Constitutional law 2.0 Flashcards Preview

NY/ MBE Bar Study > Constitutional law 2.0 > Flashcards

Flashcards in Constitutional law 2.0 Deck (16):

Under DP, what fundamental rights require strict scrutiny review?

1. right to travel
2. right to privacy
3. voting
4. all first amendment rights
-everything else gets rational basis test (taxation, zoning, punitive damages)


IF state court decision based on state and federal grounds, wen can USSC hear case?

only when SC's reversal of federal law ground will change result of case (if fed law reversal inconsequential SC cant hear case)


In what 2 scenarios will federal courts abstain from resolving a dispute?

1. unsettled question of state law
2. during pending state court proceeding (federal court will not enjoin)


In what 2 situations will court not use strict scrutiny for alienage case?

1. intermediate for laws w/ undocumented alien kids & education
2. rational basis for laws involving democratic process (ex voting, jury service, becoming police/ teacher)


Under EP, what benign government discrimination is allowable? (2)

Government may use affirmative action like policies in law/ regulation but must show
1. past history of racial discrimination AND
2. law must be narrowly tailored to eliminate discrimination
(ex race can be important but non-predominate factor in higher-ed admissions)


what level of scrutiny is applied when an individuals right to travel is allegedly restricted?

Usually strict scrutiny will be applied but this not always the case. Rational basis is never used.


What 2 part test must a government regulation pass when attempting to regulate speech in a non-public forum?

1. viewpoint neutral
2.reasonably related to legit government purpose


What are the 4 justiciability requirement/s?

1. standing
2. ripeness
3. mootness
4. political question


What 2 factors give a P proper standing?

1. injury (present or show likelihood of future harm or imminent)
2. redressability (ct action/ relief sought will remedy/ eliminate harm)
-generally no 3rd party standing, no general grievance)


What are the 3 exceptions to the general ban on 3rd party standing?

standing found where
1. close relationship (ex doctor-patient)
2. injured 3rd party unlikely/ unable to assert own rights (ex. ciriminal D against juror)
3. org. suing on behalf of members (injury related to orgs purpose,member participation unnecessary ex dentist), members affected same way)


What does sovereign immunity preclude? (2)

1. suits by individual against a state
2. suits against a state in state courts or federal agencies


What 3 factors allow the USSC to hear cases?

1. cert (final judgement on merits)
-no independent & adequate state law ground
-must change result
2. appeal fr 3 judge panel
3. suits b/w the states


What 2 elements must a public official/ figure show to prove defamation?

1. falsity of statement
2. actual malice by D
-knowledge that statement was false OR
-reckless disregard


What 2 elements must a private person show to prove defamation?

1. falsity of statement
2. negligence by D


What 3 part test must a law pass to comply with the establishment clause?

1. must be secular purpose
2. effect of law must not enhance nor prohibit religion
3. must not be excessive entanglement with religion
-French teacher example


When can a law prohibit exercise of religion?

Only when law is neutral w/ general applicability w/o desire to interfere w/ any religion (applies to all and not specific group)