1
Q
Can the federal court hear the case?
A
- Is the case one the federal court can hear?
FQ, different states, citizens of different states, citizen vs. person from foreign state, admiral/maritime, U.S. is a party. - Is the case allowed under the 11A?
A person cannot sue a state in another state/federal court, unless the state or Congress consent. This rule does not apply to:
i. Government claimants
ii. If suing local, municipal, county gov’t
iii. Seeking injunction against a named state officer or agency for:
A. Injunctive relief
B. Money damages to be paid personally
C. Prospective payment to be paid by the state - Is the case pending in state court?
If so, the federal court likely will not hear it unless there is proven harassment or it is being prosecuted in bad faith.
4. Does it involve a political question? A matter reserved for another branch of government, or one that the judiciary is incapable of answering. Examples: - Republican form of gov't clause - Procedure for amending constitution - Process of removal or impeachment - Election/qualifications of congress - Foreign affairs reserved for president - Seating of delegates at political convention
- Does the plaintiff have standing?
A. Injury: there is an actual or imminent injury
B. Causation: it is fairly traceable to the defendant’s conduct
C. Redress: a favorable outcome will prevent the harm or mitigate the injury
The case must also be ripe and cannot be moot.
Ripe: There was an actual injury or it is substantially certain
Moot: There must be a live case or controversy throughout the proceeding. Examples of things that are not moot, but look moot:
- Collateral consequences
- Class actions
- Defendant voluntarily stopped
- Injury is capable of being repeated to plaintiff
Some specialized cases of standing:
- Taxpayer standing
- Legislator standing
- Third-party standing
- Organization standing
2
Q
List of Congress’s Powers
A
1 Necessary and proper (combined with an enumerated power) 2 Taxing 3 Spending 4 Commerce 5 Property 6 War & Defense 7 Admiral and maritime 8 Investigatory 9 Postal 10 Copyright & Patent 11 Coin money 12 Citizenship 13 Delegate 14 Impeachment 15 Bankruptcy
3
Q
Necessary and Proper
A
Congress has power to enact laws that are necessary and proper to carry out any enumerated powers
4
Q
Taxing Power
A
Congress can impose taxes to regulate behavior so long as the tax:
- Has a reasonable relationship to revenue
- Congress has the power to regulate the activity
5
Q
Spending Power
A
Congress can spend for any public purpose.
Cannot force states to enact federal programs. However, you can place conditions on the receipt of funds as long as it:
- Serves general welfare
- Is unambiguous
- Relates to legit federal interest
- Is not unduly coercive
6
Q
Commerce Power
A
Congress has power to pass laws re:
- Channels and instrumentalities
- People or things
- Anything with a substantial affect
on/in interstate commerce.
Basically, they can regulate anything economic, or anything non-economic that has an affect on interstate commerce.
- Even if it is wholly intra-state and its aggregate affect is on interstate commerce.
It can be a direct regulation, or indirect by threatening to take away funding under spending power.
7
Q
War Power of Congress
A
- Declare war
- Support navy, army, military
- Mobilize troops and regulate to support war effort during war times
8
Q
Congress’ Power to Delegate
A
Congress can delegate to other branches, unless it is something reserved to Congress by constitution.
- Must delegate w/ intelligible standards
Congress cannot retain power to veto/remove an executive officer
9
Q
List of Executive’s Powers
A
- Veto Power
- Enforcement
- Appointment and Removal
- War and Foreign Affairs
10
Q
Enforcement Power
A
President must enforce congressional laws, even if he disagrees with them.
Youngstown Test
- Acting with consent: likely valid; powers at max
- Acting when congress silent: will be upheld as long as not taking power from other branch
- Acting against express will: likely invalid
11
Q
Appointment Power
A
Executive
President can appoint and remove executive officials. He can appoint principal officers with advice and consent of Senate.
