
In what ways may preemption be found?
1) Express preemption
2) Implied preemption
3) States may not tax or regulate federal government activity (Intergovernmental immunity)
What is express preemption?
If a federal statute expressly says that federal law wholly occupies a field, then state and local laws are preempted. Any time Congress has the authority to act, it can declare that federal law wholly occupies the field.
How can implied preemption be found?
Even if the statute doesn't expressly preempt, implicit preemption can be found in one of three ways:
1) If federal and state law are mutually exclusive, federal law preempts the states law;
2) If state law impedes the achievement of a federal objective, federal law preempts the state law;
3) If Congress evidences a clear intent (through legislative history) to preempt state law, federal law preempts state law. (E.g. immigration law)
May a state set environmental laws stricter than federal standards?
Yes, unless Coingress clearly prohibits this.
What is the classic form of a question involving the prohibition of states taxing or regulating federal gov't activity?
Mom and Pop store that's privately owned and operates on federal land - state can tax the store b/c it is privately owned. State can require EE to pay income tax because it is an individaul paying not the gov't. But, if it is a federally owned store on an army base, state may not tax the sotre b/c it would have to be paid out of the federal treasury.
What is the rule with respect to state regulation of federal gov't?
States cannot regulate the federal gov't if they would put a significant burden on federal activity. E.g., federal gov't NEVER has to comply with state pollution control laws.
What is the dormant commerce clause?
The principle that state and local laws are unconstitutional if they place an UNDUE BURDEN on interstate commerce.
In what way is the DCC sometimes referred to on the MBE?
The "negative implications of the commerce clause"
What is the privileges and immunities clause of Article IV?
The privileges and immunities clause of Article IV provides that no state may deny citizens of other states the privileges and immunities it affords its own citizens. *This is an anti-discrimination provision that applies only when a state is discriminating against citizens of another state.
What is the privielges or immunities clause of the 14th Amendment?
The privileges or immunities clause of the 14th Amendment is ALWAYS a wrong answer unless the question involves the right to travel. It is meant to protect people from their own state governments. Right to travel is a fundamental right under the privileges or immunities clause of the 14th Amendment.
What is the first question you should ask with respect to a DCC question?
Does the state law discriminate against out of staters or does it treate instaters and out of staters alike?
What rules apply if the law does not discriminate against out of staters?
1) The privileges and immunities clause of Article IV does NOT apply becuase it is an antidiscrimination provision; if there's no discrimination it doesn't apply.
2) If the law burdens interstate commerce, it violates the DCC if its burdens exceed its benefits.
What is the test used to determine if teh burdens outweigh the benefits?
A balancing test.
What rules apply if the law DOES discriminate against out of staters?
1) If the law burdens interstate commerce, it violates the DCC unless it is necessary to achieve an important government purpose.
2) There is a strong presumption against discriminatory state and local laws that put a burden on interstate commerrce.
3) Helping in-staters in teh instate economy at the expense of out of staters in the out of state economy will NEVER be held to be a sufficiently important governmental purpose.
4) The "necessary" requirement requires the state to prove that NO less discriminatory alternative can acheive its objective.
What are the exceptions?
1) Congressional approval (If Congress approves the state or local law, it is then permissible, even if otherwise it would violate the DCC)
2) The market participant exception
What is the market participant exception?
A state or local government may prefer its own citizens in recieving benefits from government programs or in dealing with government owned businesses.
What are two examples of the market participant exception?
1) State universities can chahrge less in tuition to in state residents and more in tuition to out of state residents. This is allowed b/c state university system is regarded as a govt benefit program and the state can prefer irs own citizens, who've long been paying taxes to support it, to out of state citizens, who have not.
2) State owned cement factory that charged less to in state purchasers of cement and more to out of state purchasers.
What if the law discriminates agianst out of staters with regard to civil liberties, or their ability to earn their libelihood?
It violates the privileges and immunities clause of
Article IV unless it is necessary to achieve an important gov't purpose.
What is necessary for P and I clause to apply?
1) There must be discrimination against out of staters;
2) The discrimination must be with regard to civil liberties or important economic activities (in practice, comes up more with respect to latter - ability of person to earn a living - than with civil liberties);
3) Corporations and aliens cannot invoke this provision;
4) The discrimination will be allowed only if it is necessary to achieve an important gov't purpose.
