Con Law

Question 1

Justiciability
Limitations and Abrogation

Answer 1

Limitation—11th Amendment: Citizens of one state can’t sue another state in fed court and can’t sue their own state in fed court

Abrogation—Congress may expressly repeal state immunity if acting to enforce rights under 13th, 14th, and 15th Amendments

Question 2

Standing
Individual and Organizational

Answer 2

Individual = (1) injury in fact + (2) causation + (3) Redressability

Organizational = (1) individual members have standing + (2) claim related to org’s purpose + (3) individual members not necessary to adjudicate the claim

Question 3

Mootness

Answer 3

Must have live controversy

Question 4

Ripeness

Answer 4

Injury must’ve occurred or not be speculative

Question 5

Commerce Clause

Answer 5

Congress has power to regulate interstate commerce: (1) Channels of interstate commerce; (2) Instrumentalities; (3) Activities that have substantial effect

Question 6

Commerce Clause:
Substantial Effect

Answer 6

Substantial Effect: Economic activity presumed to have substantial effect; Aggregation—economic activity occurring w/in state Congress can regulate activity that, in aggregate, has effect on interstate commerce.

Question 7

Spending Power

Answer 7

Congress can condition fed funds to states and requires states to implement certain regs so long as condition is related to purpose of funds and isn’t coercive

Question 8

Commandeering

Answer 8

States might claim Congress violating 10th Am by forcing state legislature to pass specific legislation. Valid exercise of Spending power doesn’t’ constitute commandeering

Question 9

Delegation of Legislative Power

Answer 9

Congress may delegate its powers to an agency so long as it provides reasonably intelligible standards.

Question 10

Executive Powers
Foreign and Domestic

Answer 10

Issue Executive Orders

Domestic—appointment and removal powers, pardon power, commander in chief, duty to execute the law

Foreign—power to conduct foreign negotiations, deploy troops overseas, make executive agreements

Question 11

Supremacy Clause

Answer 11

If state law conflicts w/fed law, fed law governs

Question 12

Express Preemption

Answer 12

Fed law explicitly states that it is the only law allowed in that area
Any state law address that issue is invalid

Question 13

Implied Preemption

Answer 13

(1) Congress passes fed law intending to “occupy the field”
(2) State law conflicts directly w/fed law or
(3) State law conflicts indirectly w/fed law (States can pass more stringent laws though)

Question 14

Privileges and Immunities Clause

Answer 14

Prohibits states from discrimination against nonresidents, unless necessary to achieve an important gov interest

Question 15

10th Amendment

Answer 15

All powers not expressly given to fed gov are reserved to the states. No commandeering.

Question 16

Dormant Commerce Clause

Answer 16

A state may not discriminate against out of state commerce or unduly burden interstate commerce.

Question 17

Dormant Commerce Clause
Discrimination

Answer 17

Discrimination: If state statute discriminates against out-of-state commerce, state must show: (1) it has important state interest; and (2) no other non-discriminatory means available to achieve that interest.

Question 18

Dormant Commerce Clause
Market Participant Execption

Answer 18

Market Participant Exception: If state is acting as buyer or seller, it can favor local business

Question 19

Dormant Commerce Clause
Unde Burden

Answer 19

Unduly Burdens Interstate Commerce: Court balances (a) purpose of statute; (b) burden on interstate commerce; and (c) whether there are less restrictive alternatives.

Question 20

State Action

Answer 20

Private entity may be treated as a state actor when: carrying out an act or activity traditionally performed by gov or intwined w/state actor (like joint venture w/state actor)

Question 21

Takings Clause

Answer 21

Gov may not take private property for public use w/o just compensation

Question 22

Takings Clause
Public Use

Answer 22

Must be rationally related to a conceivable public purpose. Includes health, safety, and econ development

Question 23

Takings Clause
Physical Taking

Answer 23

Gov physically takes or occupies land

Question 24

Takings Clause
Regulatory Taking (Total and Partial)

Answer 24

(1) Total Taking—reg leaves no economically viable use of prop
(2) Partial Taking—reg affects s/econ use of land, but still s/econ use available. Look at econ impact, reasonable expectations, and character of reg (does it impact a few or the entire community)

Question 25

Exaction

Answer 25

Local gov may exact promises from developer in exchange for construction permits. Not a taking so long as there’s an essential nexus and rough proportionality

Question 26

Just Compensation

Answer 26

FMV of property at time of taking. If only portion taken, owner entitled to comp for land actually taken

Question 27

Zoning

Answer 27

Local govs can pass so long as reasonably related to legitimate gov purpose.

