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Flashcards in Conlaw Deck (36)
1

Requirements of standing

1) Injury in fact: actual or imminent
2) Causation
3) redressability

On behalf of third parties:
1) unable to assert own rights
2) special relationship
3) injury adversely affects plaintiff's relationship with third party.

2

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

3

Pullman doctrine

Unsettled state law claims are best left to state courts.

4

Younger abstention

don't enjoin state proceedings where there a strong state interest

5

Article I powers

1) bankruptcy
2) maritime matters
3) coining of money
4) fixing of weights and measures
5) patents and copyrights
6) Commerce
7) taxation and spending
8) war powers

6

State immunity from federal taxes

ONLY if it would "discourage essential government functions"

7

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.

8

Complete Auto Test for state taxation on interstate commerce

1) substantial nexus
2) rational formula for apportionment
3) nondiscrimination
4) fair relation to services provided

9

Discriminatory taxes

Against out of state individuals --> Article IV Comity violation.

Against out of state business --> equal protection violation,

10

Taxing instrumentalities of commerce

1) taxable situs / sufficient contacts.

2) fairly apportioned.

11

What is NOT incorporate into 15th amendment?

5th amendment grand jury indictment.
6th amendment unanimous verdict.
8th amendment excessive fines.

12

Protected interests

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.

13

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.

14

Strict scrutiny

least restrictive + compelling government interest.

Applies to fundamental rights OR suspect classifications (equal protection).

15

Fundamental rights

1) right to vote
2) right to travel domestically
3) right to privacy
-marriage
-childbirth
-sex
-abortion
-cohabitation
-child rearing
4) first amendment rights.

16

Abortion

No "substantial obstacles" before the fetus becomes viable.

17

Intermediate scrutiny

Substantially related + important govt interest.

1) gender
2) nonmarital children

18

Discriminatory intent

1) discriminatory on face
2) disparate impact + discriminatory motive.

19

Suspect classifications

1) race, ethnicity, national origin
2) alienage (state action only, fed action is rational basis)
-EXCEPTION: government functions.

20

Nonsuspect classifications

1) Age
2) poverty
3) sexual orientation

21

Fundamental rights unique to equal protection

1) one person, one vote
2) gerrymandering

22

Article IV Privileges and Immunity

funamental rights OR essential activities.

Justifications:
1) nonresidents are cause of problem AND
2) no less restrictive means.

23

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.

24

Regulatory takings

1) economic impact
2) investment-backed expectations
3) character or regulation

25

Per se takings

1) permanent physical occupation.

2) no economically viable use.

26

Permissible exactions from developers

1) essential nexus with legitimate state interests.
2) rough proportionality or burdens and benefit.

27

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

28

Impairment of contracts

1) Private Ks: no substantial impairment UNLESS reasonable and necessary for important govt interest.

2) PUblic K: "reasonable and necessary"

29

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.

30

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

31

Test for prior restraints

1) particular harm
2) procedural safeguards
- narrowly drawn, reasonable.
- seek injunction
- judicial determination

burden on gov't

32

Time, place, and manner restrictions in public forums

May impose reasonable restrictions if:
1) content-neutral
2) narrowly tailored + significant govt interest
3) alternative channels of communication.

Content-based = strict scrutiny.

33

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).

34

Speech inciting violence

1) imminent lawless action
2) likely to incite such action.

35

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.

36

When may person be deprived of public employment based on affiliation?

1) subversive organization
2) knowledge of illegal activity
3) specific intent to further activities.