If a state or local gov't action discriminates against out of staters, when does it violate the DCC?
If it places a burden on interstate commerce, unless it is necesary to achieve an important government purpose. Two exceptions: Congressional approval of discrimination and market participant exception.
If a state or local government's actions discriminate against out of staters, when does it violate the P and I Clause of Article IV?
If it discriminates against individuals with regard to important economic activities or civil liberties unless it is necessary to achieve an important government purpose.
If a state or local government's action does not discriminate against out of staters, when does it violate the DCC?
If the government is burdening interstate commerce, must balance the benefit to the state against the burden on interstate commerce (if the benefit exceeds the burden, the law is upheld; if the burden exceeds the benefit, the law is struck down).
If the state or local government's action does not discriminate against out of staters, when does it violate the P and I clause of article IV?
The P and I clause of Article IV is inapplicable in the absence of discrimination.
What are the rules with respect to state taxation of interstate commerce?
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.
What is the full faith and credit rule?i
Courts in one state must give full faith and credit to judgments of courts in another state, so long as:
1) The court that rendered the judgment had jurisdiction over the parties and the subject matter;
2) The judgment was on the merits
3) The judgment is final.
To what types of acts does the Constitution apply?
To acts of gov't at all levels - federal, state, and local, and officers at all levels - federal, state, and local, but not to private conduct.
When may private conduct be challenged?
Congress, by statute, may apply constitutional norms to private conduct.
In what types of situations may Congress apply constitutional norms to private conduct?
1) Pursuant to the 13th Amendment, Congress can prohibit private race discrimination ;
2) Pursuant to the commerce clause, Congress can apply constitutional norms to private conduct;
3) Congress cannot use §5 of the 14th Amendment to regulate private behavior. Can ONLY regulate state and local governments under this provision
How does the 13th A work to regulate private conduct?
13th A is the one provision of the Constitution that applies directly to private conduct - people cannot own slaves.
Also gives Congress broad power to prohibit private race discrimination.
But, keep in mind that discrimination NEVER violates the 13th A itself, ony slavery does. But, discrimination can violate federal laws adopted by Congress under the 13th A.
What are the exceptions to the state action doctrine, the situations where private conduct MUST comply with the Constitution?
1) The public function exception; and
2) The entanglement exception.
What is the public function exception?
The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government (e.g. where a company, rather than a municipal government runs a town, must abide by free speech rules, but running utility company is NOT an activity that has traditionally and exclusively been performed by gov't.)
What is the entanglement exception?
The Constitution applies if the government affirmatively authorizes, encourages, or facilitates, unconstitutional activity.
What is the remedy where the entanglement exception applies?
Either the gov't has to stop what it's doing or the private conduct has to comply with the Constitution.
What rules must you know about teh entanglement exception?
Cases are inconsistent, so just have to know:
1) Courts CANNOT enforce racially restrictive covenants;
2) There IS state action when the gov't leases premises to a restaurant that racially discriminates;
3) There IS state action when a state provides free books to a private school that racially discriminates;
4) There was NOT state action when a private school that was over 99% funded by the gov't fired a teacher b/c of her speech. (*Gov't subsidy is insufficient for finding state action.)
5) There is NOT state action when the NCAA orders the suspension of a basketball coach of a state university.
6) There IS state action when a private entity regulates interscholastic sports within a state (*Court distinguished from NCAA case b/c NCAA operates in multiple states and private entity regulating sports here operated in only one state);
7) There is NOT state action when a private club with a liquor license in the state racially discriminates.
To whom does the Bill of Rights apply?
1) The Bill of Rights applies directly only to the federal government, BUT
2) The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the 14th Amendment.
What are the exceptions to the application of the Bill of Rights to state and local governments?
1) The 2nd A right to bear arms.
2) The 3rd A right to not have soldiers quartered in a person's home
3) The 5th A right to grand jury indictment in criminal cases
4) The 7th A right to jury trial in civil cases
5) The 8th A right against excessive fines. (*Note: other provisions of 8th A - cruel and unusual clause and prohibition against excess bail - DO apply to state and local governments).
What is the rational basis test?
The law will be upheld if it is rationally related to a legitimate government purpose.
Must the government's ACTUAL purpose be legitimate under rational basis?
No, so long as there is a conceivable purpose that is legitimate.
