Con Law flashcards.txt

  1. Equal Protection Evaluation
    Ask: who is being treated different from whom? What "right" is being affected? Then, determine test (strict scrutiny, mid-level scrutiny, or rational review).
  2. EP - Strict Scrutiny Application
    Use strict scrutiny if it is a suspect class - race or national origin [and gender in MD]. Use strict scrutiny if the distinction/classification restricts or applies to the exercise of the fundamental right of travel or voting.
  3. EP - Mid level scrutiny Application
    Use mid-level scrutiny if the class is based on gender and illegitimacy.
  4. EP - Rational Review Application
    For all other distinctions or rights (beyond race, national origin, travel, voting, gender and illegitimacy), use rational review test. Examples are wealth, occupation, or rights.
  5. Due Process Evaluation.
    Ask: What liberty or freedom is being infringed? Is this a fundamental right (BFP [bodily, family, procreation) or another right (employment, education)? If fundamental right, then strict scrutiny. All others - rational review.
  6. Strict Scrutiny Test
    Law must be necessary (least restrictive alternative) for a compelling governmental interest. The burden is on the government. We should presume law is unconstitutional.
  7. Mid-Level Scrutiny Test for EP ONLY
    Law must be substantially related to an important governmental interest.
  8. Rational Review Test
    Law must be rationally related to a legitimate governmental interest. The burden is on the challenger. We should presume law is constitutional.
  9. Dormant Commerce Clause
    The Commerce Clause grants Congress the sole authority to regulate interstate commerce and under the Dormant Commerce Clause, a state may not discriminate against or substantially burden interstate commerce, without an important state interest.
  10. Test for Dormant Commerce Clause based on Geography
    The statute must pass the strict scrutiny test. (The state must have an important government interest with no non-discriminatory alternative). Exception: State can discriminate geographically under Market Participant Doctrine. (Does not apply to laws that regulate other private businesses).
  11. Test for Dormant Commerce Clause based on Geographic Neutrality
    If geographically neutral and the law does NOT excessively or unduly or substantially burden IC, then not in violation of Commerce Clause. If yes, the law must be justified by an important state interest.
  12. Article III Judges
    Article III judges are appointed by the president and then confirmed via Senate majority. They have life tenure, subject to removal by impeachment.
  13. Article I Judges
    Article I judges serve a limited purpose and tenure.
  14. Dormant Commerce Clause - Strict Scrutiny Test
    State must show: (1) an important governmental interest and (2) that no non-discriminatory alternative is available.
  15. Fully Protected First Amendment Speech
    Political, artistic, etc. (non-commercial or indecency, or FIDO) is all fully protected First Amendment Speech.
  16. Test for Content-Based [CB] Regulation
    CB + Public Forum [PF] (every place or no place): law is valid only if it passes strict scrutiny. CB + Non-PF: law is valid if it is reasonable, considering the purpose of the property (if viewpoint-based, less likely to be reasonable). CB + Limited PF + Viewpoint-Neutral: law is valid only if it is reasonable, considering purpose of property. CB + Limited PF + Viewpoint-Based: law is valid only if passes strict scrutiny.
  17. Test for Content-Neutral [CN] Regulation
    CN + PF (every place or no place): evaluate law as a time, place and manner restriction and the law is valid if: narrowly tailored to serve an important gov't interest & leaves alternate means to communicate. CN + Non PF/Limited PF: law is valid if reasonably serves property's purpose.
  18. Fighting Words
    Unprotected speech, like cussing or personal epithets that would cause a reasonable person to fight. Must be face to face. Not mere insult.
  19. Incitement to Violence
    Unprotected speech. Imminent threat of immediate violence to others. Not "mere advocacy" of illegal conduct.
  20. Defamation
    Unprotected speech. False statement of fact (not "mere opinion") which harms reputation. Public officials/figures must prove actual malice. Others must prove only negligence.
  21. Obscenity
    Unprotected speech. Use Miller test (average person, applying contemporary community standards, finds work, as a whole, appeals to prurient interest; the work depicts sexual conduct in a patently offensive way; the work, as a whole, lacks serious literary, artistic, political,scientific Value). Not mere nudity or obscene language.
  22. Commercial Speech
    Low-level protected speech. State can regulate or ban misleading or illegal commercial speech. Truthful speech can be regulated if it serves a substantial gov't interest and there is a "reasonable fit" between the regulation and substantial gov't interest.
  23. Nudity & Indecency
    Low-level protected speech. State can keep this away from kids but not keep adults from seeing. State can zone dity movies.
  24. Expressive Conduct or Symbolic Speech
    Regulation of "non-speech" element of conduct is proper if it serves important gov't interest, is unrelated to suppression of ideas, and is not greater regulation than necessary.
