Constitutional Law

Question 1

PDP Balancing - to determine what process is due

Answer 1

The court balances:

1. The importance of the private interests being affected;
2. The risk of error under current procedures AND
3. The importance of state interests relative to the burdens on the government that would arise from additional safeguards.

Question 2

The 11th Amendment prohibits a party from suing a state or state agency in federal court.

There are 4 exceptions where a state may be sued:

Answer 2

1. The state explicitly consents to waive its 11th Amendment protections;
2. The suit pertains to federal laws adopted under Section 5 of the 14th Amendment;
3. The suit seeks only injunctive relief against a state official for conduct in violation of the constitution or federal law; OR
4. The suit seeks money damages from a state official

Question 3

3 Types of Regulatory Takings

Answer 3

1. Depriving Owner of All Economically Viable Use – is a per se taking
2. Penn Central Taking
3. Excessive Conditions on Approval of a Permit

Question 4

Penn Central Taking - 3 factors balanced

Answer 4

1. The economic interest of the regulation on the claimant;
2. The extent of the interference; AND
3. The character of the governmental action

Question 5

Magic words:

What does the government have to show to justify the imposition of onerous land use permit conditions?

Answer 5

There is an ESSENTIAL NEXUS between the state interest and permit condition; AND

As pertains to this permit/project, the condition is PROPORTIONAL to advancing the state interest.

Question 6

Magic Words:

State laws which have the effect of favoring in-state to out-of-state economic interests must be:

Answer 6

NARROWLY TAILORED to achieve a legitimate, NON-PROTECTIONIST state interest.

Question 7

Magic Words:

To determine whether, under a DCC analysis, a facially-neutral state law is nonetheless “unduly burdensome” on interstate commerce, the court determines:

Answer 7

Whether the burden on interstate commerce is CLEARLY EXCESSIVE to the putative benefits to the state and local government.

Question 8

Fighting Words are words, which by their very utterance:

Answer 8

(1) Inflict injury; OR

(2) Tend to incite an immediate breach of the peace.

Question 9

Incitement to Riot words are words which:

Answer 9

(1) Advocate the use of force or illegality;

(2) Are directed to inciting or producing IMMINENT lawless action; AND

(3) Are LIKELY to incite or produce such an action.

Question 10

Licensing Requirements are valid when:

Answer 10

(1) The government has an important reason for licensing;

(2) Specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; AND

(3) Procedural safeguards are in place.

Question 11

Magic Words:

Commercial speech that is–as a threshold—truthful and not misleading CAN be regulated with regulation which:

Answer 11

1. Directly advances;
2. A SUBSTANTIAL government interest; AND
3. Is no more restrictive than necessary.

*False or misleading speech may be regulated with laws that only need to withstand rational basis review

Question 12

The First Amendment protects against government interference with a person’s right to associate with any group or organization.

But this right is not absolute. The government CAN punish (i.e., deny public employment to or criminally prosecute) persons who:

Answer 12

(1) are active members of a subversive organization
(2) know of the organization’s illegal objectives AND
(3) specifically intend to further those objectives.