Consti Flashcards
(120 cards)
1
Q
What article sets up federal judiciary?
A
Article III - sets up Supreme Court
2
Q
Structure of federal judiciary
A
There must be a US Supreme Court in the federal judiciary. Congress are permitted, but not required to create additional lower federal courts. Most federal cases are filed in the US District Court and then appeal to the US court of appeals. Some cases can be filed directly with the US Supreme Court.
3
Q
Power of Federal Courts
A
Federal courts are empowered to decide cases and controversies.
Jurisdiction is limited to certain categories of cases and controversies , including:
-Federal question jurisdiction;
- Diversity jurisdiction.
Federal courts also exercise power of judicial review and have the power to say what the law is.
Empowered to strike down statutes and acts of executive officials as unconstitutional
4
Q
Limitation on Federal Courts - Article III
A
Federal quarter only empower to decide cases and controversies. Advisory opinions are not permitted under Art III.
Look out for proposed legislation which has not been enacted into law.
5
Q
Eleventh Amendment and state sovereignty immunity
A
General rule – cannot sue any state for money damages in federal court unless the state consents the suit or Congress chose to aggregate that sovereign immunity through in an enumerated power. This limitation only protects states and state agencies, it does not protect local governments or individual state officers.
This extends only to suits for money damages – plaintiff can only seek money damages from a state officer by suing the state officer in their personal capacity
6
Q
Exception to 11th Amendment - Congress abrogating state sovereignty immunity
A
Congress can aggregate state sovereign immunity to enforce certain individual rights. Congressional intends to aggregate immunity must be clear.
7
Q
Original jurisdiction of US Supreme Court
A
Limited cases can be filed directly to the Supreme Court. This is typically limited to disputes between states.
8
Q
Appellate jurisdiction of US Supreme Court
A
Most cases come to the US Supreme Court via a writ of certiorari. Only four justices have to agree to grant the writ.
True limitations to the US Supreme Court appellate jurisdiction:
- Congress can create exceptions under article III
- Cannot hear a case from a state court with their adequate and independent state grounds for deciding the case
9
Q
Exceptions to US Supreme Court Appellate jurisdiction - Adequate and independent state grounds
A
Adequate – the state law controls the decision, regardless of how the federal issue would be decided.
Independent – state courts ruling does not depend on an interpretation of federal law .
Important to remember that the constitution sets the floor, not the ceiling, for individual rights. States can always create additional rights.
10
Q
Standing to sue - definition
A
Standing determines the proper parties to present a particular issue to the court for determination
11
Q
Constitutional requirements for standing
A
- Injury in fact - must be concrete, particularized (not abstract), but need not be economic or monetary.
- Causation – injury must be caused by defendants violation of the law.
- Redressibility - the relief requested of the court must be able to prevent or remedy the injury.
12
Q
Taxpayer standing
A
Taxpayers have standing to challenge their own tax assessment, but taxpayers do not have standing to challenge government expenditures using their federal money (with the exception of religion)
Narrow exception – federal taxpayers have standing to challenge government expenditures that potentially violate the establishment clause.
13
Q
Organizational standing
A
An organization can sue on behalf of its members if:
-the members would have standing in their own right; and
The interest at stake are germane to the organization’s purpose
14
Q
Legislative standing
A
Legislators do not have standing to challenge laws that they voted against. But, the legislature may have institutional standing if the claim has something to do with his institutional functions.
15
Q
Third-party standing
A
Generally not permitted, but there are some exceptions for unique relationships between the third-party and the person’s rights who they are representing.
Examples:
-a doctor can raise the injuries of her patients.
-a school can raise the injuries of students.
- a bartender can raise the constitutional injuries of their customers
16
Q
Ripeness
A
A federal court will not consider a claim until it is fully developed – cannot hear the claim when it is too soon
17
Q
Mootness
A
Cases are moot when there is no real controversy left to resolve between the parties – this can be measured any stage of review.
