MBE and NY Distinctions (Con Law) Flashcards Preview

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Flashcards in MBE and NY Distinctions (Con Law) Deck (45):

Substantive Due Process:

Pre-Viability Abortion Rights

& the Undue Burden Test


1st Amendment:

Freedom of Association

& Political Parties/Elections


Equal Protection:

Gender Discrimination Chart



Substantive Due Process: Right to Travel

& Residency Requirements


First Amendment: Freedom of Association (Fundamental)

What is required for gov’t to prohibit group membership? 

Regulate private discrimination?


First Amendment:

Establishment Clause

What are the 3 elements

of the Lemon test?


First Amendment:

Regulation of Locations

for Dissemination of Speech


First Amendment:

Free Exercise Clause

What kind of law is immune

to challenge under the

Free Exercise Clause?

Free Exercise Clause Cannot Be Used to Challenge A Neutral Law of General Applicability


Neutral: not motivated by religious animus
General Applicability: applies to everyone, not just religious entity


State has initial burden to prove (a) neutral and (b) general applicability, then RB (or if state doesn’t prove, then SS).


E.g. gov’t cannot deny benefits to people who quit their jobs for religious reasons.


It doesn’t matter how much a neutral law

of general applicability burdens religion,

it is only subject to rational basis review.


First Amendment: Unprotected & Less Protected Speech

Incitement of Illegal Activity: speech directed to and substantially likely to cause imminent illegality

Sexually-Oriented Speech (1) prurient interest, (2) patently offensive, (3) no artistic, literary, political or scientific value

Obscenity: generally protected.  2 Exceptions: free, over-the-air broadcast media (intrusive, kids); Schools
Commercial Speech: must meet I.S. (narrowly tailored but not least restrictive) (Central Hudson)

False/Deceptive Ads: unprotected; true commercial speech capable of deception (professional trade names, in-person attny solicitation, NOT accountant)

Privacy-Related Speech: govt may limit its dissemination of info to protect privacy, can’t punish truthful broadcast of private info, IF media didn’t participate in illegality.
Defamation: depends on ID of Π (public official/figure vs. private figure).


First Amendment:

Sexually Oriented Speech

What is the test for

sexually-oriented speech?

Test to ID Sexually-Oriented Speech: (1) prurient interest, (2) patently offensive, (3) as a whole, lacks serious artistic, literary, political, or scientific value


Zoning Ordinances OK if Some Channel is Allowed
Child Porn = always obscene
Can’t punish private possession, except child porn
May seize assets of businesses violating obscenity laws (7 obscene items = OK to destroy $9 million)



First Amendment:

Symbolic Speech

When is symbolic speech protected?  What is the test for regulation of symbolic speech?


First Amendment:

Defamation Liability Chart


First Amendment:

Content-Based vs.

Content-Neutral Restrictions

Content-Based Restrictions à S.S.


Subject matter restrictions (S/M))
Viewpoint restrictions (V/P)


Content Neutral Restrictions à I.S.


Applies to all speech regardless of content/viewpoint (parade in city park)


First Amendment:

Vagueness and Overbreadth

When is a law unconstitutionally overbroad or unconstitutionally vague?

Vagueness and Overbreadth


Vagueness: reasonable person cannot tell what speech is prohibited and what is allowed

E.g. “any book that corrupts morals of youth”


Overbroad: regulates substantially more speech than the constitution allows to be regulated

E.g. “all live entertainment”




Fighting words laws are always

unconstitutionally vague and overbroad.


Equal Protection: Fundamental Rights Under EP

What fundamental rights are protected by the EP Clause rather than the DP Clause?

Right to Travel


Laws that prevent people from traveling state-to-state must meet S.S.
Durational Residency Requirements: S.S. (max of 50 days for voting)
BUT foreign travel, ONLY R.B.


Right to Vote


Laws that deny some citizens: S.S. (poll taxes)

Property ownership except water dist. elect.

One-person-one-vote: same # in each district
At-Large OK: unless discriminatory purpose
Race in drawing district lines: S.S.
Counting uncounted votes w/o stds.: Fail S.S.