Question 28

Variance

Answer 28

May be granted to allow owner to continue nonconforming use. Owner must show undue burden if variance not granted. For a taking clause claim, must show zoning ordinance amounts to reg taking.

Question 29

Procedural Due Process (3 Factors)

Answer 29

Gov shall not deprive a person of life, liberty, or property w/o due process of law (includes notice, hearing, neutral decisionmaker, and right to appeal) Factors: (1) interest affected (2)value of additional safeguards, and (3) burden or cost of additional process.

Question 30

Substantive Due Process

Answer 30

Whether gov’s action impermissibly infringes on an individual’s rights. (1) Fundamental rights—strict scrutiny: valid if necessary to achieve a compelling gov interest (2) Non-fundamental rights—rational basis: valid if rationally related to a legitimate gov interest.

Question 31

Equal Protection

Answer 31

Discrimination requirement: discriminatory intent—strict or intermediate scrutiny (depending on classification.

Question 32

Equal Protection Strict Scrutiny

Answer 32

Gov must show it is: least restrictive means to achieve a compelling government interest

Question 33

Intermediate Scrutiny

Answer 33

Government must show substantially related to an important gov interest Gender discrimination must show “exceedingly persuasive justification” and that facilities are substantially equivalent.

Question 34

Rational Basis

Answer 34

P must show law is not rationally related to a legitimate government interest.

Question 35

Enabling Clause

Answer 35

Congress may pass legislation to enforce equal protection and due process rights

Question 36

Expressive Conduct

Answer 36

Reg valid if (1) furthers important gov interest; (2) interest is unrelated to suppression of ideas; and (3) burden on speech is no greater than necessary

Question 37

Overbreadth

Answer 37

Statute regulates more speech than necessary to protect a compelling gov interest

Question 38

Vagueness

Answer 38

Statute fails to provide person of ordinary intelligence w/fair notice of what’s prohibited

Question 39

Content-based

Answer 39

Strict scrutiny: Gov must show reg is (1) necessary to achieve (2) a compelling gov interest and (3) narrowly tailored to meet that interest

Question 40

Time, Place, and Manner Regulation (TPMR)

Answer 40

Depends on Forum: Traditional public forum, designated public forum, or non-public forum

Question 41

Content-neutral

Answer 41

Intermediate scrutiny

Question 42

Commercial Speech

Answer 42

May be prohibited if false, misleading, or unlawful Protected commercial speech can only be regulated if: gov interest substantial, reg directly advances the interest; and reg is narrowly tailored

Question 43

Obscenity

Answer 43

Unprotected: the average person, applying contemporary community standards finds the speech: appeals to prurient interest; depicts sexual conduct in patently offensive way; and lacks value

Question 44

Incitement to Violence

Answer 44

Advocates use of force or unlawful action is unprotected if directed to inciting or producing imminent lawless action and likely to incite or produce such action

Question 45

Fightin Words

Answer 45

By very nature likely to incite an immediate breach of peace

Question 46

Traditional Public Forum

Answer 46

Content-based regs subject to strict scrutiny Content neutral subject to time, place, and manner test; must be: narrowly tailored to serve a significant go interest and leave open ample alternative channels for communication

Question 47

Designated Public Forum

Answer 47

Not historically used for speech related activities but has been opened for such use. Same rules as for traditional public forum

Question 48

Non-Public Forum

Answer 48

Gov can regulate if regulation is viewpoint-neutral and reasonably related to a legitimate gov interest

Question 49

Establishment Clause

Answer 49

No Facially religious preference. For Facially Neutral Statute, look at “historical practices and understandings” of environment in which preference is occurring. Ask if it appears gov is estb a religion, favoring one over the other, or preferring religion over non-religion

Question 50

Free Exercise Clause

Answer 50

Freedom to believe and act. Beliefs are absolutely protected but must be genuine. Conduct: Laws intentionally targeting religion’s’ conduct are subject to strict scrutiny Laws generally applicable, but happen to impact religion, are subject to rational basis test.

Question 51

Regulatory Taking

Answer 51

The following factors are considered: (i) the economic impact of the regulation on the property owner, (ii) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property, and (iii) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.

Question 52

Construction Permits

Answer 52

A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a park in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is (i) an essential nexus between legitimate state interests and the conditions imposed on the property owner (i.e., the conditions substantially advance a legitimate state interest), and (ii) a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development. In determining whether there is rough proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact.