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Bar Study > Con Law > Flashcards

Con Law Flashcards

Learn con law

1
Q

Strict scrutiny

A

A law will be upheld only if: it is necessary to achieve a compelling government purpose.

Burden of proof on government.

Applies to fundamental rights and suspect classifications.

For suspect classifications, must show intent: Whether a law targets a suspect classification can be seen (1) on its face, or (2) in how a neutral law is applied, or (3) if the neutral law had a discriminatory motive.

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2
Q

Intermediate scrutiny

A

A law will be upheld only if: it is substantially related to an important government purpose.

Applies to quasi-suspect classifications (gender).

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3
Q

Rational basis

A

A law will be upheld if: it is rationally related to a legitimate government purpose.

Burden on plaintiff.

Applies to all legislation affecting unprotected classes: disability, age, wealth, etc.

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4
Q

How to show a law discriminates against a suspect or quasi-suspect class? I.e., how to show that strict or intermediate scrutiny should be applied in the first place?

A

To apply strict or intermediate scrutiny, P must show INTENT to discriminate. Shown by:

(1) the law is facially discriminatory
(2) the facially neutral law is applied in a discriminatory manner
(3) there is a discriminatory motive behind the law (hard to prove and discriminatory results alone are not enough).

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5
Q

Affirmative action or “benign” government discrimination

A

Also triggers strict scrutiny.

A government act to remedy past discrimination will be upheld only if it is necessary to achieve a compelling government purpose. Remedying past discrimination is a compelling government purpose. But the discrimination must be persistent and identifiable, and not merely “society-wide.”

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6
Q

Federal versus state/local alienage classifications

A

When state or local government discriminates against aliens, apply strict scrutiny. The classification must be necessary to achieve a compelling government purpose.

When federal government discriminates against aliens, apply rational basis (because of Congress’s plenary power over aliens).

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7
Q

Level of scrutiny for state/local alienage classifications

A

Default rule: apply strict scrutiny. The classification must be necessary to achieve a compelling government purpose.

But for democratic/civic purposes, rational basis (teachers, police officers, running for public office, etc.).

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8
Q

Level of scrutiny for gender classifications

A

Intermediate scrutiny: the classification must be substantially related to an important government purpose. PLUS exceedingly persuasive justification.

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9
Q

Level of scrutiny for race classifications

A

Strict scrutiny: the classification must be necessary to achieve a compelling government purpose.

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10
Q

Level of scrutiny for alienage classifications

A

Strict scrutiny: the classification must be necessary to achieve a compelling government purpose.

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11
Q

Level of scrutiny for legitimacy of children classifications

A

Intermediate scrutiny: the classification must be substantially related to an important government purpose.

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12
Q

Level of scrutiny for age classifications

A

Rational basis

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13
Q

Level of scrutiny for wealth classifications

A

Rational basis

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14
Q

Level of scrutiny for disability classifications

A

Rational basis

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15
Q

Level of scrutiny for national origin classifications

A

Strict scrutiny: the classification must be necessary to achieve a compelling government purpose.

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16
Q

Level of scrutiny for laws interfering with fundamental rights

A

Strict scrutiny: the law must be necessary to protect a compelling government interest AND no less restrictive means to achieve this goal.

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17
Q

List of fundamental privacy rights

A

Marriage, contraceptives, procreation, abortion (pre-viability no undue burdens), parenting

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18
Q

List of fundamental rights

A

Privacy, vote, travel

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19
Q

Level of scrutiny re: content-neutral speech regulations

A

A type of intermediate scrutiny: the regulations must serve important government interests unrelated to the suppression of speech, and must be narrowly tailored.

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20
Q

Overbroad speech regulations

A

A speech regulation is overbroad if it punishes a substantial amount of protected speech in addition to its legitimate sweep. Overbroad speech regulations are facially invalid and may not be enforced against anyone.

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21
Q

Discretion re: speech regulations

A

A speech regulation that gives unfettered discretion in its implementation is facially invalid.

To be upheld, the regulations must have clearly defined standards.

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22
Q

Public forum definition

A

Public property that is historically open to speech activities. Streets, sidewalks, parks.

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23
Q

Designated public forum definition

A

Public property that is open to the public on a limited basis. Schools rooms open for community activities.

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24
Q

Permissible conduct regulations in public forums and designated public forums

A

Government may implement time/place/manner restrictions that:

(1) are content-neutral
(2) are narrowly tailored to serve important government interests (but need NOT be least restrictive means)
(3) leave open alternative channels of communication.

Important government interests, e.g., peace and quiet, etc.

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25
Q

Limited public forums

A

Public property that is not historically open to speech activities but temporarily opened for that purpose. E.g., school gym open for political debate.

Speech regulations are allowed to reserve the forum for its intended use, and must be (1) viewpoint neutral and (2) reasonably related to a legitimate government purpose.

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26
Q

Nonpublic forums

A

Government property that is not historically open to speech activities and not held open for speech activities. E.g., military bases, sidewalks outside post offices.

Speech regulations are allowed to reserve the forum for its intended use, and must be (1) viewpoint neutral and (2) reasonably related to a legitimate government purpose.

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27
Q

List of general categories of unprotected speech (i.e., the government has a compelling interest in preventing the following forms of speech).

A

Inciting illegal acts, fighting words, obscenity, some defamation, some commercial speech

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28
Q

Regulations re: commercial speech

A

Default rule: Commercial speech is afforded 1st Am protection.

But government can outlaw commercial speech that proposes illegal activity or is misleading/fraudulent.

Any other commercial speech regulation must:

(1) serve a substantial government interest,
(2) directly advance that interest, AND
(3) be narrowly tailored (least restrictive means NOT required).

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29
Q

Regulations re: prior restraints

A

A prior restraint will only be allowed if it is to prevent a “special societal harm.” The government has burden to show this.

The procedure of the restraint must:

(1) have narrowly drawn, reasonable, and definite standards,
(2) require a prompt injunction, AND
(3) require a prompt and final determination of the restraint.

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30
Q

Test re: government employee speech not pursuant to official duties

A

Matter of public concern versus not:

If the speech was on a matter of public concern, there is a balancing of individual speech rights to employer rights to have efficient service.

If the speech was NOT on a matter of public concern and disruptive, highly deferential to government employer in having an efficient work environment.

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31
Q

Test re: government employee speech pursuant to official duty

A

If an employee makes speech on the job and pursuant to official duties, the employer may punish the employee.

Does not matter whether matter of public concern.

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32
Q

Can a law that had nothing to do with religion for its adoption be challenged on Free Exercise grounds?

A

No. The Free Exercise Clause can only be used to challenge government regulation that was specifically designed to interfere with religion.

The FEC also does not require religious exemptions from generally applicable laws.

33
Q

Test re: Establishment Clause challenges

A

Lemon Test:

Government action is invalid UNLESS:

(1) the action has secular purpose; and
(2) the action’s primary effect neither advances nor inhibits religion; and
(3) the action does not produce excessive government entanglement with religion.

34
Q

Test when Congress is regulating intrastate ECONOMIC activity

A

The law will be upheld if there is a rational basis on which Congress could conclude that the activity, in aggregate, substantially affects interstate commerce.

35
Q

Test when Congress is regulating intrastate NON-economic activity

A

The law will only be upheld if Congress can show a direct substantial effect on interstate commerce.

36
Q

Is government speech subject to the First Amendment?

A

No. The First Amendment restricts government regulation of private speech; it does not address or limit government speech.

Example: placing a statue on a public land does not implicate any First Amendment protections.

37
Q

Definition “content neutral regulation”

A

Means the regulation is neutral as to subject matter and viewpoint.

38
Q

Level of scrutiny re: speech regulations based on content

A

Type of strict scrutiny: violates the First Amendment UNLESS it is NECESSARY to serve a COMPELLING state interest.

39
Q

A private individual suing for defamation related to a matter of public concern

A

P must show (1) defamatory language, (2) about P, (3) publication, (4) damaging to reputation. If P a public figure or concern, then (5) falsity and (6) fault.

“Fault” here means NEGLIGENCE, i.e., not taking reasonable steps a reasonable person would take to assess truth or falsity of statement.

40
Q

Overbroad speech regulations

A

If a regulation punishes a SUBSTANTIAL AMOUNT of protected speech in addition to its plainly legitimate sweep, then the regulation is facially invalid and cannot be enforced against anyone (unless a court has construed the regulation to narrow it).

If a regulation does NOT punish a SUBSTANTIAL AMOUNT of speech in addition to its plainly legitimate sweep, then it CAN be enforced with respect to the plainly legitimate sweep.

41
Q

Freedom of press and criminal trials/proceedings

A

First Amendment protects right of journalists and public to attend criminal trials.

A judge MAY restrict journalist access only in the case of a child sex abuse witness.

A criminal PRETRIAL proceeding may be restricted to the press if the closure is (1) essential to preserving a higher value and (2) is narrowly drawn.

42
Q

Supreme Court definition of obscenity

A

A description or depiction of sexual conduct that, taken as a whole, by the average person applying contemporary community standards,

(i) Appeals to the prurient interest in sex [judged by LOCAL community standards],
(ii) Portrays sex in a patently offensive way [judged by LOCAL community standards], and
(iii) Does not have serious literary, artistic, political, or scientific value [judged by NATIONAL community standards].

