Con Law

Question 1

What are the fundamental rights?

Answer 1

1. Privacy rights
   - To marry
   - Procreation
   - Private education
   - Family relations or the right of the nuclear family to live together
   - sexual contact, fully consenting adults, private intimate sexual conduct not commercial in nature
2. Right to travel
3. Right to vote

Question 2

How can a plaintiff establish ripeness before a law or policy is enforced?

Answer 2

By showing:
1. The issues are fit for judicial decision;
2. P would suffer substantial hardship in the absence of review.

Question 3

What are the 3 major components of standing?

Answer 3

Injury, causation, and redressability.

Question 4

For substantive due process, what are the levels of scrutiny and what do they apply to?

Answer 4

1. Strict scrutiny (is the law necessary to achieve a compelling gov’t interest?): applies to fundamental rights (privacy, interstate travel, voting, 1A
2. Rational basis (is the law rationally related to a legitimate gov’t interest?): applied when no fundamental right involved

Question 5

Under the 5th amendment, when may the gov’t take private property?

Answer 5

1. For public use, and
2. gov’t must pay just compensation

Question 6

In a takings context, what are the factors to be considered when a regulation decreases economic value?

Answer 6

1. Gov’t interest to be promoted;
2. Diminution of value to owner;
3. Whether reg substantially interferes with investment-backed expectations of the owner.

Question 7

When can speech be considered incitement?

Answer 7

1. Intended to produce imminent lawless action, and
2. likely to produce such action.

Question 8

What is a “true threat”?

Answer 8

Words that are intended to convey to someone a serious threat of bodily harm.

Question 9

In 1A context, define “Actual Malice”

Answer 9

Statement made with:
- knowledge that it was false OR
- reckless disregard as to its truth or falsity.

Question 10

Standard for private figure suing on a matter of public concern?

Answer 10

P may recover:
- Actual damages for negligence
- Punitive/presumed damages for actual malice

Question 11

When is commercial speech NOT protected under 1A?

Answer 11

When it is:
1. False
2. Misleading
3. About illegal products or services

Question 12

When will regulation of commercial speech be upheld?

Answer 12

If it:
1. Serves a substantial gov’t interest;
2. Directly advances that interest; and
3. is narrowly tailored to serve that interest.

Question 13

What makes speech obscene?

Answer 13

Depiction of sexual conduct specifies by law that, taken as a whole:
- Appeals to the prurient interest (contemporary community standard)
- Patently offensive (CCS)
- No serious value (national reasonable standard)

Question 14

1A standard for defamation, P is public official/figure?

Answer 14

Must show elements of defamation, plus:
- Falsity
- Actual malice
– knowledge of falsity
– reckless disregard for the truth

Question 15

What level of scrutiny for (1) content-based regulations, and (2) content-neutral regulations?

Answer 15

(1) content-based: strict scrutiny
(2) content-neutral: intermediate scrutiny
– limits speech on some other basis (often TPM)
– Not overbroad: can’t burden more speech than necessary to promote gov’t interest

Question 16

Regarding speech on gov’t property, what are the forums and associated standards of review?

Answer 16

Traditional Public Forum AND Designated Public Forum:
- content-based: SS
- content-neutral: IS (must have ample alternative channels)

Limited Public Forum AND Non-Public Forum:
- can restrict speech to preserve spaces for intended use;
- BUT can’t engage in viewpoint discrimination.

Question 17

What is a traditional public forum?

Answer 17

Public property that has historically been open to speech-related activities.

Examples: streets, sidewalks, public parks.

Question 18

What is a designated public forum?

Answer 18

Public property not historically open to speech-related activities, but which the gov’t has thrown open for such activities on a permanent or limited basis.

Examples: town hall open for use by social, civic, or recreation groups.

Question 19

What is a limited public forum?

Answer 19

Gov’t forums not historically open generally for speech but opened for specific speech activity.

Example: school gym opened to host debate on community issue.

Question 20

What is a non-public forum?

Answer 20

Gov’t property not historically open generally for speech and not held open for specific speech.

Examples: military bases, gov’t workplaces.

Question 21

In an equal protection context, what are the different levels of scrutiny and what do they apply to?

Answer 21

Strict Scrutiny (is the law necessary to achieve a compelling gov’t interest?): Applies when suspect class involved:
- Race
- National origin
- Alienage (state/local) (except RB for positions and acts essential to self-governance.

Intermediate Scrutiny (is the law substantially related to an important gov’t interest?): Applies when quasi-suspect class involved:
- Gender
- Legitimacy

Rational Basis (is the law rationally related to a legitimate gov’t interest?): Applies when no suspect or quasi-suspect class:
- Age
- Disability
- Wealth
- Alienage (federal)

Question 22

What are the 3 ways to prove discriminatory classification/intent of a statute?

Answer 22

1. Facial discrimination
2. Discriminatory application (need intent)
3. Disparate impact (need intent)

Question 23

Procedural due process requires:

Answer 23

1. Notice;
2. An opportunity to be heard; AND
3. A neutral decisionmaker.

Question 24

Are due process rights subject to waiver?

Answer 24

Yes, if the waiver is made voluntarily and knowingly.

Question 25

Regarding procedural due process, the type and extent of the required hearing are determined by a balancing test that weighs:

Answer 25

1. Importance of the interest to the individual; AND
2. value of procedural safeguards to that interest; AGAINST
3. the government interest in fiscal and administrative efficiency.

Question 26

For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has __________.

Answer 26

A legitimate claim or entitlement to the benefit.

Question 27

When may continued public employment be a protected property interest for procedural due process purposes?

Answer 27

When there is a clear practice or mutual understanding that an employee can be terminated only for “cause.”

Question 28

The privileges and immunities clause of Art IV prohibits discrimination by a state against nonresidents of the state when the discrimination concerns:

Answer 28

1. Important commercial activities;
2. fundamental rights

Question 29

Regarding privileges and immunities clauses, if a state law burdens an important commercial activity or fundamental right, it will be valid unless the law is:

Answer 29

1. Necessary to achieve an important gov’t purpose; and
2. there are no less restrictive means available.

Question 30

1. What does the Art. IV priv/imm clause protect?
2. What about the 14A clause?

Answer 30

1. Prohibits a state from discriminating against nonresidents regarding commercial activities and fundamental rights.
2. The rights of national citizenship (e.g., right to vote for federal officers, right to interstate travel).