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Flashcards in Con Law Deck (21)
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What are the requirements for bringing the keys in an article III court

Rightness, mootness, standing


What is required to establish standing

Injury in fact, causation, no third-party standing except organizations can sue on behalf of members, close relationship between third-party and plaintiff, third-party unlikely to be able to assert rights


What does the 11th amendment bar

Actions in federal courts in which the state is named as a party. Does not extend to claims against local officials or state officers


What are the enumerated and implied legislative powers

Necessary and proper power
Taxing power
Spending power
Commerce power
War and related powers
Investigatory power
Property power


In order to fall within Congress is commerce power a federal law must either

Regulate the channels of interstate commerce
Regulate the instrumentalities of interstate commerce
Regulate activities that have a substantial effect on interstate commerce


What does the privileges and immunities immunities clause prohibit

It prohibits discrimination by a state against non-resident citizens. Only fundamental rights are protected I E rights relating to important commercial activities or civil liberties. The law may be valid if the state has a substantial justification and there are no less restrictive means to solve the problem


What is the dormant commerce clause

It prohibits states or local governments from unduly burden in interstate commerce


When can local regulations that discriminate against interstate commerce be valid

One, when it further is an important non-economic state interest and there are no reasonably non-discriminatory alternatives. Two, when the state acts as a market participants


If a non-discriminatory state law burdens interstate commerce when will it be valid

It will be Valid unless the burden outweighs the promotion of a legitimate local interest


What does procedural due process protect and what type of process is required

Procedural due process means that a fair process i.e. notice of hearing is required for a government agency to take a persons life liberty or property
Three-part balancing test
The importance of the interest
Value of specific procedural safeguards to that interest, against
The government interest in fiscal and administrative efficiency


Strict scrutiny

Applies to regulations affecting the fundamental rights or involving suspect classifications

law is upheld if it is necessary to achieve a compelling government purpose


Intermediate scrutiny

Applies to regulations involving quasi suspect classifications (gender and legitimacy)
The law is upheld if it is substantially related to an important government purpose


What are the sources of substantive due process

The due process clause of the fifth amendment applies to federal government, the due process clause of the 14th amendment applies to state and local governments


How do you prove that a law is discriminatory

It is discriminatory on its face, a discriminatory application of a facially neutral law, or there is a discriminatory motive behind the long next line the third way is very difficult to prove


What are fundamental rights

Right to travel, privacy, voting, and First Amendment


What are suspect classifications

Race, national origin, and sometimes alienage


What are the standards for government regulation of the content of speech versus conduct

It is presumptively illegal to regulate the content of speech. Content neutral speech regulations generally are subject to intermediate scrutiny i.e. they must advance important interest on related to the suppression of speech and must not burn substantially more speech than necessary (must be narrowly tailored)
Conduct related to speech can be regulated by content neutral time, place, and manner restrictions


When is a time place and manner restriction in a public forum or designated public forum OK

It must be content neutral, narrowly tailored to serve an important government interest, and leave open alternative channels of communication


What are the limitations on government regulation of speech in a non-public forum for a limited public forum

The government can regulate speech in such a forum to reserve the form for its intended use. Regulations are valid if they are viewpoint neutral, and reasonably related to a legitimate government purpose


When can regulation of speech should be struck down as unreasonable

Overbroad, void for vagueness, cannot give officials unfettered discretion


What type of government regulation is invalid under the establishment clause

Government action will be invalid unless the action has
A secular purpose
A primary effect that neither advances nor inhibits religion
Does not produce excessive government entanglement with religion