43
Q

Categories of unprotected speech

A

(1) Words that create a clear and present danger of inciting illegal activity. Prosecution must show (1) the speaker intended to cause the danger, and (2) the danger was likely to occur.
(2) Fighting words (personally abusive language that is likely to invite immediate physical retaliation by an ordinary person) and true threats (e.g., cross burning with INTENT TO INTIMIDATE).
* But fighting words statutes will NOT be upheld if they are to protect against words directed at certain classes of victims because they are then based on viewpoint, and regulations based on viewpoint are not valid.

44
Q

Tests for content-neutral speech regulations versus content-based speech regulations

A

Content-neutral speech regulations: a type of intermediate scrutiny: the law will be upheld if it (1) furthers important interests that are not related to the suppression of speech, and (2) does not burden more speech than is necessary to advance such interests.

Content-based speech regulations: a type of strict scrutiny: the law will be upheld only if it is (1) necessary to serve a compelling state interest and (2) is narrowly drawn to achieve that purpose.

45
Q

Test for how a state can regulate in ways that impact interstate commerce in non-discriminatory way

A

(1) the regulation does so only indirectly and (2) the benefits outweigh the burdens imposed by compliance with the regulation.

46
Q

Congress can delegate powers to the executive if

A

(1) Congress itself has the power in the first place, and (2) the delegation has “intelligible principles”

47
Q

When will a prior restraint re: criminal trial be allowed

A

Only if it is the ONLY way to ensure a fair trial for the defendant

48
Q

When someone can sue on behalf of someone else

A

Third-party standing requires the person suing have standing and either (1) it’s difficult for the third-party or (2) a special relationship between the person suing and third-party.

49
Q

When an organization can sue on behalf of its members

A

(1) there is an injury in fact to the members, (2) the injury is related to the organization’s purpose, AND (3) the lawsuit does not require the individuals’ participation.

50
Q

How does the General Welfare Clause operate?

A

Congress can tax and spend money to directly support the general welfare, but it cannot directly legislate activity for the general welfare.

51
Q

Who appoints principal officers and inferior officers?

A

The president must appoint principal officers by Senate approval.

Everyone other than Congress itself may appoint inferior officers, no Senate approval necessary.

52
Q

Hierarchy of treaties/exec agreements versus state law/federal law/constitution

A

Constitution at top

Treaties and federal law – last in time controls

Executive agreements

State law

53
Q

Congress can tax and regulate state and local governments if

A

The tax or regulation applies to private entities as well (e.g., minimum wage laws, etc.)

54
Q

State government taxation/regulation of the federal government

A

Direct taxation/regulation: not allowed.

Indirect taxation/regulation: allowed if non-discriminatory and not unreasonable burden on federal government (e.g., state income tax on federal employees).

55
Q

Art IV Privileges and Immunities Clause protects who from what

A

Protects nonresidents of a state from intentional discrimination by the state related to fundamental rights, which includes commercial activity and civil liberties. Does NOT protect corporations or aliens.

Narrow exception: The state government has a substantial justification and no less restrictive means.

56
Q

Dormant commerce clause rule and exceptions re: discriminatory laws/regulations

A

States cannot discriminate against interstate commerce to protect local economic interests.

Exception 1: such a law is okay only if it furthers an important, non-economic state interest AND there are no reasonable non-discriminatory alternatives. (E.g., banning importation of a thing that directly harms a natural resource of the state.

Exception 2: when the state is acting as a market participant (e.g., when buying, selling, hiring, or giving subsidies).

Exception 3: the economic activity relates to traditional government functions (trash pick up companies).

57
Q

Who can sue under dormant commerce clause versus Art IV Privileges and Immunities Clause?

A

Dormant commerce clause: everyone who has standing (including corporations, aliens, citizens of either state involved)

Art IV Privileges and Immunities: only citizens.

58
Q

Dormant commerce clause rule re: non-discriminatory laws

A

General balancing test: A non-discriminatory law (that treats local and out-of-state interests the same) that burdens interstate commerce is valid UNLESS the burdens outweigh the promotion of legitimate local interest.

Court may look at whether less restrictive alternatives are available.

59
Q

What MIGHT be violated by a state law that imposes higher taxes on business by non-citizens (i.e., discriminatory taxes)?

A

The Dormant Commerce Clause, the Art IV Privileges and Immunities Clause, and the Equal Protection clause

60
Q

Non-discriminatory state taxes will be upheld if

A

Non-discriminatory state taxes will be upheld if there is:

(1) a SUBSTANTIAL NEXUS between the activity taxed and the state (but physical presence not necessary); AND
(2) the tax follows a RATIONAL FORMULA; AND
(3) the tax is FAIRLY RELATED to services and benefits provided by the state.

61
Q

Can a state tax commodities in the court of interstate transit? Can a state tax an instrumentality of interstate transit (i.e., an airplane or truck)?

