Con Law

  1. What is a Writ of Mandamus?
    It is an order by the court compelling an inferior official or court to do something.
  2. What does Marbury vs. Madison establish, and how does it accomplish it?
    It establishes judicial review, and Marshall did it by saying that since the constitution was the supreme law of the land, and the judges took an oath to uphold it, then judges must review laws to determine whether they violate the constitution.
  3. What is the supreme court in regards to the constitution, and why?
    The court are the final arbiters of the constitution, and this is becaue if the states were instead final arbiters, the constiution would mean something different in every state.
  4. What is the constitution, and what is it's purpose.?
    A list of rights and restrictions, the groundwork of the government. It's purpose is to limit the government, say what it can and cannot do.
  5. What does the federal judiciary have the power to hear, and what gives it this power?
    Under Article 3 of the constitution, the judiciary has the power to decide enumerated cases and controversies. The scope of this power includes declaring the meaning of federal law, declaring the constitutionality of federal and state laws, the acts of federal and state officials.
  6. What does article 3 provide?
    • Section 1 vests judicial power
    • Secton 2, cl 1 eumerates the cases and controversies over which judicial power extends
    • Secton 2, cl 2 outlines original and appellate jurisdiction.
  7. What court case gave the SCOTUS the power to review state court decisions?
    Martin vs. Hunter's Lessee.
  8. What decision gave the court power to review the actions of state officials?
    Cooper v. Aaron.
  9. What did Ex Parte McCardle do?
    Established that the congress has the power to limit the supreme court's appellate jurisdiction.
  10. What is the political questions doctrine?
    It says that questions that are committed to another branch or those which the judiciary cannot or should not decide are nonjusticable.
  11. What are the two main ways political questions doctrine arises?
    Either court is not competent to decide the case, or the constitution puts the responsbility for the issue elsewhere.
  12. What are the two different catergories of political questions?
    Textual- The text of the constitution says another branch should decide, or prudential- the court lacks judicially discoverable or managable standards to decide the issue.
  13. What's the major textual commitment political questions case?
    Nixon vs united states. Constitution said senate had "sole" authority to try impeachments in Art 1, sec 3, so court couldnt' say what trial should be.
  14. What are the two major prudential concerns political questions cases?
    Vieth v. Jubelirer: No standards to determine whether gerrymandering was occuring.

    Baker v. Carr: Creates the major political questions standards
  15. what are the Baker v. Carr standards?
    • Lack of judicially managable standards
    • Respect for decisions of political branches
    • Foreign affairs
    • Beggining and end of hostilities
    • Termination of treaties
    • Dispute between coequal branches
  16. What are the two ways congress can control judicial power?
    Not create or remove lower courts, and make exceptions to the supreme court's appellate jurisdiction.
  17. What are the prerequisites to judicial review?
    • Must be a final decision
    • Must be an issue of federal law (must have been preserved)
    • Must not be adequate and indepentant state grounds for the decision.
    • Issue must have been duly raised.
  18. What is the rule of Michigan v. Long?
    Unless there's a clear statement, the court assumes there is no adequate and indepentend grounds for the challenge.
  19. What is the structure of article 1?
    • S1: Vesting of federal legislative powers
    • S8: Enumerates federal legislative powers
    • S9: Federal limitations
    • S10: State limitaotins.
  20. What is the necessary and proper clause?
    The major source of implied power and elasticity for enumerated powers, it says that congress may do whatever is necessary and property to carry out it's powers.
  21. What are some of the important enumerated powers of Art 1, Sec 8
    • Cl 1: Tax and spend for general welfare and common defense
    • C3: Regulate commerce with foreign nations, and among the several states and indian tribest (Commerce clause)
    • C11: Declare War
    • Cl2 and 13: Raise and support army and navy
    • Cl 18: Make all laws which shall be necessary and proper for carrying into execution the foregowing powers
  22. What are some key federal limitations?
    • No suspending habeus corpus except in rebellion or invasion
    • No bills of attainder or ex post facto laws
    • no tax on exports from state to state.
  23. What are some important state limitations?
    • No laws imparing obligations of contracts
    • No duties on imports or exports
    • No agreements or compacts with foreign powers.
  24. Explain McCulloch v. Maryland
    The constitution doesn't limit congress to expressly delegated powers, and the necessary and proper clause is a power for congress to do that which is convenent, useful, or essential to enforce the powers that it does have, so long as their ends were legitimate and within the constitution's scope. Therefore, Congress had the power to create the federal bank.
  25. Explain Gibbons vs. Ogden:
    Congress has the power to control any commercial intercourse that concerns more than one state, and commerce within a particular state that may conern more than one state. Commerce entirely intrastate, without interstate effects, is beyond commerce power. Commerce includes navigation. Two ferrys case.
  26. What did the Daniel Ball case say?
    Something can be an instrument of interstate commerce, even if it doesn't ever operate outside the state. When c commodity has begun to move from one state to another, commerce has commenced. No meaningful distinction between instrument that goes between two states and one confined to single state. Boat in Michigan case.
  27. Explain the cases that expanded the commerce clause originally?
    The lottery case: Regulation of tickets was ok, because tickets are instrumentalities of interstate commerce (things moving in interstate commerce) and the commerce clause's regulation power also includes the power to prohibit.