First Amendment:

Prior Restraints


Substantive Due Process: Privacy

Chart on Scrutiny Levels for Various Privacy Rights


Equal Protection

Level of scrutiny for age, disability, wealth, economic regulation, sexual oriented classifications?

Rational Basis for:

Disability (Cleburne)
Economic Regulation (EP or DPL)
Sexual Orientation


Discrimination Against Non-Marital Children

Intermediate Scrutiny
Laws that grant benefit to ALL marital, and deny to all non-marital FAILS I.S. (except requiring all non-marital children to establish paternity during life OK)


Substantive Due Process: Economic Liberties

What protection is afforded to economic liberties through substantive due process?

Economic Liberties (employment, trade, minimum wage, consumer protection): since Lochner minimal protection: rational basis review


Takings: (1) taking for public? (2) just comp pd?

Possessory Taking = physical taking
Regulatory = leaves NO reasonable economic use
Public Use = broadly defined
Just Compensation = Loss to Owner, NOT govt gain


Contracts CL (I§10): applies ONLY to state substantial interference w/existing contracts;

Apply intermediate scrutiny: reasonably & narrowly tailored to promote important interest

Applies to state interference w/its own contracts; never to fed gov interference.
Ex post facto NOT in civil cases



Equal Protection

What level of scrutiny is applied to race, gender and alienage?

Race/National Origin (S.S)

Existence: facial OR impact + intent (but-for)
Benign Classifications: still SS; quotas ONLY clear past discrim (narrow); 1 factor for schools, but no points; aff. act. can’t disrupt seniority system


Gender Classification (I.S.)

Existence: facial OR impact + intent (but-for)
Benefit Women: NOT based on role-stereotype; BUT remedy past discrim/actual differences OK.


Alienage (Non-US Citizens)

S.S.: welfare, civil service jobs; I.S.: children (schools)
ONLY R.B.: self govt/dem. process: voting; jury; PD/probation; teacher (dem. value), NOT notary

Rational BasisàCongressional action (immigration)


Bill of Rights:


Selective Incorporation (Almost-Total)


B/c Bill of Rights ONLY applied to fed, individual amendments have been incorporated to the states through the 14th Amendment.  The only Amendments NOT to be incorporated are:


2nd Amd. Right to Bear Arms
3rd Amd. Protection Against Troop Quartering
5th Amd. Right to GJ Indictment in Criminal Case
7th Amd. Right to Jury in Civil Cases
8th Amd. Protection Against Excessive Fines

BUT, the rest of the 8th Amd. is incorporated


Procedural Due Process

What deprivations of liberty

or property are protected by the due process clause?

Deprivation of Liberty Requiring Due Process:

Institutionalization of an adult BUT NOT a child, not prisoners, not reputation
School Discipline (notice, opportunity to explain)
Parental Custody (notice, hearing)


Deprivation of Property Requiring Due Process

(Intentional/reckless govt conduct (NOT negligence),

or in emergencies if conduct shocks conscience)

Welfare Benefits (notice, hearing)
SSD Benefits (post-deprivation hearing)
Punitive Damages (instructions to jury, jud review)
Prejudgment Attach/Seize (notice, hearing; except exigencies; innocent owners ok if use w/permission)
Public Employment (prior notice, opp. respond, sub. Evidentiary hearing); not probationary employees.


Procedures: balance (1) individ. Interest, (2) accuracy of procedures, (3) govt interest.


Levels of Scrutiny

What are the requirements of each of the three levels of scrutiny?

Rational Basis (R.B.): rationally related to legitimate govt purpose

purpose need only be conceivable
challenger has burden of proof


Intermediate Scrutiny (I.S.): substantially related to important govt purpose:

Actual purpose (not merely conceivable)=important
Means Narrowly Tailored/Substantially Related; but NOT necessarily least restrictive alternative
Govt retains burden of proof


Strict Scrutiny (S.S.): necessary to achieve compelling govt purpose

Compelling is most important ends
Necessary is narrowly tailored/least restrictive alternative
Govt retains burden of proof
If facially neutral = initial burden on P to prove discriminatory intent/purpose, then shifts to state.