18
Q
Exception to mootness - capable of repetition yet evading review
A
Case will not be dismissed as moot if:
- a person will be subjected to the same action over and over again; and
The action will not last long enough to work its way through the judicial system .
Example is abortion litigation
19
Q
Political Questions
A
Courts cannot hear political questions. A political question arises when:
- the constitution assigns decision-making authority on this subject to a different branch of government; and
-The matter depends on that person’s discretion, such that there is no law for the judge to apply
20
Q
Abstention Doctrine
A
Federal courts may abstain from deciding claims when there are strong state interests at stake. 4 types of abstention:
- Pullman abstention – abstain because there is unsettled state law.
- Younger abstention – abstain for pending state criminal cases (unless obviously unconstitutional)
- Burford abstention – abstain if parties are seeking injunctive relief that would interfere with a complex state regulatory scheme
- Colorado River abstention – abstain if cases substantially similar to another case being heard in state court
21
Q
General Welfare Clause
A
Congress is no power to legislate for general welfare.
22
Q
Police power
A
Only states have general police power to enact laws to protect protected citizens – Congress cannot come, dear state legislatures by forcing states to adopt federal regulatory programs.
23
Q
Necessary and proper clause
A
A power of Congress, but not a freestanding power. Must be used in addition with another legislative power.
24
Q
Commerce clause
A
- most robust power that Congress has. Empowered Congress to regulate commerce with a foreign nations, and among the several states and with the Indian tribes.
- Can regulate three forms of activities:
- Channels of interstate commerce
- Instrumentalities of interstate commerce (railways and cars)
- Any behavior that has a substantial effect on interstate commerce. Behaves can be judged in the aggregate, and it can be small local behaviors.
Basically anything economic will be presumed
25
Taxing clause
Congress has broad powers to tax and spend. Congress can impose a tax, even if it does so to regulate behavior. Taxation may only be rationally related to raising money.
26
Spending clause
Congress is permitted to spend for the general welfare (basically for any public purpose.). This can also be used to incentivize behavior by the states by imposing conditions on federal funding.
Congress cannot:
- Impose unconstitutional conditions;
- Enforce conditions that are ambiguous or not related to the program; or
- Coerce state behavior with its spending conditions e.g when states have no other choice.
27
Thirteenth Amendement
Gives Congress authority to pass laws rationally related to ending the badges or incidents of slavery. Allow Congress to regulate both public and private action.
28
Fourteenth Amendment
Contains the equal protection, cause and the due process cause.
Section 5, gives Congress the power to enforce these provisions by appropriate legislation . Congress can enforce individual rights as the courts have defined them, but cannot expand them.
Congruence and proportionality test: Requires a reasonable fit between the constitutional right defined by the court and the means of enforcement. If enforcement is so broad it expands the right, the enforcement is unconstitutional.
29
Fifteenth amendment
Prohibit state and local governments from denying citizens the right to vote based on race. Enforced by Congress through the voting rights act. Courts of hell that the right to vote is the right to have the vote meaningly counted.
30
Other congressional powers
- Power to declare war
- Exclusive power to establish a post office
- Plenary power over non-citizens
- Exclusive power over naturalization (becoming a citizen)
- Power over federal elections under Article I, Section 4
- Power to enact any legislation necessary and proper to execute an enumerated power
31
Presidential Power over Domestic Affairs
Power to enforce the law, but not power to make the law. However, include significant power over administrative agencies that enforce the law - can issue executive orders, and set enforcement and rulemaking priorities.
Cannot tell agencies to enforce the law in a way that exceeds their statutory mandate.
32
Pardon power
Forgive crimes for federal offenses, explicitly does not apply to impeachment
33
Veto power
After passing both houses of Congress, Bill is presented to president for signature. President has 10 days to sign the bill, or veto the bill. No reason required for veto.
Have to veto whole legislation – cannot veto some parts of legislation and not others. (this is called a line item veto and US Supreme Court ruled it unconstitutional).