- Senate can only pick inferior officers
12
Q
President’s War Powers
A
- Conduct military operations (during times of war)
2. Respond to attacks or take emergency actions (unless Congress said not to)
13
Q
Foreign Affairs
A
Treaties: agreements b/w two nations - Requires 2/3 Senate approval - SET (effective when signed) - NSET (needs legislation) > Takes precedent over earlier-passed federal statutes
Executive Agreements: b/w heads of state
- Trumps state law, but not federal
- Effective once signed
14
Q
State vs. Federal Government
A
- State cannot tax, regulate, or sue feds
- Federal law preempts state law.
Preemption happens 3 ways:
1. Actual conflict between the laws (states can have more strict laws, as long as you can comply with both).
- State law prevents achievement of federal objective (even if unintentional)
- Congress passed extensive legislation seeking to occupy the field and prevent states from regulating that area.
15
Q
States vs. Other States
What are the possible issues?
A
- Privileges and Immunities (Article 4)
- Dormant Commerce Clause
- Full Faith and Credit Clause
- Interstate Compact Clause
16
Q
Privileges and Immunities
A
Article 4
A state cannot discriminate against out-of-state citizens with respect to fundamental rights, unless there is a substantial justification and no less restrictive means.
This is usually employment (only a right in Article 4)
Does not apply to corporations or aliens
17
Q
Dormant Commerce Clause
A
The U.S. Constitution provides that Congress has the power to regulate interstate commerce.
In the absence of congressional legislation on the subject, a state retains authority under its general police powers (of the 10A) to regulate local aspects of interstate commerce through their powers.
A state law will be struck down if it discriminates against (or unreasonable burdens) interstate commerce.
Facial Discrimination: SS
It will be struck down without further inquiry, unless it is narrowly tailored to a compelling state interest, and there is no reasonable non-discriminatory alternative.
Unreasonable Burden (Facially Neutral): IS It will be valid only if it serves an important state interest and it does not impose an unreasonable burden on interstate commerce. (Balance the effects of the law on interstate commerce vs. state's interest served by law.)
Discriminatory Tax
1. A tax that is facially discriminatory will be struck down
2. A tax that is facially neutral will only be upheld if the benefit of the tax is not outweighed by the burden on interstate commerce. This is a three-step analysis:
A. There is a substantial nexus b/w the taxpayer and the state (look to see if the goods are intentionally stopping in the state, or if it is brief);
B. The tax is fairly apportioned; and
C. There is a fair relationship between the tax and the service provided by the state.
Exceptions to the DCC:
- Congress passed the law
- State is a market participant
- It is a traditional government function (i.e., waste disposal)
18
Q
Full Faith & Credit
A
Courts must honor the judgments of other states’ courts if:
- The deciding court had jurisdiction; and
- They made a final decision on the merits
19
Q
Interstate Compact Clause
A
States cannot agree with other states to increase their political power at the expense of federal supremacy.
20
Q
What rights do not apply to the states?
A
5th: Right to a grand jury
7th: Right to a jury trial in a civil case
21
Q
8th Amendment: Prohibition Against Cruel and Unusual Punishment
A
- No death penalty for crimes before 18
- No life w/o parole for non-homicide crimes committed before 18
- No requiring judges to impose life w/o parole to a minor if you do not allow judge to consider other circumstances
22
Q
Retroactive Legislation: Contracts Clause
A
A state cannot impose legislation that:
- Substantially impairs
- A pre-existing contract
- Unless it is narrowly tailored to serving an important interest
23
Q
Retroactive Legislation: Ex Post Facto Law
A
The government cannot pass legislation that:
- Retroactively changes criminal law;
- In a substantially prejudicial manner;
- For the purpose of punishing someone for past activity
Changing privileges that determine whether someone can testify is not an ex post facto law
24
Q
Retroactive Legislation: Bills of Attainder
A
Government cannot pass legislation that
- Specifically identifies people to punish;
- Imposes punishment; and
- Does so without a trial
25
Procedural Due Process
The Due Process Clause of the 5A (made applicable onto the states by the 14A) provides that the government cannot deprive a person of life, liberty, or property without due process of law.