State Action Doctrine


Full Faith & Credit

When do the requirements of FF&C apply to a judicial action?

Full Faith and Credit


Courts in one state must give FF&C to judgments of another state as long as:

Court that rendered judgment had PJ/SMJ
Judgment was on the merits
Judgment was final.


Dormant Commerce Clause (DCC)

What is the definition of the dormant commerce clause (DCC)?

Dormant Commerce Clause


Negative implication of the commerce clause: prohibits state regulation from imposing undue burden on interstate commerce (even w/o explicit Congressional action).


Privileges & Immunities

Clause of Art. IV


State Regulation of Interstate Commerce: Flow Chart


Federal Executive Power:

Foreign Policy

POTUS Foreign Policy Power: Broad


Treaties: negotiated by POTUS/ratified by Senate

Prevail over state laws
Conflict betw. treaty and statute: most recent
But, conflict w/Constitution: treaty falls


Exec. Agreement: signed by POTUS/foreign leader

Prevail over conflicting state laws
No ratification; can be for any purpose
BUT, federal law/Const. preempt agreement


C-I-C Power to Use Troops is Nearly Unlimited

Either political Q, or
Based on POTUS broad foreign affairs powers.


Federal Executive Power:

Domestic Affairs & Liability

POTUS: Federal Powers and Liability


Appointment:  Congress can vest appointment of lower officers in POTUS, or depts., judiciary, but NOT in itself
Removal: POTUS may fire any exec. Branch officer, BUT Congress can limit removal to good cause where independence from POTUS is desirable (Indep. Pros.).
Impeachment: officers/judges can be impeached and removed for high crimes/misdemeanors; impeach in House (majority) and trial in Senate (2/3 for removal).
POTUS Civil Liability: absolute immunity from $ damages for in-office acts (Nixon), but not before office (Clinton).
POTUS Executive Privilege: privilege will yield to other interests (e.g. criminal evidence – Watergate)
Pardon: federal crimes, BUT NOT impeachment, civil actions, state crimes


Federal Legislative Power

What limits exist on Congress’ ability to delegate its powers to the executive/judiciary?

Non-Delegation Doctrine


Formal requirement: is that Congress must provide intelligible standards, but no delegation has been struck down since 1936; virtually unlimited.



NO legislative veto (less than bicameralism & presentment)
NO line item veto for POTUS
Congress CANNOT delegate executive power to itself or its Officers

(e.g. Act struck down à required that if executive doesn’t cut budget, Comptroller (Congressional Officer) would impose across-the-board cuts).


Federalism: Preemption

and the Supremacy Clause

Supremacy Clause = Federal Laws Preempt State Laws


Express Preemption: federal statute says that federal law wholly occupies area where Congress has authority, even if state law doesn’t conflict.
Implied Preemption: text is silent BUT: (1) laws conflict, (2) state law impedes fed objective, (3) clear Congressional intent to preempt.


States may not tax or regulate fed gov activity

E.g. taxing federal banks (McCulloch)
E.g. can’t require fed gov to adhere to state standards (e.g. military base and state air stds).
BUT, states can tax private enterprise on fed land and can impose a general tax on a service provided to the fed government (telephone svc).


Federal Legislative Power

Chart w/ Examples of

Congressional Powers


Federal Legislative Power

What are the 5 main categories of federal legislative power?

Congressional Powers


Necessary & Proper Clause: any means not otherwise prohibited to carry out any proper authority.
Tax/Spend Power: for the general welfare; can support spending for any public purpose
Commerce Power: (1) channels (places e.g. highways); (2) instrumentalities, persons, things (e.g. trucks, radio waves), (3) substantial effect: broad power for economic effects, even in aggregate (wheat for personal consumption); narrow power for non-economic activity (DV, guns) and NO cumulative effects.
14§5: Congress may NOT create new rights or expand scope; may only prevent remedy violations of rights recognized by USSC proportionate/congruent
Police Power: usually a red herring; ONLY M-I-L-D: Military, Indian Reserv., Lands (Fed/Territories), DC


11th Amendment

Sovereign Immunity

When and how can federal or state courts hear suits by private parties against state governments?

