Bar-ConLaw

Question 1

Self Executing Treaties

Answer 1

Ca be implicit–effective without any implementation of Congress, or explicit–they say so

Self Executing Treaty has supremacy over conflicting state law

Question 2

Case and Controversy Requirement

Answer 2

There must be a real, live controversy at all stages of the suit.

Must be harm or imminent threat of harm ( a law that will harm you when it takes effect in 2 years is not imminent enough)

In a class action it is not neccesary for named plaintiffs to have viable case at all stages so long as some members have a live claim.

Question 3

Right to Vote

Answer 3

Comes under DP and EP

DP:

Fundamental–restrictions subject to strict scrutiny,

very short residency requirements (30 days) have been upheld bug longer ones have not.

EP: Cant have distrcits of different sizes–one person one vote—applies to elections at EVERY level. Not applicable when elections are at large.

Question 4

Right to Travel

Answer 4

Fundamental plus priv OR imm clause

Question 5

Art III, section 2

Answer 5

Supreme Court’s Original Jurisdiction: in all cases affecting ambassadors, other public ministers, and consuls, in which states is a party.

Question 6

In Parens Patriae

Answer 6

act as a rep of its citizens.

SCOTUS lacks jursidiction over cases brought in parens patriae

Question 7

Right to Education

Answer 7

NOT a fundamental Right

Question 8

Intergovernmental Immunity

Answer 8

State and local governments cannot tax or regulate the activities of the federal government. (or prosecute)

Question 9

Congress’s Spending Power

Answer 9

Congress may regulate states through its spending power by imposing conditions on the grant of money–such conditions will not violate the 10th merely because Congress lacked the authority to directly regulate the activity so long as conditions

1. are clearly stated 2. relate to the purpose of the prgram and 3. are not unduly coercive.

Question 10

Equal Protection–Aliens

Answer 10

State classifications based on aliens are subject to strict scrutiny and must serve a compelling state interest.

Cant discriminate against all or a subset of aliens withouth passng SS>

Question 11

Regulation of Commercial Speech on Government Property (city owned property)

Answer 11

OK as long as viewpoint neutral and reasonably related to legitimate govt interest in avoiding controversy

Sides of Govt buildings/busses do not count as public forums.

Question 12

Regulations on Commercial Speech in general

Answer 12

Restrictions must be narrowly tailored to serve a substantial government interest directly advanced by the restriction

Question 13

Equal Protection-Gender

Answer 13

Must pass INTERMEDIATE Scrutiny

Strike down unless government offers an exceedingly persuasive justification that the classification is substantially related to an important govt. interest.

Question 14

Firing of Employees of Private Companies

Answer 14

private employer can fire employee for any reason not prohibited by state statute.,

Think state action issues.

Question 15

Obscenity

Answer 15

Depiction of sexual conduct, taken as a whole, by the average person using contemporary community standards: i) appelas to the prurient interest in sex ii) portrays sex in a patently offensive way iii) using a rational, reasonable person standard, does not have serious literary artistic, political, , or scientific value.

Question 16

Burdens to Foreign Commerce

Answer 16

Read broadly to include state regulations that favor domestic over foreign—

Rational basis standard applies to economic burdens–?

Question 17

Prior Restraints

Answer 17

Court order prohibiting speech before it occurs

Must meet Strict Scrutiny

One who violates it is barred from later challenging it.

Question 18

First Amendment-Defamation-Plaintiff is public official

Answer 18

P can recover for defamation by proving falsity of statement and actual malice (knowledge or recklessness)

Question 19

First A–Defamation–Public Figure–

Answer 19

P can recover for defamation by proving falsity and actual malice

Question 20

First A–Defamation–P= private figure

Answer 20

Matter of Public Concern–State may allow P to recover for defamation by proving falsity and negligence by the defendant. For punitive damages you need actual malice.

If Matter is NOT of public concern–P can recover presumed or punitive damages without showing actual malice

Question 21

First A and Privacy

Answer 21

The government may not create liability for truthful reporting information that was lawfully obtained from the government.

