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Flashcards in Con Law Rules Deck (15):

Discrimination against out of state commerce

an important local interest is being served and no other nondiscriminatory means are available to achieve that purpose


State taxation of interstate commerce

(1) substantial nexus between activity being taxed and taxing state; (2) fair tax apportionment; (3) no local direct advantage over interstate competitors (even if neutral on face); (4) tax must be fairly related to services provided by taxing state


Notice and hearing

(1) private interest affected by the governmental action; (2) risk of erroneous deprivation of that interest using current procedures and probable value of additional or substitute safeguard; (3) burden (fiscal and administrative cost) involved in providing the additional process


Comity clause exception

Discrimination is valid if there is a substantial justification: (i) the nonresidents either cause or are part of the problem the state is trying to solve; and (ii) no less restrictive means to solve problem


Regulatory taking

(1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation interferes with owner's reasonable investment backed expectations regard use of property: (3) character of regulation, including 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


Exaction as taking

May exact promises from a developer and not violate takings clause if: (1) essential nexus between legitimate state interests and conditions imposed on property owner; (2) rough proportionality between burden imposed on property owner and impact of proposed development


Impairment of contracts

State legislation that substantially impairs a contract between private parties is invalid unless government can demonstrate that the interference was reasonable and necessary to serve an important governmental interest


Lemon test

A governmental action that impacts religion is valid if (1) secular purpose; (2) principal/primary effect either advances nor inhibits religion; and (3) does not result in excessive government entanglement with religion


Religious conduct

state law that intentionally target religious conduct subject to strict scrutiny; neutral state laws of general applicability that have an adverse impact on religious conduct only subject to rational basis test (federal laws subject to strict scrutiny)


Expressive conduct

Regulation upheld if (1) within government's power to enact; (2) furthers an important governmental interest; (3) unrelated to suppression of ideas; (4) burden on speech no greater than necessary



Void if burdens substantially more speech than necessary to protect a compelling governmental interest; may be challenged as facially invalid to prevent chilling effect on protected speech


TPM: public forum

(1) content-neutral as to both subject matter and viewpoint; (2) narrowly tailored to serving a significant governmental interests, and (3) leave open ample alternative channels for communication


TPM: non-public forum

(1) viewpoint neutral; (2) reasonably related to a legitimate governmental interest


Commercial speech

Restrictions on commercial speech when speech concern lawful activity and neither false or misleading: (1) asserted governmental interest must be substantial; (2) regulation must directly advance asserted interest; (3) reasonable fit between the government's ends and means chosen to accomplish them


Zoning ordiance

Local governments have the power to pass zoning ordinances, so long as they are reasonably related to a legitimate government purpose