Congress can override veto with a super majority (2/3 in each house)
34
Appointments power
President is authorized to appoint all executive officers of the United States with the advice and consent of the Senate. Only federal employees who exercise significant authority on behalf of the United States must be appointed with the appointment cause.
Inferior officers can be appointed by department head, president alone or court of law. Congress cannot appoint officers.
35
Power to remove officers
President can remove federal officers, but this power is not explicitly in the constitution. Congress can pass a law that creates an agency and protects ahead of their agency from being fired by the president – Congress cannot create multiple layers of protection.
36
Commander in Chief power
President is commander-in-chief of the military, but Congress has the power to declare war.
37
Chief Diplomats power
President has the power to negotiate treaties, but treaties must be ratified by a super major majority of the Senate to have force of law.
38
Executive agreements v treaties
The president can negotiate executive agreements, which a presidential agreements with other countries that do not require Senate approval. Because these agreements do not become law, they do not bind successive presidents.
39
Impeachment
The president, vice president, and all civil officers of the United States can be removed from office on impeachment for the conviction of treason, bribery, or other high crimes and misdemeanors
House of Reps impeaches by majority vote.
Senate convicts by two-thirds vote.
Results in removal from office, disqualification from holding future office, but no criminal penalties.
40
Impoundment
Congress can pass a statute and give the president discretion to withhold the funds. If a statute requires that certain funds be spent on certain purposes, the president has no discretion to withhold the money.
Only a separation of powers violation if president fails to spend the money when Congress has required that the money be spent in a certain way.
41
Legislative veto
Congress cannot reserve for itself the right to veto legislation
42
Delegation of powers - Congress
Congress can delegate many powers to administrative agencies, but must provide an intelligible principal to guide agency discretion. Certain powers, such as the power to declare war, cannot be delegated.
43
Executive immunity
President is immune from civil liability for official act, but not immune for act done in the president’s private capacity, or before becoming president.
44
Judicial immunity
Immune for all judicial acts, but maybe liable for non-judicial acts
45
Legislative immunity
Speech and debate clause protects federal legislators from liability for anything said in the course of the regular legislative process. Protected statements cannot be used as evidence against the legislator,, and protection extends to congressional aid if conduct would have been protected had it been performed by legislator.
46
Executive privilege
Certain confidential information can be privileged, but the privilege can be outweighed by demonstrated need, such as an ongoing criminal prosecution.
47
Federalism - definition
Two spheres of government sharing power over the same jurisdiction – national government, and state government
48
Tenth Amendment
All powers not assigned by the constitution to the federal government are reserved to the states or to the people
49
Supremacy clause
Provides that federal law trumps conflicting state law, but allows federal law to run concurrently with state law if the laws do not conflict.
50
State taxation of federal government
States cannot directly taxed the federal government. States can tax income of federal employees, because that is not a direct tax of the federal government. The federal government can tax estate.
51
Federal regulation of states
States are not immune from direct federal regulation, but the federal government cannot commandeer a state government to enact or enforce a federal regulatory program
52
Dormant Commerce Clause (DCC)
DCC issues only arise when (1) states are acting in ways that disadvantage each other, and (2) congress is silent. Not relevant where congress has passed a law.
Basic rule: if Congress has not enacted legislation on a particular area of interstate commerce, then the states can regulate it so long as they do not:
- discriminate against out of state commerce: Includes state law or local laws that protect local economic interests at expense of out of state competitiors, unless it is necessary to serve and important state interest, state is acting as market participant or congress authorizes a state regulation of commerce. That’s mean.
- unduly burden into commerce;
- Purposely regulate wholly out of state activity.
53
State taxation of interstate commerce
A state can only tax interstate commerce if:
- Congress is silent;
- The tax does not discriminate against or unduly burden;
- - There is a substantial nexus between the taxing state and the property or activity to be taxed; and
- there is a fair apportionment of tax liability among the states.
54
Ad Valorem Property Taxes
Based on real or personal proeprty, and often assessed at a particular time of year.