Who has the burden of proof under rational basis?
Challenger has the burden of proof - law will be upheld unless challenger can show that there is no conceiveable legitimate purpose or that the law is not rationally related to it.
What is intermediate scrutiny?
Law will be upheld if it is substantially related to an immportant government purpose.
Must the government's ACTUAL objective be important?
Yes, a conceivable important purpose is not good enough.
How, under intermediate scrutiny, must the means be related to the purpose?
"Substantially related," meaning a good way, a narrowly tailored way, to achieve the purpose, but doesn't have to be the best way, doesn't have to be the least restrictive alternative.
Who has the burden of proof under intermediate scrutiny?
The government has the burden of proof and the law will only be upheld if the government can show that it is substantially related to an important government purpose.
What is strict scrutiny?
A law will be upheld if it is necessary to achieve a compelling government purpose.
Must the government's ACTUAL purpose be compelling?
What is the relationship between the means and the purpose?
The means chosen must be shown to be necessary to obtain the result. The least restrictive alternative analysis is used.
Who has the burden of proof?
The government has the burden of proof. Law will be upheld only if the government can prove that it is necessary to achieve a compelling government purpose.
What questions must be asked under procedural due process analysis?
1) Has there been a deprivation of life, liberty or property?
2) What procedures are required?
When does a deprivation of liberty occur?
If there is the loss of a significant freedom provided by the Constitution or a statute. In other words, it's the written law - the Constitution and statutes - that create liberty interests. On bar, almost always involves deprivation of Constitutional rights.
What are some other examples involving potential deprivations of liberty?
1) Except in emergency, before an adult can be civilly committed, there must be notice and a hearing;
2) When a parent institutionalizes a chihld, there need only be a screening by a neutral fact-finder. (SC assumes that parents act in the best interests of theri children, even when they're having them committed)
3) Harm to reputation, by itself, is NOT a loss of liberty. ONly if a person can show a tangible loss - a dollar and cents injury - is a harm to reputation a loss of liberty;
4)Prisoners will almost always lose on these claims.
When does a deprivation of property occur?
If there is an entitlement and that entitlement is not fulfilled. SC has stopped using the rights/privilege distinction for due process. Thus, answer choices that say something like, no DP requierd b/c privilege, not right, are always incorrect.
When does an entitlement exist?
If there is a rasonable expectation of continued receipt of a benefit.
May due process claim be based on government negligence?
No. Not sufficient for a deprivatin of due process. Generally, there must be intentional government action or at least reckless action for liability to exist. However, in emergency situations, the government is liable under due process only if its conduct "shocks the conscience."
What must be shown to establish that government behavior shocks the conscience?
That the officers operated with the intent of causing harm to the victim.
Does the government's failure to protect people from privately inflicted harms ever deny due process?
Generally, no.
If there has been a deprivation, what procedures are required?
Must balance:
1) The importance of the interest to the individual;
2) The ability of additional procedures to increase the accuracy of the fact-finding;
3) The government interest in administrative efficiency.
What is required before welfare benefits can be terminated?
Notice and a hearing
What is required when social security disability benefits are terminated?
Only a post-termination hearing.
What is required when a student is disciplined by a public school (e.g. being suspended)?
There must be notice of the charges and an opportunity to explain (e.g. to principal or other administrator); there does NOT need to be a trial-type hearing.
What is required when a parent's right to custody of a child can b e permanently terminated?
Notice and a hearing.
What is required when punitive damages are awarded?
Instructions to the jury and judicial review to ensure reasonableness - grossly excessive punitive damages violate DP.
What is required when an American citizen is apprehended in a foreign country and held as an enemy combatant?
Must be afforded DP - at a minimum, has to be given notice of hte charges, representation by an attorney, and a meaningful factual hearing.
What is required for pre-judgment attachment for governmenet seizure of assets?
Except in exigent circumstances, must be proceeded by notice and a hearing. If there's reason to believe that the person would get rid of the property if there were notice before the hearing, then there can be notice and hearing immediately following the attachment. NOTE: DP does not requier an innocent owner defense to government seizure.
What is substantive due process?
Substantive DP asks whether the government has an adequate reason for taking away a person's life, liberty, or property. Used in two areas: economic liberties and privacy.
What is the protection for economic liberties?
Only a rational basis test is used for laws affecting economic rights. DP challenges to things like minimum wage legislation, bar requirements, etc., will fail.