11th Amendment Sovereign Immunity


Prohibits fed courts from hearing suits by private parties against states

Alden v. ME: includes state govts/federal agencies


3 Exceptions

Explicit state waiver
Pursuant to 14§5 Laws
Fed Gov can sue State Govs


Suits vs. State Officers OK: Injunctive relief, personal damages, NOT retroactive damages paid from state treasury; municipalities are NOT included.


Abstention: fed cts may NOT

enjoin pending state proceedings


10th Amendment Limit on Constitutional Powers

How and when can Congress compel state regulatory or legislative action?

10th Amendment: powers NOT given to fed are reserved to the people/states


Generally, Congress CANNOT compel state action, but CAN induce states through spending programs if requirements to receive funds are:

Clearly stated, AND
Relate to the purpose of the spending program


Fed cannot tax essential state activities, but can tax proprietary functions (state trying to make $).


Example: 21drinking age for highway funding



Political Question


Political Questions


Questions constitutionally committed to another branch or incapable of judicial resolution.



Republican Form of Govt. Clause (usually state or local govt. practice)
President’s conduct of foreign policy
Impeachment and Removal Process
Non-reviewable power of Congress
Electoral College (b/c of 12th amd.)




Supreme Court Review

What is an independent and adequate state grounds of decision?

Independent and Adequate State Grounds



When state SC decision rests on an independent and adequate ground of state law, such

that even if Π wins on the federal grounds,

it will not change the result, it is NOT justiciable.


NOTE: If state law is adequate but the law is interpreted identically to a federal law, the state law is not independent b/c the federal reinterpretation changes state interpretation


Justiciability: Mootness

What does it mean for

a case to be moot? 

What are the 3 exceptions

to this basic rule?




Mootness: events after filing of suit end Π’s injury b/c cases require a live controversy.


3 Exceptions:

Wrong capable of repetition but avoiding review
Voluntary cessation, but free to resume
Class action suits: mootness of named Π does NOT moot action, if injury ongoing to other Πs.


Supreme Court Review

What are the 2 types of cases that do NOT come to the Court through a Writ of Cert?

Supreme Court Review


All appeals from state courts and federal courts of appeals come to the USSC on writ of certiorari.



Appeals from 3-judge federal district courts
Suits betw. states (original/exclusive jurisdiction)


Note: By statute, Congress can change the USSC’s appellate jurisdiction, but NOT original jurisdiction



3rd Party Standing

What is the rule regarding

3rd Party Standing?  What are the 3 exceptions to the rule?

3rd Party Standing


General Rule: Δ’s cannot assert claims of 3rd party injuries not before court (not personally suffered).


3 Exceptions:

Close relationship between Π /3rd party (e.g. docs/abortion; bartenders/3.2% beer ).
Injured 3rd party unlikely to assert own rights (e.g. jurors excluded on race)
Organization on behalf of members, if (1) members would have standing, (2) interests are germane to org’s purpose, (3) claim/relief do not require member participation).







Rule: Π is NOT entitled to review of a statute or regulation before its enforcement.


Exception: Pre-Enforcement Review IS OK IF:

Π will suffer immediate hardship, AND
Issues on record are fit for judicial review.




Justiciability: Standing

What are the 3

requirements for standing?

3 Requirements for Standing in Federal Court


Injury: actually, personally suffered; injunctive or declaratory relief requires likelihood of future harm (Lyons chokeholds)
Causation: (1) Δ caused the injury,
Redressability: favorable court decision likely to redress harm


Justiciability: Standing

Generalized Grievances


Generalized Grievances


Π cannot sue solely as citizen/taxpayer interested in having the government follow the law.


N Caution: does NOT include a harm that a large group of people actually and personally suffers.


Exception: taxpayer CAN challenge government expenditures as violating Establishment Clause