Basically allows states to tax moveable commodities that are within their borders on a specific date (e.g. cars). BUT cannot tax goods that are merely in transit between states.
On exam, look to whether the instrumentality receives benefits and protections from the taxing state.
55
Types of federal preemption
1. Express Premption: Where congress explicitly says that state regulation in an area is preempted by federal law.
2. Conflict preemption: Applies where it is impossible to comply with federal and state law at the same time.
3. Field preemption: (Rare) Applies when federal regulation is so thick that we imply that congress has determined there cannot be a concurrent state law in the area (covering the field).
56
Interstate Compact Clause
Allows states to enter into agreements with each other with the consent of congress. Consent generally only required for "compacts" that alter the power balance between the state and federal government.
57
Full Faith and Credit Clause
Requires that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other states".
Basically means that states have to honor out of state judgments that are final and came from a court with proper jurisdiction - must have been a decision on the merits rather than procedural issue.
58
Wrongful state action
Constitution protects against wrongful conduct by the government, but not by private parties. Rights need to have been violated by a state actor.
59
Violation of rights - Private actor carrying out traditional government function
When private person/company carries on activites traditionally perfomed exclusively by state, state action exists and constitution can protect rights.
Can't just be providing a service that the government could also offer e.g. schools
60
Violation of rights - State entanglement of private actors
State action may exist if there are sufficient mutually beneficial contacts between conduct of private party and state. Conduct so entwined that it is hard to see where state action ends and private action begins.
Biggest example is joint ventures where government has management authority or is making money off private conduct.
61
Violaton of rights - State facilitation of private action
State action exists if a state has facilitated or endorsed private behavior - cannot just passively approve, has to actually endorse.
62
Procedural Due Process
Government must follow certain procedures before taking life, liberty or property.
- Federal government: 5th Amendment
- States: 14th amendment
- Applies in quasi-judicial or adjudicatory settings.
For a PDP question, ask:
1. Is the threatened interest protected?
2. If yes, what process is due?
63
Procedural due process: Protected interests
1. Life: Imposition of death penalty requires procedural due process.
2. Liberty: Physical confinement, any restriction of fundamental rights requires due process.
3. Property: Protected property interest requires legitimate claim of entitlement to the proeprty interest by virtue of statute, custom or contract. Can have a property interest in a job if it is in a contract for example.
64
Depriving a protected interest
Requires intention - an accident or negligence by a state employee is sufficient.
65
Procedural Due Process: What is required if there is a protected right?
To decide what process is due, court will consider the individual interest at stake, value of the procedure that is protecting the interest, and government's interets in efficiency (cost to provide the process).
Generally, person is entitled to:
- Notice of government's action by unbiased decision maker; and
- opportunity to be heard
66
Firing public employees
Public employees who can only be fired for cause (e.g. tenured professor or police officer) must be given a hearing before discharge unless there is a significant reason not to keep them.
67
Substsantive due process
Laws should be reasonable and not arbitrary; and protect individual freedom to the extent possible.
68
Strict Scrutiny
If strict scrutiny of a previous decision-maker's decision is required, government must show that the challenged law was necessary to meet a compelling government interest.
Compelling interest = national security, preserving public health, or remedying past discrimination.
Necessary = least restricve means to acheive government purpose
69
Rationality review
Challenger of law must show that the law is not (1) rationally related (2) to a legitimate state interest.
Places burden on the challenger rather than the government.
Legimate interest = redistributing wealth, keeping highways safe
Rationally related can be loose
70
Intermediate Scrutiny
A standard between strict scrutiny and rational review. The government muts show that the law is (1) substantially related (2) to an important government interest.
71
How to know which standard of reivew to apply to reviews of a law?
Strict scrutiny applies when a fundamental right is infringed. Rationality review applies for everything else in teh context of substantive due process.
72
What are 'fundamental rights'?
1. Right to travel: Right to travel from state to state or settle in another state. States can impose reasonable residency requirements before new residents eligible for benefits (usually 30-90 days).
