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Bar Exam > Constitutional Law > Flashcards

Constitutional Law Flashcards

1
Q

Citizens can’t sue states in federal court under what amendment

A

11th

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2
Q

Congress may expressly repeal state immunity if acting to enforce rights under what amendments?

A

13-15

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3
Q

3 elements of individual standing

A

Injury in fact, causation, and redressability

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4
Q

3 elements of organizational standing

A

Individual members have standing (3 elements of individual standing), claim is related to the purpose of the organization, the individual members are not necessary to adjudicate the claim

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5
Q

Mootness

A

No live controversy

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6
Q

Ripeness

A

Injury must have occurred and must not be speculative

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7
Q

Under the commerce clause, Congress has power to regulate

A

interstate commerce

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8
Q

What 3 types of interstate commerce does Congress have power to regulate

A
  1. channels of interstate commerce (highways, waterways)
  2. instrumentalities of interstate commerce (planes, trains)
  3. activities that have a substantial effect on interstate commerce
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9
Q

Substantial effect–aggregation

A

Economic activity occurring within a state (intrastate activity). Congress can regulate activity that, in the aggregate, has an effect on interstate commerce

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10
Q

Spending Power

A

Congress can condition federal funds to states and require states to implement certain regulations, permitted as long as the condition is related to the purpose of the funds

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11
Q

Congress’ conditions on federal funds to states must not be ______

A

coercive

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12
Q

Commandeering

A

States might claim that Congress is violating the 10th amendment by forcing the state legislature to pass specific legislation

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13
Q

Congress may delegate its powers to an agency as long as it provides _____ ______ standards

A

reasonably intelligible

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14
Q

Supremacy Clause

A

If state law conflicts with federal law, the federal law governs

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15
Q

3 types of implied preemption

A

Congress passes a federal law intending to “occupy the field”, state law conflicts directly with federal law, state law conflicts indirectly with federal law

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16
Q

Privileges and Immunities Clause

A

Prohibits states from discriminating against nonresidents, unless it is necessary to achieve an important gov interest

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17
Q

Privileges and Immunities clause only applies to individual ______

A

citizens

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18
Q

10th Amendment

A

all powers not expressly given to the federal government are reserved to the states

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19
Q

Under the Dormant Commerce Clause, a state may not

A

discriminate against out of state commerce or unduly burden interstate commerce

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20
Q

If a state law discriminates against out of state commerce, the state must show: (2)

A
  1. it has an important state interest
  2. there is no other non-discriminatory means available to achieve that interest
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21
Q

Market Participant Exception

A

if state is acting as a buyer or seller, it can favor local business

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22
Q

If a statute is not discriminatory , the law may still be invalid if it causes an “undue burden” on interstate commerce. A court will balance what 3 factors

A
  1. Purpose of the statute
  2. Burden on interstate commerce
  3. whether there are less restrictive means
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23
Q

the constitution protects against wrongful conduct by the ______, not _______

A

government; private entities

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24
Q

A private entity may be treated as a state actor and subject to the constitution when: (2)

A
  1. Carrying out an act or activity traditionally performed by the government
  2. Intwined with state actor (joint venture with state actor)
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25
Q

5th amendment takings clause

A

gov may not take private property without just compensation

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26
Q

2 types of takings

A
  1. physical
  2. regulatory–a law that has the effect of decreasing the value of the property
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27
Q

2 types of regulatory takings

A
  1. total: no economically viable use of the property
  2. partial: the regulation affects some economic use of the land, but there is still some economic use available
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28
Q

Exaction

A

Local gov may exact promises from a developer in exchange for construction permits

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29
Q

Exaction does NOT constitute a taking if there is (2)

A
  1. an essential nexus between legit state interests and the conditions imposed and 2. a rough proportionality between the burden on the owner and the impact on the community
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30
Q

Just compensation: property owner is entitled to fair market value of the property at the time __________

A

of the taking

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31
Q

If only a portion of the land has been taken, owner is entitled to compensation for land ______ and any loss in ______

A

actually taken; value of the land still owned

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32
Q

Local govs have the power to pass zoning ordinances, so long as they are

A

reasonably related to a legitimate gov purpose

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33
Q

Variance

A

May be granted to allow the owner to continue the nonconforming use of the land; the owner must show an undue burden if the variance is not granted

