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NY/ MBE Bar Study > Constitutional law > Flashcards

Flashcards in Constitutional law Deck (41):
1

When will speech w/ a profit motive (TV commercial) be given 1st amendment protection?

If the regulation is narrowly tailored to protect a substantial state interest

2

What types of immunity are granted to a state via the 11th ammendment?

Immunity from suits in federal court by a citizen of the state when citizen seeks damages

3

What 2 types of immunity are NOT granted to a state via the 11th ammendment?

1. suits for injunctive relief
2. suits against state officials in their individual capacity

4

What is the political question doctrine?

fed cts will not hear case involving political questions because they should be solved by another branch of government (ex. challenge to president's conduct on foreign policy)

5

What aspects to campaign funding can and cant be limited by government?

campaign expenses cannot be limited

Campaign contributions can
-exception: corporate expenditures may be limited

6

What 2 types of suits against federal officers are allowed?

1. suits for injunctive relief
2. suites for $ damages where officer pays from their own funds (not the state treasury)

7

What are the 3 exceptions to the sovereign immunity doctrine?

1. state voluntarily waives the immunity
2. a 14th amendment equal protection suit brought against the state (state may be sued in Fed. court)
3. federal government vs. state government (allowed)

8

What are the 3 levels of scrutiny used by USSC?

1. rational basis
2. intermediate
3. strict

9

What is rational basis scrutiny?

rationally related to legit government interest

10

What is intermediate scrutiny?

substantially related to important government purpose

11

What is strict scrutiny?

necessary to achieve a compelling government purpose

12

In what 2 instances will a non-discriminatory regulation of interstate commerce by a state be valid? (commerce)

1. when the burden the regulation places on commerce doesnt outweigh the states interest
2. and there are no less restrictive alternatives (balancing test)

13

Under what 2 conditions may government "take" property?

1. when the taking is for public use (broad)
2. and just compensation is given (fair market value based on owner)
- taking could be based on effect of regulation/ substantial de-valuing of property

14

What 3 things must government prove to punish a person for membership of group carrying out illegal activities?

1. active affiliation with the group by the person
2. person's knowledge of groups illegal activities
3. person's specific intent to further group's illegal activities

15

What 4 exceptions allow a D to be tried twice for same crime?

1. jury unable to agree on a verdict
2. mistrial
3. re-trial after successful appeal
4. D's breach of agreed plea bargain

16

What are ex post facto laws?

laws that retroactively change the legal consequences of acts committed prior to their enactment (unconstitutional)

17

What level of scrutiny is applied to cases involving right of assembly?

strict

18

What 5 areas may congress regulate under commerce clause?

1. channels of commerce
2. instruments (ex. trucks, internet, people)
3. activities that have substantial effect on commerce (ex personal wheat growing)
4. dormant commerce clause
5. taxation of commerce

19

What happens of a state-tax discriminates against interstate commerce?

it will be held invalid

20

What 3 step test must a non-discriminate state tax that affects interstate commerce pass?

1. substantial nexus
2. fair apportionment
3. fair relationship to services/ benefits provided by state

21

What 3 part test must a government regulation pass when attempting to regulate speech in a public forum?

1. regulation must be neutral in terms of subject matter & viewpoint
2. narrowly tailored to serve important govt interest (intermediate)
3. and leave open alternative channels of speech
-ex: streets, sidewalks, parks, school rooms

22

What is the general rule regarding regulation of speech? (content v. conduct)

Generally, regulations of content are less likely to be upheld then regulations of conduct. Law gives time, place. and manner regulations.

23

When will a discriminatory regulation of interstate commerce by a state be valid?

1. if the regulation furthers an important state interest
2. and no reasonable non-discriminatory alternatives exist

24

What are the 3 exceptions to the mootness ban?

1. wrong capable of repetition -- may be moot currently but could be valid in the future (ex abortion, elections)
2. D voluntarily ceases activity (ex: settlement)
3. class action suits (will proceed even if moot for 1 named P)

25

What level of scrutiny is applied to requirements limiting campaign contributions?

intermediate

26

What makes a claim ripe?

There is an imminent threat of harm

27

How will a court determine what types of procedures are sufficient under procedural due process?

the court uses a balancing test that weighs the importance of a given interest to an individual & the ability of additional procedures to increase the accuracy of fact finding against the govt's interests in administrative efficiency.

28

What 7 fundamental rights does the 14th amend due process clause protect w/ strict scrutiny review?

1. right to marry
2. right to procreate/ use contraceptives
3. right to custody of your children
4. right to raise family together
5. right to raise children
6. right to an abortion
7. right to refuse medical treatment

29

What 4 part test is used to determine if a trial is speedy under 6th amendment?

1. length of delay (over 1 yr bad)
2. reason for delay (cant be unreasonable/ to gain undue advantage)
3. time & manner D asserted her right to extend/delay proceedings (did D use right to purposely delay the process)
4. degree of prejudice to D

30

Under the 14th amendment E P clause, what 2 things must a challenger show if a law is facially- neutral?

1. discriminatory impact (application)
2. AND discriminatory intent (motive- hard to show)

31

What must a death penalty law include to be valid under the 8th amendment?

must give D a chance to present mitigating facts and circumstances

32

What level of scrutiny is applied to content-based restrictions of speech?

Strict

33

What level of scrutiny is applied to content-neutral restrictions of speech?

intermediate scrutiny
-law upheld if regulation shown to advance important interests unrelated to suppression of speech & does not burden substantially more speech than necessary (not over broad)

34

When will a restriction on speech be invalid for vagueness or over breath? (2)

1. when reasonable person cannot tell what speech is prohibited (vague)
2. and law prohibits more than what is constitutionally allowed (overbroad)= prohibited substantially more speech than necessary (ex fighting words)

35

What 6 types of content-based speech can be regulated by congress?

1. incitement of illegal activity (clear and present danger)
2. obscenity & sexually oriented speech
3. commercial speech
4. defamation
5. privacy considerations
6. fighting words
-law can still be invalid for vagueness, overbredth, unfettered discretion

36

Under EP, what are the 3 ways a law can be shown to be discriminatory?

1. facial discrimination (sometimes even w/o racial language on its face)
2. discriminatory application
3. discriminatory motive (hard to show, statistical proof of discriminatory impact alone not sufficient- police officer exam case)

37

Under EP, what may a statute not do during the pre-viability stage of a woman's pregnancy?

May not adopt regulations that impose an undue burden or substantial obstacle to the womans right to have an abortion (ex. spousal consent- undue burden informed consent, waiting period, parent consent) ** physician and partial birth adoption ban are allowable

38

Under EP, what may a statute not do during the pre-viability stage of a woman's pregnancy?

May not adopt regulations that impose an undue burden or substantial obstacle to the womans right to have abortion (ex. spousal consent- undue burden informed consent, waiting period, parent consent) ** physician and partial birth adoption ban are allowable

39

Under EP, what 2 areas are given intermediate scrutiny review?

1. gender
2. legitimacy

40

Under EP, what 2 areas require strict scrutiny analysis of laws?

1. race
2. alienage- for state laws not federal
-welfare benefits case

41

Under EP, what fundamental rights require strict scrutiny analysis?

1. right to travel (in us) (rational basis test for foreign travel restriction laws)
2. right to vote
3. right to privacy*
4. all 1st amendment rights (ex speech, assembly)*
*also due process