Question 22

First A and the Tort of Invasion of Property

Answer 22

In general it is a tort to public private info about someone, even if true, if reasonable person would object to having the info public. However, if matter is of public interest, its publication is privileged if made without actual malice, especially if info was lawfully obtained.

Question 23

Due Process and Firing of Public Employees

Answer 23

Where a public employee can only be fired FOR CAUSE, she is entitled to a pretermination opportunity to respond to the charges and a later hearing.

Question 24

Does congress have police power?

Answer 24

No but it MAY spend for the general welfare–congressional spending for general welfare upheld as long as reasonably related to revenue production or congress has power to regulate the taxed activity.

Question 25

When is a (state) tax valid under the commerce clause

Answer 25

When it i) does not discriminate against interstate commerce ii) there is a substantial nexus between the activity taxed and the taxing state iii) the tax is fairly apportioned, and iv) the tax fairly relates to the services or benefits provided by the state.

Question 26

What is a valid consideration as to whether a party can vail himself of a FEC claim

Answer 26

When someone claims they are being punished for religious belief---the court can inquire into the sincerity of their religious beliefs Cant ask: if traditional, if theistic, if true

Question 27

Market Participant Exception

Answer 27

Commerce cLause generally prohibits states from discriminating against out of state businesses (in form of a tax) in order to benefit themselves. BUT--exception sas that Commerce clause does NOT prevent a state from preferring its own citizens when the state is acting as a market participant (buying or selling goods, hiring labor, giving subsidies)

Question 28

Federal Postal Monopoly

Answer 28

No private or postal mail service without consent of Congress-and they delegated their power to the Postal Service. Exception for extremely urgent messages.

Question 29

What are president's powers after a treaty that was and had to be ratified by senate?

Answer 29

Very broad---not much control. Pres can prob void a treaty where the other party stopped complying

Question 30

Thirteenth Amendment

Answer 30

13th prohibits slavery---has an enabling clause that gives Congress power to proscribe any private racially discriminatory action that can be characterized as a badge or incident of slavery

Question 31

Who selects ambassadors and diplomats?

Answer 31

President--Senate can advise and give consent, cannot force an ambassador on the president.

Question 32

Limited Public Forums

Answer 32

Govt can regulate speech based on subject matter of the speech, as long as regulation is rationally related to the purpose served by the property and does not discriminate on view point. ``` A courthouse may be a limited public forum. A school class used after hours? ```

Question 33

Regulation of ForeignCommerce

Answer 33

Exclusively a federal power | --even a legitimate state interest will not justify.

Question 34

Standing Reqs

Answer 34

Injury--P must prove that he or she has been injured, or if injunctive relief show a likelihood of future harm Causation Redressability *no 3d party standing unless close relationship between P and injured party, and if 3d party could adequately rep interest, or if injured party unlikely to assert own rights; or an org may sue for its members if members would have standing, interests are germane to org's purpose, neither the claim nor relief requires participation of individual members

Question 35

Standing and Tax

Answer 35

Being a tax payer does not give you standing---but taxpayers have standing to challenge govt expenditures pursuant to federal, state, or local statues as violating th Establishment Clause. --not tax credits, property, or general expenditures of revenue

Question 36

ripeness

Answer 36

Q of whether a federal court may grant pre-enforcement review of a statute or regulation consider the hardship suffered w/o review fitness of the issue and record for judicial review (does fed court have enough info or it is better to wait)

Question 37

Mootness

Answer 37

need an ongoing injury so if events after filing of a lawsuit end the P's injury--case dismissed as moot exceptions: wrong capable of repetition (e.g. roe v. wade) exception: class action suit--is OK as long as at least one member has an ongoing injury

Question 38

Political Questions

Answer 38

Courts wont adjudicate following: republic form of govt clause: challenges to P's foreign policy challenges to impeachment and removal process challenges to partisan gerrymandering

Question 39

Supreme Court Review

Answer 39

with cert from State Supreme Court or US ct of Appeals or: from three judge federal dist courts and between state governments

Question 40

what cases CANT lower federal and state courts hear?