A

If the final destination is not in the state, then no. Commodities in interstate transit are entirely exempt from state taxation.

A state can tax an instrumentality if the instrumentality establishes (1) TAXABLE SITUS (which means it receives benefits or protections of the state), AND (2) the tax follows a RATIONAL FORMULA.

62
Q

Scope of Congress’s power under Sec. 5 of 14th Amendment

A

Congress can only use Sec. 5 to enforce rights provided BY THE 14TH AMENDMENT. And Congress cannot ADD to those existing rights.

It can only use Sec. 5 to enforce rights that are (1) recognized by the courts, that (2) relate to an actual history of discrimination, and (3) with legislation that is congruent and proportional.

63
Q

How can Congress prohibit discrimination by private actors?

A

Under Commerce Clause power

64
Q

What governments (state/local/federal) are covered by the Contracts Clause? What is the Contract Clause analysis?

A

Only state/local. It does not regulate the federal government. It covers contracts already in existence.

Private Contracts: INTERMEDIATE scrutiny: a state law that SUBSTANTIALLY IMPAIRS an existing private contract is invalid unless it (1) serves an IMPORTANT and LEGITIMATE public purpose, and (2) is reasonable and narrowly tailored to further that interest.

Public Contracts: STRICT-ER scrutiny. Not clear, but Court has said they would be more skeptical of these.

65
Q

General protection by the Takings Clause

A

A private property may not be taken for public use without just compensation.

“Public use” = like rational basis: the taking must be rationally related to a legitimate public purpose.

66
Q

Takings versus regulations analysis re: Takings Clause

A

Takings require compensation. Regulations do not require compensation.

A physical invasion or appropriation = Taking

A PERMANENT regulation that denies ALL economic value = Taking

A TEMPORARY regulation that denies ALL economic value during the regulation = Maybe taking, court will weigh everything.

A regulation that DECREASES ECONOMIC VALUE = is NOT a taking if there is an economically viable use for the property. Court looks at (1) social goals the government is promoting, (2) the diminution in value to the owner, (3) whether the regulation substantially interferes with the economic expectations of the owner.

67
Q

Remedies available under Takings Clause

A

If the government actually takes the property: pay the owner just compensation (fair market value to the owner at the time of the taking).

If not a physical taking but a regulatory taking: owner might be entitled (1) to full fair market value of property (if appropriate), or (2) termination of the regulation and payment of damages to the owner for losses incurred while the regulation was in effect.

68
Q

Art IV Privileges and Immunities Clause discrimination rule and exception

A

Protects against discrimination of out-of-state residents re: fundamental rights

Exception: The discrimination is allowed if (1) it’s closely related to a substantial state purpose and (2) less restrictive means not available.

69
Q

When can the government restrict a speaker before a crowd at a demonstration?

A

ONLY IF the police are ABSOLUTELY unable to control the crowd.

70
Q

A zoning ordinance restricting adult bookstores to only certain areas of a city are allowed if:

A

A zoning ordinance restricting adult bookstores to only certain areas of a city are allowed if:

(1) the ordinance promotes substantial government interest (property values count); and
(2) the ordinance does not prohibit ALL such materials throughout the city.

71
Q

In a public forum, how can non-communicative aspects of speech can be regulated like speech-related conduct (e.g., littering or flag burning)

A

Can be regulated and punish if

(1) furthers important government unrelated to speech
(2) is narrowly tailored
(3) alternative means of communication are allowed.

72
Q

Are curriculum-based school activities public forums or non-public forums?

A

Example: school newspaper

Non-public forum.

73
Q

How can curriculum-based school activities be regulated based on content?

A

If (1) the regulation is viewpoint neutral and (2) it’s reasonably related to a legitimate public purpose.

74
Q

Level of scrutiny re: when government discriminates among religions?

A

Strict scrutiny: necessary to achieve a compelling government interest.

75
Q

Residency requirements for voting: level of scrutiny applied instances Court has observed

A

Strict scrutiny

  • 30 days can be okay if necessary to achieve a compelling government interest
  • Any longer will likely not be okay
76
Q

Loyalty oaths for government jobs

A

Government can require new hires to: (1) take oath to support constitution and (2) take oath to oppose violent overthrow of the government.

But CANNOT require new hires to take oath to respect the flag.

77
Q

Federal congressional districts versus state districts: equal protection

A

Federal congressional districts: Equal Protection requires almost mathematical equality.

State districts (applying to any kind of voting district for any kind of government office): Equal Protection requires not unjustifiable large variance. But this doesn’t apply to at-large elections.

78
Q

Commercial speech regulations

A

1st Amendment protections generally, except illegal activity and misleading advertising.

All other commercial speech regulations only okay if:

(1) substantial government interest
(2) directly advance
(3) narrowly tailored (need not be least restrictive means)

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