  25. Privileges & Immunities Clause of Art. IV
    State may not deprive a citizen of another state of the basic rights of citizenship. State can't keep out-of-stater from: owning property and making contracts and engaging in prive employment.
  26. Contracts Clause
    The Constitution does not allow States to enact laws which would invalidate previously signed contracts absent important public need.
  27. Standing
    Standing to challenge a statute requires that the plaintiff faces actual or imminent hamr fairly traceable to the government.
  28. Vagueness Rule
    The vagueness rule requres that a law gives a person of common intelligence notice of what is prohibited.
  29. Overbreadth
    The overbreadth doctrine holds that a statute that regulates speech and prohibits a substantial amount of protect speech is unconstitutional.
  30. Equal Protection
    The 14th Amendment (5th for federal government) limits the state government's ability to discriminate.
  31. Free Exercise Clause
    The First Amend (incorporated to the states through the 14th Amendment) limits the government's ability to inhibit religious practice. A generally applicable law does not violate the free exercise clause.
  32. Due Process Clause
    The Due Process clause limits the government's ability to interfere with a citizen's interest in life, liberty and property. If government wants to deprive you individually of liberty or property, must have notice and a hearing.
  33. Establishment Clause
    The Establishment Clause, which is found in the 1st Amendment and is incorporated to the states through the 14th Amendment, prohibits the government from establishing or favoring a religion. Use the Lemon PEE test.
  34. Lemon P.E.E. Test
    Does the law: have a secular Purpose? have a primary Effect that doesn't advance or inhibit religion? cause excessive Entanglement with religion?
  35. 8th Amendment
    The 8th Amendment prohibits governments from imposing excessive punishments.
  36. Taxpayer Standing
    A taxpayer does not necessarily have standing to sue solely on the basis of being a taxpayer. An exception is when the government is violating the Establishment Clause.
  37. Ripeness
    A case may only be brought if harm has occurred or is likely to and thus a case will not be decided if it is brought too soon. Courts will not issue advisory opinions.
  38. Mootness
    A case may not be brought too late. It must be alive throughout appeal. Exceptions: if subject matter is capable of repetition and evading review (i.e. abortion challenge).
  39. Political Question
    A political question is not an issue for court but for the President or Congress, so the Court will decline to hear such challenges. Areas where political questions arise: impeachment, expelling house member, amendments to the constitution, termination of treaties, and foreign affairs.
  40. Executive Agencies - Separation of Powers
    Congress cannot authorize department heads or appoint executive officials but can dictate who can appoint.
  41. Executive Privilege
    The executive privilege gives the president the privilege to keep secrets after balancing the need for security versus the need for the information.
  42. Presidential Immunity
    A president enjoys absolute immunity from personal damage for "official acts". This immunity does not apply to acts done before taking office.
  43. Impeachment
    A president, foreign judge, or other government official may be impeached. Impeachment may be done for treason, bribery, or other high crimes or misdemeanors. The House impeaches (indicts) with a majority vote and the Senate convicts with a 2/3 vote.
  44. Source of Power
    Congress must find a sour of power to enact laws because Congress has no police power (which is reserved for the States). Typically, the Commerce Clause is used as the source of power.
  45. Spending Power
    Congress may spend money for the general welfare but canont regulate for the general welfare. Congress may impose conditions on states in exchange for federal funds if it is reasonably related to the federal interest and it is pressure, not coersion.
  46. 13th, 14th, and 15th Amendments
    13th: outlaws slavery and its badges. 14th: due process & equal protection. 15th: cannotinfringe upon right to vote based on race.
  47. Federal Property
    Congress has authority over all federal property and this includes the right to regulate it.
  48. Congressional Immunity
    The speech and debate clause grants the legislatorimmunity for legislative acts or speeches on the floor of the House and Senate but not for speeches "off" the floor.
  49. 11th Amendment
    The 11th Amendment deals with authorizing damages against the states by Congress.
  50. Supremacy Clause
    Federal laws, regulations, and treaties will override state laws unless the state law supplements the federal law.
  51. Private Action
    A private party is not normally state action unless: operating an exclusive government function (company town or election), government requires or encourages action (not just permits it), the government helps the private party, or it's a joint venture.
  52. Bill of Attainder
    A law cannot punish an individual by name.
  53. Ex Post Facto
    A law cannot make a crime out of a completed action that was legal when done. A law cannot increase the penalty for an act done before the law.
  54. Takings Clause
    The government cannot take private property for public use without just compensation.
  55. Free Exercise of Religion & Belief
    The Government may ask about the sincerity of a belief but may not inquire as to the truth of the belief.
  56. Prior Restraint
    A prior restraint on free speech is a silencing before the communication occurs. It is presumed unconstitutional. Types are discretionary licensing, pre-publication review, and injunction.
Card Set
Con Law flashcards.txt
Con law bar prep cards