2. Right to vote: Applies to all elections, but short term residency requirements for voting are permissible. Congress controls residencey requirements for federal elections.
3. Right to marry
4. Right to contraception.
5. Right to intimate association - not a fundamental right, but government has no legitiamate interest in regulating noncommercial sexual intimacy.
6. Parental rights - right to raise your children as you see fit.
7. Right to bear arms.
73
Gerrymandering
Requierd to have districts of approximately equal sizes. Racial gerrymandering is not allowed, but partisian gerrymandering is permitted.
Challenges to racial gerrymandering require evidence of a discriminatory purpose. Race IS allowed to be a factor in drawing district lines, but cannot be a predominant factor.
74
Challenging laws based on racial classifications
Strict scrutiny applies to supsect classifications of race, ethnicity or national origin.
Ps must prove a discriminatory prupose - discriminatory impact is insufficient.
How to prove discriminatory purpose:
- Face of the law
- Context or history
- Statistics
75
School Integration
1. De jure segregation - by law
2. De facto segregation - segregation that happens but is not required by law.
Only de jure violates constitution.
76
Gender Classifications
Intermediate scrutiny applies.
Permissible gender classifications include:
- Statutory rape laws;
- Military draft
- Affirmative action in favor of women for tax exemptions or increased social security
77
Equal protection clause - Default form of review
Rationality review is the default standard. Applies to age, poverty, sexual orientation.
78
Article IV (Comity Clause)
Prohibits serious discrimination against out of state individuals in allowing access to private job market.
79
Takings clause
- Comes from 5th Amendment
- Government has power to take private property for public purposes so long as it pays just compensation.
The need for private land only has to be rationally related to that purpose.
80
Types of government takings under the Takings Clause
- Taking ownership of private property and modifying for public purpose
- Giving third party right to occupy even small space on property
- Destruction of private property
81
Taking vs Regulation
If government merely regulates property, just compensation is not required.
If the government physically occupies private owner's property, then it constitutes a taking. Just having an economic impact on a property is not necessarily a taking.
82
Regulatory taking
A government rule which adversely affect's a person's property interests to such an extent that it is considered a taking.
Permanent, total loss of property's economic value will be a taking
83
Prohibited Laws (Three categories)
1. Bill of Attainder: Legislative acts that declare person or group guilty of a crime and punish them without trial.
2. Ex Post Facto Laws: Retroactive change to a criminal law is prohibited - if it criminalizes an act that was not a crime when it was committed, or deprives D of a defense that used to be available when the crime was committed.
3. Obligation of contracts: Legislative impairment of existing contracts between private parties are prohibited, unless there is an overriding need (emergency). Applies only to State laws - federal laws ok.
84
Establishment Clause
Applies when government enacts a policy which prefers one religion over other religions or over non-religions.
Courts must apply strict scrutiny to the policy in question. Must also consider the country's "historical practices and understanding" about the role of religion in everyday life.
85
Financial aid to religious institutions
Permissible if aid is secular in nature and used for secular purposes.
86
Establishment Clause - Government Actions at Public Schools
Prohibited:
- Specifically creating a school district to serve a particular religion
- Requiring prayers at schools
- Allowing prayers at graduations
- Posting the 10 Commandments on public school walls
- Prohibit teaching of Dawin and evolution or mandate teaching creationism
Alllowed:
- Permitting voluntary prayers in schools;
- Permitting Bible reading so long as it is treated as literature/poetry
- Allowing football coach to give private prayer
- Teaching 10 Commandments as example of early legal code
87
Free Exercise Clause
Generally protects the freedom to believe in any religion or no religion, and freedom to act on that belief.
Freedom of religious belief is absolute, but freedom to act may be limited.