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34
Q

Zoning takings clause claim must show that the zoning ordinance amounts to a

A

regulatory taking

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35
Q

Procedural Due Process

A

the gov shall not deprive a person of life, liberty, or property without due process of law

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36
Q

Process includes

A

notice, a hearing, a neutral decision maker, and right to an appeal

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37
Q

Factors determining the amount of process due (3)

A
  1. interest affected (life, liberty, or property)
  2. value of additional safeguards
  3. burden or cost of additional process
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38
Q

Substantive Due Process

A

Whether the gov’s action impermissibly infringes on an individual’s rights

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39
Q

Standard of review for substantive due process fundamental rights (life, liberty, property, voting, travel, privacy)

A

Strict scrutiny

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40
Q

Strict Scrutiny

A

Valid if necessary to achieve a compelling governmental interest

41
Q

Standard of review for substantive due process non-fundamental rights

A

Rational Basis

42
Q

Rational Basis

A

Rationally related to a legitimate gov interest

43
Q

Equal protection clause involves the gov treating

A

classes of people differently

44
Q

If there is discriminatory intent, ____ or ______ scrutiny

A

strict/intermediate

45
Q

Disparate impact level of scrutiny

A

Rational basis

46
Q

Strict scrutiny applies to any law involving classifications based on ____, ______, _____ ______, or a law that implicated fundamental rights

A

race, ethnicity, national origin

47
Q

For a law to survive strict scrutiny, the gov must show it is (2)

A
  1. the least restrictive means
  2. to achieve a compelling gov interest
48
Q

Intermediate scrutiny applies to laws involving _____ and ____ _____

A

gender, non-marital children

49
Q

For a law to survive intermediate scrutiny, the gov must show it is (2)

A
  1. substantially related
  2. important gov interest
50
Q

For gender discrimination, must also show

A

exceedingly persuasive justification (intermediate scrutiny with a bite)

51
Q

Under the Enabling Clause of 14th Amendment Section 5, Congress may

A

pass legislation to enforce equal protection and due process rights (overriding state statutes)

52
Q

Regulation of symbolic speech/expressive conduct is valid if (3)

A
  1. It furthers an important gov interest
  2. the interest is unrelated to the suppression of ideas
  3. the burden on speech is no greater than necessary
53
Q

Overbreadth

A

statutes regulates more speech than is necessary to protect a compelling gov interest

54
Q

Vagueness

A

A statute fails to provide a person of ordinary intelligence with fair notice of what is prohibited

55
Q

A prior restrain prohibits

A

speech before it occurs

56
Q

In order for a prior restraint to be valid, it must (2)

A
  1. seek to avoid a particular harm
  2. have procedural safeguards in place (standards must be narrowly drawn, reasonable, and definite)
57
Q

Level of scrutiny for content based regulation

A

strict

58
Q

Gov must show that content-based regulation is

A
  1. necessary to achieve
  2. compelling gov interest
  3. narrowly tailored to meet that interest
59
Q

Level of scrutiny for content-neutral based regulation

A

intermediate

60
Q

Commercial speech may be prohibited if it is (3)

A

false, misleading, unlawful

61
Q

Protected commercial speech can only be regulated it (3)

A
  1. gov interest is substantial
  2. regulation directly advances the interest
  3. regulation is narrowly tailored
62
Q

3 types of unprotected speech

A
  1. obscenity
  2. incitement to violence
  3. fighting words
63
Q

Obscenity

A

The avg person, applying contemporary community standards finds the speech: appeals to a purient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value

64
Q

Incitement to violence

A

advocates use of force or unlawful action if directed to inciting or producing imminent lawless action; and is likely to incite or produce such action (creates clear and present danger)

65
Q

Fighting words

A

by their very nature, likely to incite an immediate breach of the peace

66
Q

Ex of traditional public forums

A

sidewalks, streets, parks

67
Q

Content-based regulations are subject to what kind of scrutiny in traditional public forums

A

strict scrutiny

68
Q

Content-neutral regulations are subject to what kind of test in traditional public forums

A

time, place, and manner test: must be narrowly tailored, to serve a significant gov interest, and leave open ample alternative channels of communication