What Constitutional provisions does protection of economic liberties come under?
1) Takings clause
2) Contracts clause
What does the takings clause state?
The government may take private property for public use if it provides just compensation.
What is the test for takings clause analysis?
1) Is there a taking?
2) Is it for public use?
3) Is just compensation paid?
What types of takings are there?
1) Posessory taking
2) Regulatory taking
What is a possessory taking?
Government confiscation or physical occupation of property is ALWAYS a taking. Doesn't matter how small the amount of property is.
What is a regulatory taking?
Government regulation is a taking if it leaves NO reasonable economically viable use of the property. Note that government regulation is not a taking just b/c regulation decreases the value of proeprty; only if it leaves NO reasonable economically viable use of the property.
What is the rule with respect to government conditions on development of property?
Conditions must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise, it is a taking.
May a property owner bring a takings challenge to regulations that existed at the time the property was acquired?
Is temporarily denying an owner use of property a taking?
No, so long as the government's action is reasonable.
When is a taking for public use?
SC has said that a taking is for the public use so long as the government acts under a reasonable belief that hte taking will benefit the public (very broad definition of public use - very deferential standard for government).
How is just compensation measured?
Just compensation is measured in terms of LOSS TO THE OWNER in reasonable market value terms; the gain to the taker is irrelevant.
Where is the contracts caluse and what does it say?
Art. I, §10. No state shall impair the obligations of contracts.
To what does the contracts clause apply?
Applies only to state or local interference with existing contracts. NEVER applies to the federal government, even if the federal government is interfering with already existing contracts. And, does NOT prevent the state or local government from regulating future contracts.
What is the standard for state or local interference with private contracts?
Must meet intermediate scrutiny (BUT, test is different from normal intermediate scrutiny. Standard is:
1) Does the legislation substantially impair a party's rights under an existing contract?
2) If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
What is the standard for state or local interference with government contracts?
Must meet strict scrutiny. SC is very suspicious if a state or local government tries to get out of its own Ks without paying damages.
What is the test for retroactive civil liability?
Only need meet a rational basis test (Ex post facto clause does not apply in civil cases).
What is a bill of attainder?
A law that directs the punishment of a specific person or persons without a trial.
What is an ex post facto law?
A law that criminally punishes conduct that was lawful when it was done or increases the punishment imposed for that conduct after the fact.
What is the rule with respect to privacy and due process?
Privacy is a fundamental right protected under substantive due process. Generally, strict scrutiny is used when the government interferes with privacy rights. Prviacy is an unbrella used to descrie a number of specific liberties.
What specific liberties are encompassed under the right to privacy?
1) The right to marry (strict scrutiny)
2) The right to procreate (strict scrutiny)
3) The right to custody of one's children (Can permanently terminate custody ONLY if compelling reason such as abuse or neglect)
4) The right to keep the family together (broader than just parents and kids; includes extended family - but must be related);
5) The right to control the upbringing of one's children (strict scrutiny);
6) The right to purchase and use contraceptives;
7) The right to an abortion
8) The right to engage in private consensual homosexual activity
9) The right to refuse medical treatment
10) NO constitutional right to physician-assisted suicide.
What is the qualification to the rule of right to custody of one's children?
The state may create an irrebuttable presumption that a woman's husband is the father of her child.
What is the standad with respect to the right to abortion?
Strict scrutiny is no longer used with regard to abortion laws. Standard:

1) Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an UNDUE BURDEN on teh ability to obtain abortions;
2) After viability, states may prohibit abortions unless necessary to protect the woman's life or health.
What is viability?
The point at which a fetus can survive outside the womb.
Is a requirement for a 24 hour waiting period for abortions an undue burden?
Is a requirement that abortions be performed by licensed physicians an undue burdern?
Is the prohibition of partial birth abortions an undue burden?
Yes, particularly because there was no exception in the law to protect the life or health of women.
Does the government have any duty to subsidize abortions or provide abortions in public hospitals?
Are spousal consent and notification laws constitutional?
Are parental notice and consent laws for unmarried minors constitutional?
A state may require parental notice and/or consent for an unmarried minor's abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor's best interests or that she is mature enough to decide for herself.
What is the level of scrutiny applied for the right to engage in private consensual homosexual conduct?