Answer 40

cant hear: suits against state governments bc of sovereign immunity (11th A bars suits against states in fed govt, Soverign immunity bars suits against states in state courts) SEE EXCEPTIONS

Question 41

Under what (4) circumstances can a state be sued?

Answer 41

waiver pursuant to federal laws adopted under section 5 of the 14th amendment fed govt may sue state gov bankruptcy

Question 42

When are suits against stated officers allowed

Answer 42

for injunctive relief money damages paid out of their pockets if state treasury is paying retroactive damages

Question 43

What is the principle of Abstention?

Answer 43

Federal courts may not enjoin pending state court proceeding?

Question 44

Legislative Power--general power

Answer 44

* no general federal police power (except DC, military, indians, federal land/territories ``` Necessary and proper tax and spend for general welfare commerce section 5 of 14th (limit--10th, barely) ```

Question 45

Commerce Clause

Answer 45

Congress may regulate channels of interstate commerce, instrumentalities of interstate commerce, and economic activities that have a substantial effect on interstate commerce **where non-economic activity--cant use substantial effect/cumulative impact, and you cant regulate inactivity

Question 46

10th amendment

Answer 46

rarely the answer, not much of a limit any more says that all powers not granted to he US or prohibited to the states, are reserved to states or people

Question 47

Can congress make states do things?

Answer 47

No. May condition grants on stuff, if not too coercive. may prohibit harmful commercial activity by states

Question 48

Congress's Section 5 Power under 14th

Answer 48

Congress cannot create new rights, or expand scope of rights.May only act to prevent or remedy violations of right recognized by courts and such laws must be proportionate and congruent to remedying constitutional violations.

Question 49

Veto

Answer 49

Legislative Veto Not OK. you need bicameralism and presentment. Pres. line item veto--vetoing only some parts of a bill.

Question 50

Federal Executive Power

Answer 50

Exec has power over foreign policy--treaties (negotiated by pres, ratified by senate) executive agreements--no senate approval required--never unconstitutional.

Question 51

Treaties, Exec Agreements, State law, Federal Law--what is supreme?

Answer 51

If treaty conflicts with US const--invalid. If treaty conflicts with federal statute--last to be adopted control. Treaty prevails over state law. Exec agreements prevail over conflicting state law but never federal law or constituion

Question 52

power over troops and war

Answer 52

Pres has broad power as commander in cheif to use troops in foreign nature congress declares war even without declaration of war pres will still be able to direct troops

Question 53

Appointment Power

Answer 53

president appoints ambassadors, federal judges, officers, congress my vest appointment of inferior offivers (who can be fired by officers) in pres, head of dept, lower courts (CANT give itself that power) pres may not make recess appointments during INTRAsesson recesses of less than 10 days

Question 54

Removal Power

Answer 54

Unless limited by statute, pres may fire any executive branch officer (think Nixon/Cox) If congress wants to limit removal power---must be an office where independence from president is desirable and; Congress can NOT prohibit removal--just limit to good cause.

Question 55

Impeachment

Answer 55

who: pres, VP, federal judges and officers how: treason, bribery, high crimes and misdeamenors what: does not remove from office--house impeaches, senate tries (house majority, senate 2/3)

Question 56

Presidential priv and immunity

Answer 56

Immunity to civil suits for money for actions taken during offie, not for before privilege for papers and convos--but will yield to other important governmental interests

Question 57

Presidential Pardon Power

Answer 57

Pres can pardon those convicted of FEDERAL crimes (NOT STATE)

Question 58

Federal Preemption

Answer 58

Express Implied---where laws are mutually exclusive, where state law impedes purpose of fed law, or where congress evidences a clear intent to occupy the field.