88
Laws that target religious conduct
If law purposely targets religious conduct = subject to strict scrutiny and likely to fail
Generally applicable laws that are neutral and incidentally impact religious conduct = rationality review
89
Freedom of Expression: Content-Neutral Restriction Definition
- Includes spoken word, written materials and visual communications
- Content-neutral restriction is a law that restricts the time, place or manner of speech but not the subject matter or ideya conveyed, and the level of scrutiny depends on the forum.
90
Content-Neutral Restriction: Requirements and Types of Forums
Requirements: Governmetn can restrict speech in a public forum if restriction:
- Is neutral both on its face and applied
- Leaves open alternate channels of communication; and
- Narrowly serves a significant state interest.
Types of forums:
- Traditional public forum
- Designated public forum
- Non-public forum - government property that a reasonable observer would assume is not open to the public.
91
Government regulation of expressive conduct
Government can regulate expressive conduct where:
- Regulation in question furthers important interest;
- Interest related to expression; and
- Burden on expression is no greater than necessary
92
Content-based restriction: Obscenity
- Sex = must be erotic, gore and violence are not legally obscene
- Society sick= patently offensive to the average person
- standards = government must define obscenity with precise standards
- Serious value= If material has serious artistic, scientific or educational value, then it cannot be legally obscene
93
Child Pornography
Child pornography is unprotected speech and can be prohibited under all circumstances, but merely establishing speech as pornography is insufficient to show obscenity
94
Incitement
State can forbid speech that advocates use of force or illegal action. Restricted speech must be:
- Directed to inciting or producing imminent unlawful behaviour, and
- Likely to incite such behavior.
Abstract expression of ideas is not incitement.
95
Defamation
Can be restricted, but additional requirements must be met to restrict speech about public figures or matters of public concern.
If P is public figure, speech must be spoken with actual malice towards truth.
Public figure is someone known to public and has willingly injected themselves into public eye.
If P is private figure but speech involves matter of public concern, speech must be spoken with at least negligence towards the truth to be restricted.
96
Prohibiting speech - Vagueness and Overbreadth
Both are unconstitutional.
Vague = Ambiguous to such an extent that it gives no clear notice to a person of ordinary intelligence about what speech is prohibited.
Overbroad = Burdens more speech than necessary for government to acheive its interest
97
Campaign Finance
Use of money on a political campaign is political speech. Campaign contributions can be regulated as long as caps are not unreasonably low, and campaign expenditures are subject to strict scrutiny.
independent expenditures: Cannot be regulated.
Coordinated expenditures: Money spent in coordiantion with candidate or campaign can be regulated just like contributions.
98
Can congress tax exported goods?
Congress has broad power to tax and spend for the general welfare. However, Congress can never impose taxes on exported goods or services or on services and activities closely related to the export process.
99
Article I Suspension Clause
Persons in federal custody can challenge detention by filing writ of habeas corpus in federal courts unless Congress has suspended the writ.
100
14th Amendment - One person, one vote
14th Amendment equal protection clause "one person, one vote" principle requires that populations in state legislative districts are approximately equal. A deviation of 10% or less between populations of legislative districts is minor and does not violate teh equal protection clause absent evidence of discrimination.
101
Due process - public colleges and universities
Due process requires public colleges and universities to provide notice and a meaningful opportunity to be heard before dismissing a student for discliplinary reasons. Due process does not require a public college or university to provide a meaningful opprotunity to be heard when student is dismissed for academic reasons.
102
Restricting free speech of public employee acting in private capacity
When a public employee is speaking as a private citizen on a matter of public concern, the government can restrict that speech only if its interests in efficient government function outweighs the employee's right to free speech.
103
Thirteenth Amendment
13th Amendment prohibits all government and private entities from engaging in slavery or involuntary servitude, and empowers Congress to enact legislation that eliminates involuntary servitude.
104
Regulatory taking
Occurs when government substantially restricts the use of private property based on the totality of circumstances - (1) character or nature, (2) economic impact on property, and (3) interference with owner's reasonable investment-backed expectations
105
First amendment - Media
First Amendment shields the media from liability for publishing lawfully obtained private facts and other truthful information that involves a matter of public concern.