SC did not articulate a level of scrutiny for this right. SC simply held that hte government cannot outlaw or punish private consentual homosexual conduct.
What is the rule with respect to the right to refuse medical treatment?
1) Competent adults have the right to refuse medical treatment, even life-saving medical treatment (no levvel of scrutiny specified);
2) A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended (states have a compelling interest in safeguarding the sanctity of life);
3) A state may prevent family members from terminating treatment for another.
What is the inquiry in any case where the state intervenes to prevent family members from cutting off treatment for another?
What was the intent of the person being treated with respect to terminating treatment? Family members can testify to this intent.
When is there a basis for an EP challenge?
Whenever the government draws a distinction among people.
What is the EP analysis?
1) What is the classification?
2) What level of scrutiny should be applied? (Learn the cases that get intermediate or strict scrutiny -- any other classification gets only rational basis review)
3) Does this law meet the level of scrutiny?
What constitutional provisions concern EP?
1) EP clause of 14th A applies ONLY to state and local governments. The 14th A NEVER applies to the federal government.
2) EP is applied to the federal govt through the DP clause of the 5th A.
How can you determine the existence of a classification?
1) The classification is on the face of the law; or
2) If the law is facially neutral, there is both a discriminatory intent for hte law and a discriminatory impact to the law.
What types of classifications get strict scrutiny?
1) Race
2) National Origin
3) Alienage - generally
4) Travel (but not foreign travel)
5) Voting
What types of classificaitons get intermediate scrutiny?
1) Gender
2) Illegitimacy
3) Undocumented alien children.
What types of classifications get rational basis?
1) Alienage classifications related to self-government and the democratic process;
2) Congressional regulation of aliens
3) Age
4) Handicap
5) Wealth
6) All other classifications
What is always a race-based EP violation?
Discriminatory use of peremptory challenges based on race denies EP. Doesn't matter whether criminal or civil case; doesn't matter whether its prosecutor, P, or D - always EP violation.
How are racial classifications benefiting minorityes treated?
1) Strict scrutiny is applied.
2) Numerical set-asides require clear proof of past discrimination;
3) Educational institutions may use race as one factor among many in admissions decisions to help minorities but they cannot set aside slots for minorities or add points to applicants admission scores SOLELY on the basis of race.
4) Seniority systems may not be disrupted for affirmative action.
What is the scrutiny level used in gender-based classifications?
It is intermediate scrutiny; but in VMI, SC added another requirement - gender discrimination will be allowed only if there is "an exceedingly persuasive justification."
What always denies EP on gender grounds?
Discriminatory use of peremptory challenges based on gender.
How should gender classifications benefitting women be treated?
1) Intermediate scrutiny is the test. There are also som more specific rules to know:
2) Gender classifications benefiting women that are based on role stereotypes wll not be allowed;
3) Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed.
What are the exceptions to the general rule that strict scrutiny is applied to alienage clasifications?
1) Only a rational basis test is used for alienage classifications that concern self-government and the democratic process;
2) Only a rational basis test is used for Congressional discrimination against aliens;
3) It appears that intermediate scrutiny is used for discrimination against undocumented alien children.
Whate areas may government discriminate against aliens with regard to under the democratic process exception?
1) Voting;
2) Serving on jury;
3) Being a police officer (responsible for enforcing the laws of our country);
4) Being a teacher (responsible for inculcating democratic values in our youth); or
5) Being a probation officer (like police officers).
What area may the government NOT discriminate againts aliens with under the democratic process exception?
Can't have requirement that notary publics be citizens b/c they do not play a role integral to our self-government and the democratic process.
May the state require that children of undocumented aliens pay for education when children of documented aliens and citizens get a free education?
What is the general rule with respect to discrimination against non-marital children?
Laws that deny a benefit to ALL non-marital children, but grant it to ALL marital children are unconstitutional.
Where law provides a benefit to SOME non-marital children that it denies to OTHER non-marital children, law may or may not be upheld under intermediate scrutiny - case by case analysis.
What is the rule with respect to age discrimination?
Mandatory retirement laws are OK (rational basis only)
What is the rule with respect to disability discrimination?
Only rational basis, but one of the few cases where court actually struck down law while purporting to use rational basis.
What is the rule with respect to sexual orientation discrimination?
Only rational basis, but one of the few cases where court actually struck down law while purporting to use rational basis.
