Flashcards in Conlaw Deck (36)
Requirements of standing
1) Injury in fact: actual or imminent
On behalf of third parties:
1) unable to assert own rights
2) special relationship
3) injury adversely affects plaintiff's relationship with third party.
Timeliness of action
1) ripeness = real injury
2) mootness = live controversy at each stage of review. EXCEPTION:
- capable of repetition but evading review
- voluntary cessation
Unsettled state law claims are best left to state courts.
don't enjoin state proceedings where there a strong state interest
Article I powers
2) maritime matters
3) coining of money
4) fixing of weights and measures
5) patents and copyrights
7) taxation and spending
8) war powers
State immunity from federal taxes
ONLY if it would "discourage essential government functions"
Dormant commerce violations
1) Discriminate against out of state commerce;
- EXCEPTION: important local interest + no other nondiscriminatory means.
- EXCEPTION: market participant.
- EXCEPTION: traditional govt function.
- EXCEPTION: subsidies.
- EXCEPTION: congressionally permitted discrimination.
2) unduly burden interstate commerce;
3) regulate extraterritorially.
Complete Auto Test for state taxation on interstate commerce
1) substantial nexus
2) rational formula for apportionment
4) fair relation to services provided
Against out of state individuals --> Article IV Comity violation.
Against out of state business --> equal protection violation,
Taxing instrumentalities of commerce
1) taxable situs / sufficient contacts.
2) fairly apportioned.
What is NOT incorporate into 15th amendment?
5th amendment grand jury indictment.
6th amendment unanimous verdict.
8th amendment excessive fines.
1) physical freedom
2) freedom of choice or action
3) fundamental rights
- parental rights (clear and convincing, UNLESS mother initiates).
- public employment discharge only for cause.
Factors to determine necessary process for threat to liberty interest
1) private interest
2) value of additional or substitute safeguards
3) burden, fiscal and administrative.
least restrictive + compelling government interest.
Applies to fundamental rights OR suspect classifications (equal protection).
1) right to vote
2) right to travel domestically
3) right to privacy
4) first amendment rights.
No "substantial obstacles" before the fetus becomes viable.
Substantially related + important govt interest.
2) nonmarital children
1) discriminatory on face
2) disparate impact + discriminatory motive.
1) race, ethnicity, national origin
2) alienage (state action only, fed action is rational basis)
-EXCEPTION: government functions.
3) sexual orientation
Fundamental rights unique to equal protection
1) one person, one vote
Article IV Privileges and Immunity
funamental rights OR essential activities.
1) nonresidents are cause of problem AND
2) no less restrictive means.
14th Amendment privileges and immunities
protects individual citizens ONLY.
1) interstate travel
2) petition congress
3) vote for national office
4) enter public lands
5) peaceable assembly.
1) economic impact
2) investment-backed expectations
3) character or regulation
Per se takings
1) permanent physical occupation.
2) no economically viable use.
Permissible exactions from developers
1) essential nexus with legitimate state interests.
2) rough proportionality or burdens and benefit.
Ex post facto laws
1) criminalizes prior acts
2) increase penalties for past act
3) deprives defense for past act
4) decreases prosecution's burden of proof
Impairment of contracts
1) Private Ks: no substantial impairment UNLESS reasonable and necessary for important govt interest.
2) PUblic K: "reasonable and necessary"
Valid government action that benefits religion
1) secular purpose
2) neither advances no inhibits religion
3) not result of excessive govt entanglement.
* gifts to colleges or hospitals must be conditional on secular use.
Valid regulation of speech
1) within govt's power
2) important govt interest
3) unrelated to suppression of ideas
4) burden no greater than necessary
Test for prior restraints
1) particular harm
2) procedural safeguards
- narrowly drawn, reasonable.
- seek injunction
- judicial determination
burden on gov't
Time, place, and manner restrictions in public forums
May impose reasonable restrictions if:
2) narrowly tailored + significant govt interest
3) alternative channels of communication.
Content-based = strict scrutiny.
Miller test for obscenity
average person + contemporary community standards + taken as a whole:
1) appeals to prurient interest (local - jury);
2) depicts sex in patently offensive way (local - jury);
3) lacks literary, artistic, political, or scientific value (national - judge).
Speech inciting violence
1) imminent lawless action
2) likely to incite such action.
Test for restrictions on commercial speech
1) concern lawful activity + neither false nor misleading;
2) substantial govt interest;
3) directly advances govt interest;
4) narrowly tailored to serve interest.