106
State law which limits right to vote
State or local laws that substantially impact the fundamental right to vote are usually subject to strict scrutiny. But courts will depart from this test and apply rational basis scrutiny when a state or local law limits the right to vote in a governmental unit's election to its residents.
107
Civil Litigants - Right to jury trial
Civil litigants in federal court may demand a jury trial for any legal claim in which the amount in controversy exceeds $20. The demand must be (1) served within 14 days after the last pleading directed to that issue is served, and (2) filed with the court within a reasonable time thereafter.
108
Article I, Section 8 of Constitution
Article I, Section 8 grants Congress broad war and defense powers to provide for the national defense—e.g., by imposing wage, price, and rent controls on the private civilian economy.
109
1st Amendment Freedom of Speech - Expressive Conduct
However, expressive conduct is subject to a lesser degree of protection. A governmental regulation of expressive conduct will be upheld if (i) the regulation is within the government's power to enact, (ii) the regulation furthers an important governmental interest, (iii) the governmental interest is unrelated to the suppression of ideas, and (iv) the burden on speech is no greater than necessary (i.e., is narrowly tailored).
110
Restrictions on Commercial Speech
estrictions on commercial speech are reviewed under a four-part test. First, the commercial speech must concern lawful activity and be neither false nor misleading. Second, the asserted governmental interest must be substantial. Third, the regulation must directly advance the asserted interest. Fourth and finally, the regulation must be narrowly tailored to serve that interest; this means there must be a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends.
111
False Pretenses - Definition
False pretenses requires obtaining title to the property of another person through the reliance of that person on a known false representation of a material past or present fact, and the representation is made with the intent to defraud.
112
Rule 4(k)(2)
While Rule 4(k)(2) provides for personal jurisdiction by a federal court when no state court can exercise jurisdiction over the defendant, it requires both that the claim against the defendant be based on federal law and that there be minimum contacts such that the exercise of personal jurisdiction in federal court is consistent with the laws of the United States and the United States Constitution
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114
COMPLETE AUTO TEST
state tax imposed on interstate commerce must satisfy the Complete Auto test. Under this test, (i) the activity taxed must have a substantial nexus to the taxing state, (ii) the tax must be fairly apportioned, (iii) the tax may not discriminate against interstate commerce, and (iv) the tax must be fairly related to the services provided by the state. In addition to meeting the same requirements as a tax on interstate commerce, a state tax on foreign commerce must not (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from "speaking with one voice" regarding international trade or foreign affairs issues.
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116
Free speech - 3 categories of forums
1. Traditional public forum: Historically associated with expression (sidewalks, parks)
2. Designated public forum: Not historically used for speech related activities, but government has opened for such use (publicly owned theaters, school classrooms afterhours)
3. Nonpublic forum - all public property that is not a traditional or designated public forum.
3a. Personal property - regulation of speech on private property will rarely be upheld. In traditional/designated public forums, restrictions on speech generally must be content neutral as to both subject matter and viewpoint, be narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of information
117
Freedom of association - employment
Individual generally cannot be denied public employment based simply upon membership in a political organization, only if person:
- Is active member of subversive organization;
- has knowledge of organizations illegal activity; and
- has specific intent to further those illegal objectives.
118
Claim preclusion
Applies if:
- Valid final judgment on the merits: Court must have PJ and SMJ, D must have had proper notice and opportunity to be heart, court must have had nothing further to do but order entry of judgment, and decision was made on merits of claim/defense rather than technical grounds
- Sufficiently identical claims: Original and later-filed claim must be sufficiently identical to be barred under claim preclusion
- Sufficiently identical parties: P and D must be the same, and in the same roles, in both the original action and subsequently filed action.
119
Issue preclusion
Requires:
- Same issue - facts relevant to particular issue and applicable law must be identification
- Actually litigated - issue must have been actually litigated in prior action
- Final, valid judgment
- Essential to judgment - issue that constitutes necessary component of decision reached will be considered essential
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