What are the fundamental rights protected under EP clause?
1) The right to travel
2) The right to vote
What is not a fundamental right under the EP clasue?
The right to education.
What rules apply to protection of the right to travel under EP?
1) Laws that prevent people from moving into a state must meet strict scrutiny
2) Durational residency requirements must meet strict scrutiny
3) Restrictions on foreign travel need meet only the rational basis test. (No fundamental right to int'l travel)
What is the maximum allowable durational residency requirement for voting?
50 days.
What rules apply to the prorection of the right to vote under EP?
1) Laws that deny some citizens the right to vote must meet strict scrutiny
2) One-person-one-vote must be met for all state and local elections
3) At-large elections are constitutional UNLESS there is proof of a discriminatory purpose
4) The use of race in drawing election district lines must meet strict scrutiny;
5) Counting uncounted votes without standards in a presidential election violates EP.
What types of laws denying some citizens the right to vote are unconstituaionl?
1) Poll taxes are unconstitutional'
2) Property ownership as a condition for voting or holding public office is almost never allowed (ONLY time where property ownership requirement has been upheld is in water district election)
3) Unconstitutional to require that in order to vote in school district elections, must either have children in schools, or own property .
What does one person one vote mean?
Means for any elected body, all districts must be about equal in population. NOTE: voter approval does NOT justify deviation from one person one vote.
What is an at large election?
Where all of the voters vote for all of the office-holders.
What is the 1st Amendment rule with respect to content-based vs. content-neutral restrictions on speech?
1) Content-based restrictions on speech generally must meet strict scrutiny.
2) Content-neutral laws burdening speech generally need only meet intermediate scrutiny.
What types of laws are content-based?
1) Subject matter restrictions (where the application of the law depends upon the topic of the speech);
2) Viewpoint restrictions (Where the application of the law depends upon the ideology of the message).
What is a prior restraint?
A judicial order or administrative system that stops speech before it occurs.
What are the rules with respect to prior restraints?
1) Court orders suppressing speech must meet strict scrutiny
2) The government can require a licence for speech 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.
What is the qualification on the rule regarding court orders suppressing speech?
Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it.
Are gag orders on the press to prevent prejudicial pre-trail publicity allowed?
What is vagueness?
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
What is overbreadth?
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
What is the rule with respect to fighting words laws?
They are unconstitutionally vague and overbroad.
What is the rule with respect to symbolic speech?
The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.
Is flag burning constitutionally protected speech?
Is draft card burning constitutionally protected speech?
Is nude dancing constitutionally protected speech?
Is cross burning constiuttionally protected speech?
Yes, UNLESS there is proof of intent to threaten or intimidate.
Are contribution and expenditure limits in election campaigns constitutionl?
Contribution limits are constitutional, but expenditure limits are unconstitutional.
Is anonymous speech constitutionaly protected?
What types of speech are unprotected or less protected by the 1st A?
1) Incitement of illegal activity
2) Obscenity and sexually-oriented speech;
3) Commercial speech;
4) Defamation
What is the rule with respect to speech and incitement?
The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
What is the test for proscribable obscene or sexually-oriented speech?
1) The material must appeal to the prurient interest (LOCAL, not national, standard);
2) The material must be patently offensive under the law prohibiting obscenity (law MUST delineate what constitutes obscene material);
3) Taken as a whole, the material must lack serious redeemin artistic, literary, political, or scientific value (NATIONAL, not local, standard)
What is the prurient interest?
Refers to a shameful or morbid interest in sex.
What is the rule with respect to errogenous zoning?
What is the rule with respect to child pornography?
May be completely banned, even if not obscene. BUT, in order to be considered child pornography, material must have used children in its production. Computer generated images of children, or adults who are child-like in appearance, will not suffice. Government may punish private possession of child pornography.
May the government punish private possession of obscene material?
May the government seize the assets of businesses convicted of violating the obscenity laws?
Yes. Doesn't matter how much their worth.
Is profane and indecent speech protected by the First A?
Generally, yes.
What are the excptions to protection of profane and indecent speech?
1) Over broadcase media
2) In schools
What rules apply to commercial speech?
1) False and deceptive ads are not protected by teh 1st A.
2) True commercial speech that inherently risks deception can be prohibited;
3) Other commercial speech can be regulated if intermediate scrutiny is met;
4) Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.