Question 59

Intergovernmental Immunity

Answer 59

State may not tax or regulate federal governmental acitity

Question 60

Dormant Commerce Clause

Answer 60

the negative implications of the commerce clause: a STATE law will be unconstitutional under the commerce clause if it places an undue burden on commerce (even if congress has not acted)

Question 61

Priv. AND immunities clause of the Article IV

Answer 61

No state may deny citz of other states of the rights it gives its own citz

Question 62

Priv OR immunity clause of 14th

Answer 62

ALWAYS WRONG--only right to travel

Question 63

how to analyze a possible dormant commerce, priv/imminity Q?

Answer 63

1. does it discriminate against out of staters? NO: a. priv and immunity does not apply b. undue burden on interstate commerce--dormant commerce clause violation. YES a. if law burdens interstate commerce-->violation of commerce unless neccessary to achieve important government purpose. unless: - ->congressional approval - ->MARKET participant exception: state/gov may prefer its own citizens in receiving benefits from governmental programs or in dealing with govt. owned businesses. b. if law discriminate against out of staters w/r/t their ability to earn a living--this will violate priv. and immunity clause unless neccessary to achieve important govt. purpose.

Question 64

State taxation of interestate commerce

Answer 64

states may not use tax system to help in state businesses may only tax activities where there is substantial nexus to the state. taxation of interstate bus must be FAIRLY apportioned.

Question 65

Full faith and credit

Answer 65

where court had jurisdiction over parties and SMJ, j was on the merits, and j was final

Question 66

State action

Answer 66

--generally, priv. conduct need not comply with constitute. except: congres may apply const norms to private conduct via statute. 13th A can be used to prohibit private race disrcrim. commerce power can be used to apply const normsl tp private conduct. (civil rights act!) CANNOT use SECTION 5 of the 14th to regulate private behavior. - ->where private entity performs govt functions (marsh) - ->where govt entangled with/facilitates discrimination (racial covenants) (leasing premises to restaurants that racially discriminate)

Question 67

Entanglement Exception to State Action

Answer 67

IS state action where 1. courts enforce racially restrictive covenants 2. govt. lease premises to restaurant that race disrim. 3. state provides book to schools that racially discrim 4. NO state action when priv school funded by govt fires teacher bc of speech 5. NO state action when NCAA orders suspension of bball coach of state uni. 6. YES where private entityt regulates interscholasitc sports 7. NO when private club with a liquor licence from state and racially discriminates

Question 68

What BOR have NOT incorporated?

Answer 68

Third. 5th--GJ 7th--jury in civil cases 8th--against excessive fines.

Question 69

Rational Basis Test

Answer 69

If rationally related to legit government purpose * challenger has burden of proof * actual motivation irrelevent * very deferential

Question 70

Intermediate Scrutiny

Answer 70

Substantially related to important government purpose * look at actual objective * need not be least restrictive means * government has burden of proof

Question 71

Strict Scrutiny

Answer 71

Neccessary to achieve a compelling government purpose *burden on govt. least restrictive means test.

Question 72

Due Process--defined

Answer 72

Procedural asks if sufficient procedures provided when depriving life liberty property Substantive asks if adequate reason for doing so.

Question 73

When is there a liberty deprivation?

Answer 73

loss of significant freedom provided by constitute or statute. i.e. institutionalization

Question 74

when is there a property deprivation?

Answer 74

if there is a entitlement and it is not fulfilled.q

Question 75

What process is required?

Answer 75

Balance-- importance of interest to individual ability of additional procedure to increase accuracy of fact finding government's inteerest

Question 76

What process due before welfare benefits terminated?

Answer 76

notice and hearing BEFORE termination

Question 77

What process due when SSI benefits terminated?

Answer 77

POST termination hearing

Question 78

What process due before school disciplines child?

Answer 78

notice of charges and opp to explain

Question 79

What process due before parent's rights terminated?

Answer 79

pre termination notice and hearing

Question 80

What process due before punitive damages

Answer 80

instructions to jury, judicial review of reasonableness

Question 81

What process due before american citizen can be deemed enemy combatant?

Answer 81

due process!

Question 82

What process due before pre judgement attachment of assets?

Answer 82

notice and hearing unless exigent circumstances