    Hoke v. US: The mann act (immoral purposes women over interstate lines) case says congress has power over transportation between states, adn that may have the quality of police power.

    Shreveport Rate case: Commerce clause was intended to prevent state discrimiation against interstate trade, and authority over instrumentalities of interstate commerce includes the right to regulate matters with "close and substantial relation" to interstate traffic. Congress may use all necesary and appropriate measure to protect interstate commerce on the channels of interstate commerce. .
  28. What was the first court case to shrink the commerce power?
    Hammer v. Dagenhart: Attempt to regulate child labor by taxing manufacturing of child made goods. Court said no, because manufacturing is not interstate commerce and the states had regulation power over it in their zone of activities.
  29. What was the schecter poultry rule?
    It said that things that had come to rest in commerce (chickens in this case) could not be regulated by the commerce clause.
  30. What did the Carter Coal Case say?
    Production is a purely local activity, not within the scope of the commerce clause, even if it will later be in the stream of commerce.
  31. What was the first major case to revive the commerce clause, and what did it say?
    NLRB vs. Jones: Allowed congress to control intrastate activities with a substantial affect to interstate commerce.
  32. What was the rule of US v. Darby:
    Manufacturing is not interstate commerce, but the shipment of goods interestate is subect to regulation, and prohibiting shipments of goods produced under substandard labor conditions was withing the commerce clause because it prevented unfair competiton.
  33. What rule came from Wickard v. Filburn?
    The aggregation theory: Congress may regulate an individual instance of an activity that though trivial by itself would have an effect on interstate commerce in the aggregate.
  34. What is the court's standard for the congress's regulator scheme in terms of commerce clause legislation?
    It must have a rational basis for the scheme, and if it does, the investigation is at an end.
  35. What two modern cases again limited the commerce clause?
    Lopez: Gun regulation, no connection to commerce, no connection between punishment and interstate commerce in the statute, no findings to substantiate effects on interstate commerce, connection was tenuous at best.

    Morrison: Gender motivated crimes of voilence are not economic activity. Uses Lopez test (Non economic nature, no substantial effect on interstate commerce, No congresional findings, weak connection between statute and any commerce)
  36. What rule did Gonzales v. Raich create?
    The class of activities rule: Congress can regulate a class of activities that are commercial in nature, such that they effect interstate commerce.
  37. What can congress use the commerce clause to do today?
    Regulate channels of interstate commerce, instrumentalities of intersate commerce (persons and things), intrastate econoimc or commercial activities that substantially affect interstate commerce (aggregation or class of activities theoryies)
  38. What are the four primary powers of government?
    Taxing, Spending, regulator, proprietary.
  39. Where does the taxing power come from?
    Article 1, Sec 8

    Cl 1: Power has the power to lay an collect taxes, duties, imposts and excises.

    Also sixteenth amendment: income tax.
  40. What was the Lochner era rule about taxing?
    If a tax had a purely regulatory purpose, it wasn't allowed, because it became a penalty.
  41. What was the first case to open up the congress's spending clause?
    Steward Machine Co v. Davis: Said that as long as some general welfare connection can be drawn between the exercise of the tax and the legitimate general welfare purpose, it's ok. General welefare is never really defined.
  42. What four requirements did South Dakota v. Dole lay out for conditionally spending federal funds?
    • Spending must be for the general welfare
    • Condition must be unambiguious, so states know what the consequences of their participation are
    • Conditions may be illegitimate if unrelated to federal interest
    • Other constituional violations can't bar the conditional spending.
  43. What is the rule of treaties?
    Comes from A2S2C2: President has pwoer to make treaties,s ubject to concurrance of 2/3rds of senate, so if the treaty is valid, no dispute over validity of statute as necessary and proper means.
  44. What is the 10th amendment balancing test?
    The court balances state soverignty against the federal interest in the issue.
  45. What did Printz vs United States say?
    Congress cannot commandeer executives of the states to complete their tasks for them, can't turn them into dummies of a ventriloquist congress. That's a violation of 10th amendment.
  46. What's the rule of Reno vs. Condon?
    the congress can prohibit states from acting and not violate the 10th amendment.
  47. What is the main concept of seperation of powers?
    The powers of the federal branches will be seperated to a bustantial degree, and the powers of each branch will act as a check on the others.
  48. What are the two approaches to dealing with seperation of powers problems?
    Formalism: Strict seperatio of roles and duties of each breanch as specificed in the constition.