What rules apply to regulation of professionals' advertising?
1) Government may prevent professionals from advertising or practicing under a trade name
2) Government may prohibit attorney, in-person solicitation of clients for profit
3) The government may not prohibit accountants from in-person solicitation of clients for profit.
What are the defamation rules under the 1st A?
1) If P is a PUBLIC OFFICIAL OR RUNNING FOR PUBLIC OFFICE, P can recover for defamation ONLY by proving by clear and convincing evidence, the FALSITY of the statement AND ACTUAL MALICE, meaning that D knew the statement was false, or acted with reckless disregard of the truth.
2) If P is a PUBLIC FIGURE, P can recover for defamation by proving FALSITY of the statement AND ACTUAL MALICE;
3) If P is a PRIVATE FIGURE and the matter is of PUBLIC CONCERN, state may allow P to recover for defamation by proving FALSITY and NEGLIGENCE by D. But P may recover PRESUMED or PUNITIVE damages only by showing ACTUAL MALICE;
4) If P is a PRIVATE FIGURE and the matter is NOT OF PUBLIC CONCERN, P can recover PRESUMED or PUNITIVE damages WITHOUT showing actual malice.
Who is a public figure?
One who thrusts himself into the limelight and likely has access to the media to dispute the claims against him (e.g. celebrities)
What are the first amendment rules with respect to privacy?
1) The government may not create liability for the truthful reporting of information that was lawfully obtained from the government;
2) Liability is not allowed if the media broadcasts a tape of an illegally intercepted call if the media did not participate in the illegality and it involves a matter of public importance;
3) The government may limit its dissemination of information to protect privacy.
What are the different categories of public property with respect to speech?
1) Public forums
2) Limited public forums
3) Non-public forums
What is a public forum?
Government properties that the government is required to make available for speech. EX: Sidewalks and parks
What is the rule with respect to speech restrictions in public forums?
Government may restrict speech in public forums, but only if certain requirements are met:
1) Regulatioins must be subject matter and viewpoint neutral, or, if not, strict scrutiny must be met;
2) Regulations must be time, place, or manner regulations that serve important government purpose and leave open adequate alternative places for communication;
3) Government regulation of public forums need not use the lease restrictive alternative;
4) City officials cannot have discretion to set permit fees for public demonstrations.
What is a limited public forum?
(aka "designated public forums") - Government properties that the government could close to speech, but chooses to open to speech. EX: School facilities on evenings and weekends.
What is the rule with respect to speech restrictions in limited public forums?
Same rule as that for public forums - once government chooses to open forum to speech, must treat it like a public forum.
What are non-public forums?
Non public forums are governmenet properties that the government constitutionally can and does close to speech.
What are the key examples of non-public forums?
1) Military bases (even parts usually open to public)
2) Areas outside prisons and jails;
3) Advertising space on city buses (OK to permit commercial ads, but not political ads on city buses);
4) Sidewalks on post office property;
5) Airports (OK to prohibit solicitation of money in airports, BUT can't prohibit distribution of literature in airports -this part fails rational basis review);
What is the rule with respect to speech restrictions in non-public forums?
The governmenet may regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral.
What is the rule with respect to private property and speech restrictions?
There is no 1st A right of access to private property for speech purposes. (e.g. privately owned shopping centers)
What is the law with respect to laws that prohibit or punish group membership?
Must meet strict scrutiny. More specifically, to punish membership in a group, it must be proven that the person had:
1) Actual affiliation with group;
2) Knowledge of illegal activities of the group;
3) Specific intent to further illegal objectives of the group.
What is the rule with respect to laws that require disclosure of group membership?
Where such disclosure would chill association, these laws must meet strict scrutiny.
Are laws that prohibit a group from discriminating constitutional?
Yes, unless they interere with intimate association or expressive activity.
What is an example of where law would be struck down as involving intimate associations?
Intimate associations are things like small, intimate dinner parties - you can discriminate in who you invite.
What is an example of where discrimination is integral to the expressive message of the group?
Klan can exclude blacks;
Nazis can exclude Jews;
Boy Scouts can exclude gays.
What rules apply to the free exercise clause?
1) The free exercise clause cannot be used to challenge a neutral law of general applicability;
2) The government may not deny benefits to individuals who quit their jobs for religious reasons.

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