- Must give notice and opportunity to be heard
Liberty: significant freedom of action (reputation damage is not enough)
Property: Can be personal or real, but also includes public school, welfare, public employment (not at-will).
Notice & Opportunity to be heard:
- Usually, must come before deprivation unless there is a significant reason
- Burden is on the gov't
- Court looks at 3 things to see if it was given:
1. Interests of individual in retaining the threatened interest;
2. Risk of error in the current proceedings, and the probable value of any additional safeguards; and
3. Cost/administrative burden of the additional process
26
Vague Laws
A vague law may violate DPC. An ordinance is void for vagueness if:
1. It does not provide fair notice of the conduct proscribed
2. It gives the trier of fact unlimited discretion to determine if the offense occurred
3. Its coverage is overbroad and violates the 1A
27
Substantive Due Proess
Comes into play for laws that limit everyone's ability to do something.
Strict Scrutiny: government must show the law is narrowly tailored to achieve a compelling interest.
- Fundamental rights
- Right to vote; Right to interstate travel; Right to refuse medical treatment for a competent adult; 1A Rights
Rational Basis: plaintiff must show the law is not rationally related to any legitimate purpose (even hypothetical).
- Applies to everything else
- Economic regulations, right to education, welfare benefits, zoning, etc
- Plaintiff usually loses
28
Substantive Due Process: Sexual Conduct
State cannot make it a crime for adults to engage in consensual, private, commercial sexual conduct
29
Substantive Due Process: Obscenity in the home
Right to possess in the home – not buy/sell/transport it. Does not extend to child porn.
30
Substantive Due Process: Family Relations
1. Parents have a right to raise their kids and maintain their relationships
2. Government cannot prohibit members of an extended family from living together in a single-family residence, but can ban unrelated persons from living together in the home
3. Parents have the right to obtain private education for their kids
31
Substantive Due Process: Abortion
Pre-Viability: A woman has a fundamental right to an abortion pre-viability. The government can regulate abortions, but cannot impose undue burdens on her right to choose before viability.
Post-Viability: once viable, the state has an interest in regulating/prohibiting abortion, but there must be an exception if the mother’s health is in danger.
Ex of Valid Laws:
- 24-hour waiting period before
- Requiring parental consent OR judge’s permission as alternative
- Restricting abortions to doctors
- Refusing to use public funds for abortions
32
Substantive Due Process: Right to Vote
States can enact qualifications for voting (age, residency, etc.)
Requiring property to vote is usually invalid unless it is a special purpose election
Political Gerrymandering: race is not allowed to be used to draw a political district if it is the predominant factor.
33
Substantive Due Process: Right to Interstate Travel
14th Amendment: Privileges OR Immunities
People have the right to travel from state to state and enjoy the same privileges and immunities as other citizens
- A state cannot restrict access to VITAL government services
- Durational requirements will usually be struck down
34
Fundamental Rights
Apply strict scrutiny
- Privacy Rights (MC SOFA: marriage, contraception, sexual conduct, obscenity, family relations, abortion).
- Right to vote
- Right to interstate travel
- 1A Rights
- Right to refuse medical treatment as a competent adult
35
HYPO:
The state imposes a surcharge of $0.05/c on the sale of all cherries in their province. The state then provides a program where it gives a proportional contribution back to the sellers in its own state.
What part of Dormant Commerce is this testing?
This is the strict scrutiny part!!
Even though it does not look facially discriminatory (because everyone is taxed), it is facially only taxing one group of people because the Michigan sellers get their money back.
Therefore, SS applies!!
36
Equal Protection: Introduction
EPC applies to the federal government through the 5A, and the states through the 14A.
It requires the government justify why it is discriminating between different classes (unless it falls within rational basis).
37
Equal Protection: Standards and what they apply to
Strict Scrutiny: government must prove the law is narrowly tailored to a compelling interest.