    Functionalism: Allows more blending of powers in the intrest of effect administration; key is powers should be effecitve sepereated, and essential checks and balances are preservered.
  49. What are the major sources of executive power?
    • A2S1C1- The executive power shall be vested in the president
    • 221- Commander and chief of army, etc.
    • 222-Make treaties, appoint ambassadors and justices and other officers. (Congress may vest power to appoint inferior oficers in president, judiciary, or department heads)
  50. Discuss the two major opinions from Youngstown Sheet and Tube
    Black: Authority of president acts must be derived from constitution or act of congress.

    • Jackson: 3 catergories: Congress says yes: Most power, all president and congress power.
    • Congress says nothing: Middle power, all president's power.
    • Congress says no: Least power, all president power minus congress power.
  51. What did US vs. CurtisWright say?
    Foreign affairs powers are inherent in the soverign, and he need not rely on the constition for them.
  52. What's the major war powers case?
    The prize cases, in which the president tried a blockade. Inconclusive: Congress has power to declare war, but war may exist undeclared, and the president may act against that war.
  53. What's the official rule of delegation of powers, and what are the implied and express modern delegation rules?
    Offiicial: Improperty designating legislative power to executive is forbidden.

    Express delegation: Valid unles arbitrary, capricious, or manifestly contrary to statute.

    Implied: Regulations valid if they meet a reasonableness standard.
  54. What happened in INS vs. Chada?
    The House acted independently in a legislative capacity, ignoring the presentment clause that said that they must pass laws before both houses of congress. It was legislative veto that didn't follow the rules.
  55. What occured in Clinton vs. New York?
    Line item veto case: Giving president ulinateral power to change text of law was giving him more power in enacting statutes than the constition, therefore, unconstituional.
  56. What case says house or senate appointments are forbidden?
    Buckley v. Valeo
  57. What is executive privlidge and immunity?
    It's an inherent presidental power that says that he has no civil liability for his acts as president.
  58. What does Nixon vs. United states (presidential) say about executive privlidge.
    • Court decides whether it exists
    • Inherent in the executive
    • Not absolute, may be justifications to protect military, diplomatic, or security secrets, but the court balances need for confidentality against need for criminal justice.
  59. What is preemption?
    Acts of state legislatures that interfere with laws of congress are invalid because congress is supreme.
  60. What are the two types of implied preemption?
    Field preemption, where the scheme of federal regulation is so pervasive that congress left no room for states to supliment it, and conflict preemption, where compliance with both federal and state regulations is a physical impossiblity, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objective of congress.
  61. what does the dormant commerce clause mean?
    States are prohibited from unreasonably interfering with, or discriminating against intersate commerce.
  62. What are the two ways dormant commerce clause arises?
    • States granting preferential treatment to their instate businesses,
    • States discriminating against out of state businesses.
  63. What is the key question in modern analysis of DCC?
    Is state discriminating against out of state interests, or are out of state and instate equaly treated?

    If discrimiating facially, per se rule of invaldity or strict scruitny.

