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Question 1

Dormant commerce clause

Answer 1

Negative implications of commerce clause. State/local law unconstitutional if place undue burden on interstate commerce

Question 2

Privileges and immunities clause of a Article IV

Answer 2

No state can deny citizen of other state of P&I it gives own citizens

Question 3

P&I clause of 14th Amendment

Answer 3

Always wrong answer unless implicates right to travel

Question 4

MEE dormant commerce clause analysis

Answer 4

(1) discriminate against out of staters?
(2) if law does not discriminate:
-P&I Art IV doesn’t apply
-If law burdens interstate commerce violates dormant commerce
Clause b/c burden exceeds benefits
(3) Analysis if law does out of staters
-if burdens interstate commerce violates dormant commerce clause unless necessary to achieve an important gov purpose (exception: congressional approval & Market participant exception)
-if discrim against out of staters with regard to ability to earn livelihood violates privileges and immunities clause of art. IV unless necessary to achieve am important gov (corp and aliens can’t use P&I)

Question 5

State taxation of interstate commerce

Answer 5

• states may not use tax system to help in state business
• only tax activities if substantial nexus to state
• fairly apportioned

Question 6

Generally private conduct need not apply with constitution. Exceptions:

Answer 6

• 13th amend prohibits private race discrimination
• Congress may apply by statute or commerce power

Private conduct MUST apply

• public function exception (private entity perf task traditionally exclusively done by gov)
• entanglement exception (gov affirmatively auth, encourages, facilitates unconstitutional activity -racially restrictive covenants, gov leases premises to business that racially discriminates)

Question 7

Rational basis test

Answer 7

Rationally related to a legit government purpose

Challenger burden of proof

Question 8

Intermediate scrutiny

Answer 8

Substantially related to an important gov purpose

Gov burden of proof, look at actual purpose

Question 9

Strict scrutiny

Answer 9

Necessary to achieve compelling gov purpose

Gov burden of proof, look at actual purpose, need to show no less restrictive alternative will achieve purpose

Question 10

Standing

Answer 10

(1) injury in fact -concrete and particularized, actual or imminent
(2) causation
(3) redressability

Question 11

MEE Procedural Due Process Analysis

Answer 11

(1) has there been a deprivation of life, liberty, or property?
- deprivation of liberty: loss of significant freedom provided by constitution or statute (harm to reputation alone not sufficient)
- deprivation of property: entitlement that is not fulfilled (reasonable expectation of cont’d receipt of benefits)
- gov liable only if intentional or reckless action or if shocks the conscience
- gov failure to protect ppl from private harm not suff (only if gov creates damages or person in gov authority does owe duty)
(2) What procedures are required?
- Test: Balance (i) importance of interest to individual, (ii) ability of add procedures to increase accuracy of fact finding; (iii) gov interest (usually efficiency)

Question 12

Economic Liberties

Answer 12

Rational basis test (only min Constitutional protection)

Question 13

Takings Clause

Answer 13

Gov may take private property for public use if provides just compensation

(1) Taking (possessory taking: gov confiscation of physical occupation of property; or regulatory taking: gov regulation that leaves no economically viable use of prop)
(2) public use (gov may take private prop but only for public use -need reasonable belief that taking will benefit public)
(3) Just compensation (measured by loss to owner)

Question 14

Contracts Clause

Answer 14

No state shall impair the obligations of contracts

• Applies only to state/local interference
• Interference w/ private K must meet Intermediate scrutiny (substantially impair party’s right? Is law reasonably and narrowly tailored means of promoting an important and legit gov interest?)
• Interference w/ gov K must meet strict scrutiny

Question 15

Ex Post Facto Clause

Answer 15

Law that criminally punishes conduct that was lawful when done or that increases punishment for crimea fter committed

Does not apply to civil cases

Question 16

Retroactive civil liability

Answer 16

Must only meet rational basis

Question 17

Privacy is fundamental right protected under substantive due process

Answer 17

Strict scrutiny: right to marry, right to procreate, right to custody of one’s children, right to keep family together, right to control children’s upbringing, right to purchase/use contraceptives, right to travel (except foreign travel -rational basis), right to vote, freedom of speech, freedom of association, free exercise of religion

Undue burden test: abortion

• Prior to viability state may not prohibit abortions but may regulate so long as do not create undue burden on ability to obtain abortions
• Spousal consent/notification laws unconstitutional

Question 18

Non-fundamental rights

Answer 18

Rational basis:

-Right to practice trade/profession, right to physician-assisted death, right to education

Question 19

MEE Equal Protection

Answer 19

(1) What is the classification?
(2) What level of scrutiny should be applied?
(3) Does this law meet the level of scrutiny

Question 20

Equal Protection against state/fed action

Answer 20

• State action: 14th Amendment EPC

- Fed action: 5th Amendment DPC

Question 21

MEE EPC: Race or national origin classifications

Answer 21

(1) Strict scrutiny
(2) How is existence of racial prejudice proven?
- Law on terms draws distinction between race
- If law facially neutral, proving racial classification requires demonstrating both disc impact and intent

Question 22

MEE EPC: Racial classification benefiting minorities

Answer 22

(1) Strict scrutiny
(2) Numerical set-asides require clear proof of past discrimination
- schools may use race as one factor in admissions decision but must show no race neutral alt which can achieve diversity (may not add points to app)
- public school systems may not use race as factor in assigning students to school unless strict scrutiny met