69
Q

Designated public forum

A

Not historically used for speech-related activities but has been opened for such use, ex. subway station with bulletin board for public posting

70
Q

Content-based regulations are subject to what kind of scrutiny in designated public forums

A

strict scrutiny

71
Q

Content-neutral regulations are subject to what kind of test in designated public forums

A

time, place, and manner test: must be narrowly tailored, to serve a significant gov interest, and leave open ample alternative channels of communication

72
Q

Non-public forum examples

A

gov offices, jails, schools, military bases, airport terminals, can also include privately owned areas that are held open to the public such as a public lobby in a private building

73
Q

Gov can regulate speech in a non-public forum if: (3)

A
  1. regulation is viewpoint-neutral
  2. reasonably related to
  3. legitimate gov interest
74
Q

If statute shows a preference to one religion over another, or to religion over non-religion, what kind of scrutiny applies

A

strict scrutiny

75
Q

Laws that are generally applicable, but happen to impact religion, are subject to what kind of scrutiny

A

Rational basis

76
Q

Privileges or immunities clause

A

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

77
Q

11th amendment prohibits a party from suing a state (or state agency) in fed court UNLESS (4)

A
  1. state explicitly consents to waive protection
  2. lawsuit pertains to fed laws adopted under Sec 5 of 14th amendment
  3. lawsuit seeks only injunctive relief against a state official
  4. lawsuit seeks money damages from state official
78
Q

11th A does not apply to (3)

A
  1. local govs
  2. fed lawsuit by a state against another state
  3. lawsuit by the federal gov against a state
    `
79
Q

For injunctive/declaratory relief, P must show a

A

concrete, imminent threat of future injury

80
Q

3rd party standing is generally not permitted unless

A
  1. a close relationship exists
  2. it’s difficult or unlikely for 3rd party to assert their rights on their own OR
  3. 3rd party is an organization
81
Q

A case is ripe when

A

actual harm or an immediate threat of harm exists

82
Q

Court may grant pre-enforcement review after considering (2)

A
  1. hardship of the parties if no review AND 2. fitness of the record
83
Q

3 Exceptions to mootness

A
  1. case is capable of being repeated and escapes review
  2. voluntary cessation but it can resume any time
  3. OR lass actions where at least one member has an ongoing injury
84
Q

Federal regulations regarding intrastate commerce will be upheld when (3)

A
  1. there is a rational basis, 2. to conclude that the cumulative impact (aggregation) 3. has a substantial effect on interstate commerce
85
Q

Duties, imposts, and excises must be ___ ____ throughout the US

A

geographically uniform

86
Q

Congress has the power to spend for (2)

A

common defense, general welfare

87
Q

Laws that are not discriminatory but place an undue burden on interstate commerce are unconstitutional when

A

the burden on interstate commerce is clearly excessive to the putative benefits to the state gov

88
Q

14th amendment (EP) is applicable to the federal gov because it is incorporated into the

A

5th amendment due process clause

89
Q

Possessory (per se) taking

A

gov physically occupies the property (even if it’s just a small portion)

90
Q

Under the privileges and immunities clause, states cannot intentionally discriminate against nonresidents concerning (2)

A
  1. civil liberties (right to vote, travel interstate) OR
  2. important economic activities (ability to earn a livelihood)
91
Q

The P&I clause does not protect (2)

A

aliens/corporations

92
Q

2 step test to determine if gov employee speech is protected

A
  1. Did the employee speak as a citizen on a matter of public concern
  2. Did the gov entity have an adequate justification for treating the employee differently from any other member of the general public
93
Q

Gov may only regulate the right to freely associate in a group if it satisfies

A

strict scrutiny

94
Q

Gove may punish a person’s membership in a group if it proves the

A
  1. group is actively engaged in illegal activity or incited imminent lawless action
  2. personal has knowledge of the groups illegal activities AND
  3. person has the specific intent of furthering those activities
95
Q

Undue influence

A

Undue influence makes a K voidable when a party assented due to unfair or excessive persuasion from someone who dominated or held a special relationship of trust and confidence (prison guard/prisoner or attorney/client)

96
Q

VICARIOUS LIABILITY

A

employee-employer

97
Q
A
98
Q
A

Bar Exam (10 decks)

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