    If not discriminating facially, Pike balancing test of burden upon intersate commerce against local benefit of the law.
  64. What is the rule of Dean Milk v. Madison
    During a pike balancing test, if there are reasonable and adequate alternatives avaliable that would be less intrusive, then even the local interest's legitimacy doesn't matter.
  65. What's the environmental protection rule of DCC?
    If your legitimate local protectionary purpose cannot be served by avaliable nondiscrimantory alternatives, then you can discriminate and not violate DCC. Maine v. Taylor.
  66. What is the Market participant exception of the DCC?
    When a state acts as a market participant and not as a regulator, DCC does not apply. May favor in state intersts over out of state intersts.
  67. What did Hughest v. Alexandria say about DCC?
    When a state acts as a market participant, it may favor it's own citizens. In this case, it was in the market of buying cars.
  68. What is the limit of market participation?
    You cannot also act as a regulator of that industry. If you are a market particpant, you must only be a market participant.
  69. What does the privledges and immunities clause say?
    4-2-1, states can't discriminate against the citizens of another state unless it's substantially related to achieving an important or significant state interest. 2 party analysis: Does state burden a protected privledge (Mayor of Camden)? Can state justify the discrimination?
  70. What does the contract clause say:
    1-10-1: No state shall pass any law imparing obligations of contracts. Exception is when it's reasonable and necessary to serve an important public function.
  71. What are the blaisdell factors to the contracts clause?
    • 1- does it deal with broad social problem?
    • 2- is it an area already subject to state regulation?
    • 3- is it merely a temporary alteration of contractual relationships?
  72. What are the three major points of justicability?
    • Standing:Proper party to litigate?
    • Mootness: Does actual controversy still exist?
    • Ripeness: Is review premature?
  73. What's the rule of advisory opinions?
    Court will only hear actual cases and controversys, no advisory opinions will be made.
  74. What are the standing requirements?
    • Plantiff must have significant stake in controversy
    • Rights claimed to be violated. (can't merely be general claim, e.g. tax payer sues congress for spending too much, wasting their money.)
  75. What are the exceptions to taxpayer standing?
    • Taxpayers may sue to overturn tax that violates establishment clause (Flast v. Cohen)
    • May sue city for cities tax expenditures
    • can possibly sue state for state tax espenditures.
  76. What's the organization rule for standing?
    • An organization may sue for a member if
    • -the member woudl have had standing in their own right
    • -the interests asserted by organization are related to organization's purpose
    • The case can't be one which requires the individual participation of memebers.
  77. What's the first amendment exception to standing?
    If a statute could constitionally be applied to planitff's conduct but might unconstitionally restrict the expression of some other person not before the court, the court may hear the case.
  78. What is injury in fact?
    • Suffered injury
    • Injury is concrete and individuated
    • Action being challenged is cause in fact of the injury.
  79. What are the two sub requirements of standing:
    • challenged action must be but for cause of injury
    • must show that faorable decision will redress the injury.
  80. What is the big case on standing?
    Allen v. Wright.
  81. What is mootness?
    A case that was a live controversy at the time it was raised, but events after the finling have deprived litigant of a stake in the controversy.
  82. What's the major mootness case?
    DeFunis v. Odegaard.
  83. What's the mootness exception?
    • Capable of repitition but evading review (Roe v. Wade)
    • Voluntary cessation: Defendant has decided to stop doing the bad act.
    • Collateral consequences: future consequences of the conviction remove mootness.
  84. What is Ripeness?
    A case not sufficently concere to yet be adjudicatet.
  85. What's the major ripeness case?
    United public workers v. Mitchell?
  86. What is abstention, and waht are the two kinds?
    • Abstaining from exercising jurisdiction for prudential and constitional reasons
    • pullman: abstain from exercising where resolution of a constitional issue turns on an unsettled issue of state law
    • younger: Federal courts abstain from issuing injunctinve relief in regard to pending state court criminal proceedings.
  87. Explain pullman abstention
    There must be a final court decision at the state level becoure the SCourt will hear.
  88. Explain younger abstention
    Will abstain ulness: there's a pending prosecution, bad faith or harrassment has occured, and relief is appropriate is there's flagrant violation of express constitutional proviosn.
  89. Explain 11th amendment:
    It bars suits against a state in federal court by any citizens of a state, other states, or foreign countries.
  90. Can congress abrogate 11th amendment immunity?
    • Yes, if theres:
    • 1. a clear expression of intent to abrogate
    • 2. a proper power source (usually 14thA, S5)
    • 3. Congruance with factual record of state violation of civil rights
    • 4. Remedy is proportional.
  91. What's the rule of Ex Parte Young?
    11th amendement does not apply to state officials, even in their capacity as such. They can be sued.
  92. When is a person's action's state action?
    When engaged in a government function, or whe the government has entangled with the private actor by authoirizing, encouraging, or facilitating the conduct
  93. What are the two questions for governmental functions being private actions?
    Has the private actor engaged in conduct exclusively and traditionally performed by the government? (Marsh)

    Has the government actively ahthorized, encouraged, or facilitated the conduct? (Reitman)
  94. What alone is not state action?
    Subsidies alone (Rendell-baker) Regulation alone (moose lodge) Monopoly alone (Jackson)
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Con Law
Cooley Con Law