Question 23

MEE EPC: Gender classifications

Answer 23

(1) Intermediate scrutiny used
(2) How is the existance of gender prejudice proven?
- Classification exists on face of law (intent)
- If law facially neutral, req disc impact and intent
(3) How should gender classifications benefiting women be treated?
- Based on role stereotypes not allowed
- Designed to remedy past disc adn diff in opp OK

Question 24

MEE EPC: Alienage classifications

Answer 24

(1) Generally strict scrutiny
(2) Only rational basis test used for alienage classifications concerning self-gov and democratic process
- Can disc in voting, serving on jury, being police officer/politician/teacher/probation officer (not notary)
(3) Only rational basis test used for Congressional disc against aliens
(4) Intermediate scrutiny used for disc against undoc alien children

Question 25

MEE EPC: Disc against non-marital children

Answer 25

(1) Intermediate scrutiny (2) Laws that deny benefit to all non-marital children but grant to all marital children unconstitutional (only OK if to prevent fraud)

Question 26

Rational basis used for discrimation of:

Answer 26

-age, disability, wealth, economic regulations, sexual orientation

Question 27

Defamation

Answer 27

(1) Public official/public figure: actual malice, P must prove falsity, compensatory damages assumed, can also get punitive (2) Private figure, matter of public concern: need negligence and actual injury, can get compensatory damages but presumed/punitive damages req actual malice, P must prove falsity (3) Private figure, matter of private concern: need negligence, can get comensatory for actual injury; presumed/punitive doesn't need actual malice, burden on P to prove truth

Question 28

Freedom of Speech: Public Forums (sidewalks/parks)

Answer 28

Public forum: gov properties that gov const required to make available for speech ``` Strict scrutiny Time, place, manner restriction: (1) Content neutral (2) Narrowly tailored to (3) Serve an important gov purpose (4) leaves open alt methods of communication ```

Question 29

Freedom of Speech: Designated public forums

Answer 29

Gov properties that gov could close to speech but chooses to open to speech ``` Strict scrutiny Time, place, manner restriction (1) Content neutral (2) Narrowly tailored to (3) Serve an important gov purpose (4) leaves open alt methods of communication ```

Question 30

Freedom of speech: limited public forums

Answer 30

Gov properties limited to certain groups or dedication to discussion of only certain subjects. (1) viewpoint neutral; (2) regulation reasonable to achieve legitimate gov purpose

Question 31

Freedom of speech: non-public forums (e.g. military base/airport)

Answer 31

Gov properties that gov constitutionally can and does close to speech (1) viewpoint neutral; (2) regulation reasonable to achieve legitimate gov purpose

Question 32

Incitement of Ilegal activity

Answer 32

Not protected. Substantial likelihood of imminent illegal activity and if speech is directed to causing imminent illegality

Question 33

Obscenity and sexually oriented speech

Answer 33

(2) Obscenity and sexually-oriented speech (i) material must appeal to the purient interest (ii) material must be patently offensive under the law prohibiting obscenity (iii) taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (3) Gov can use zoning ordinances to regulate location of adult bookstores/movie theaters (4) Child porn may be completely banned (5) Gov may punish private possession of child porn (6) Gov may seize assets of businesses convicted of violating obscenity laws (7) Profane and indceent speech generally protected Execeptions: over broadcast media, in schools

Question 34

Commrercial Speech

Answer 34

- Advertising for illegal activity and false or deceptive ads not protected - True commercial speech that inherently risks deception can be prohibited (prof advertising under trade name, attorney soliciting clients in person for profit, BUT MAY NOT prohibit accountants from in-person solicit) - Other commercial speech can be egulated if intermediate scrutiny met - Gov reg of commercial speech must be narrowly tailored (but doesn't have to be least restrictive alt)

Question 35

Freedom of Association

Answer 35

Strict scrutiny To punish membership in group, must be proven that person: (1) actively affiliated with group (2) knowing of its illegal activities, and (3) with the specific intent of furthering those illegal activities -Laws prohibiting group from discriminating constitutional unless interfere with intimate association or expressive activity

Question 36

Establishment Clause

Answer 36

(1) secular purpose for law (2) effect must neither advance nor inhibit religion (3) no excessive gov entanglement with religion

Question 37

Private action will constitute state action when:

Answer 37

(1) private actor is performing a traditional and exclusive state function, or (2) state is significantly involved in the private action - Only running a town or election is traditional and exclusive gov function - Sig state involvement when enforcement of private aciton invovles use of courts or private entities entertwined with gov entities (e.g. most of schools in state belong to association made up of state employees who meet during employment hours and funded by receipts from school events) - State regulation of industry, licensing/regualation, does not make state action

Question 38

Transaction Tax

Answer 38

Privilege or occupation tax (tax on privilege of doing business in state). When applied to local activities of interstate company, constitutional if (1) does not discriminate against interstate commerce; (2) activity taxed has substantial nexus to taxing state; (3) tax is fairly apportioned, (4) tax fairly relates to services provided by taxing state

Question 39

Property Clause of Article IV, Section 3

Answer 39

Congress has power to make all needful rules and regulations respecting the territory or other property belonging to US (e.g. statute requiring air bags in cars driven on US military bases)