- Fundamental Rights (MC SOFA)
- Race/Ethnicity
- Alienage
Intermediate Scrutiny: government must prove the law is substantially related to an important interest.
- Gender
- Illegitimacy
Rational Basis: claimant must prove the law is not rationally related to any legitimate state interest (even hypothetical).
- Everything else
38
Equal Protection: Strict Scrutiny
The government must prove the law is narrowly tailored to a compelling interest.
1. Fundamental Rights (+ Right to fair trial).
2. Alienage
If it is discriminating on illegal aliens, or if Congress passed the law, it just needs rational basis.
- If it is from the state and discriminating on alienage, you need strict scrutiny.
- Exception: Political Function: states can exclude non-citizens from certain government jobs (i.e., cops, public school teachers; not notaries or park employees).
3. Race/Ethnic Discrimination
Almost always struck down.
'Compelling Interest'
A. Diversity: you can make race a factor, but it cannot be given too many points. There must still be an individualized review of each applicant.
B. Overcoming Past Discrimination: you can remedy a past discrimination of YOURS (it must have an end date). You cannot do it to remedy a societal discrimination.
39
Equal Protection: Intermediate Scrutiny
The government must prove the classification is substantially related to an important government interest.
Gender: must be significant justification (can't just be hypothetical)
- You can remedy a past discrimination, even if it is just societal.
Illegitimacy: you can require paternity be proven during father's life in order to pay out death benefits (because the important interest is promoting efficient disposition of property).
- However, you cannot deny benefits to illegitimate kids, or require kids prove paternity within a few years, etc.
40
Equal Protection: Rational Basis
The individual must prove the law is not rationally related to any legitimate government interest (including hypothetical).
- Applies to everything else
41
First Amendment: Free Speech
Congress shall make no laws abridging the freedom of speech (applies to states through the 14A).
It applies against government actors who are regulating private speech.
There are three main types of restrictions: content-based, viewpoint, and time, place, manner restrictions.
42
Speech: Levels of Scrutiny
Content-based and viewpoint: SS
Government must show the law is narrowly tailored to a compelling state interest.
Exceptions: symbolic and less/unprotected speech.
Time, place, manner: private vs. public forum
43
Symbolic Speech
Laws that try to regulate conduct, but end up placing an incidental burden on speech.
Question: Is the government prohibiting non-verbal expressive conduct?
Standard: The law must be narrowly tailored to an important interest, and be unrelated to suppression of speech.
Ex: Prohibiting the burning of a flag is not unrelated from the suppression of speech because its purpose is to prevent demonstrations.
Ex: Prohibiting the burning of draft cards is unrelated to the suppression of speech because its purpose is to ensure people will fight in the war.
44
What speech is 'less protected'?
1. Commercial Speech: Central Hudson Test:
A. Speech is lawful and not misleading
B. Law is narrowly tailored to a substantial interest; and
C. The law directly advances that interest.
(Total bans are usually unconstitutional; restrictions on soliciting injured clients w/i 30 days are constitutional).
2. Sexual Speech: Law must:
A. Serve a substantial state interest; and
B. Leave open alternative methods of communication.
Ex: Restricting strip clubs to only 5% of the city.
45
Unprotected Speech
For unprotected speech, the state just needs to pass the rational basis test.
1. Speech directed at inciting lawlessness (if it makes it likely)
2. Speech directed at inciting violent reactions
3. Speech directed at placing someone in fear of bodily harm
4. Obscene speech, which is defined as speech that:
A. Appeals to an unusual interests in sex (local)
B. Depicts/describes sexual conduct in an offensive way (local); and
C. Lacks serious literary, artistic, political, or scientific value (national)
46
Time, Place, Manner Restrictions
Regulations not aimed at prohibiting speech, but regulating it (where, when, how, etc.).
Check if it is a public or private forum
47
Time, Place, Manner: Public Forums
A public forum can be traditional or designated.
Traditional: historically associated with expressive conduct (streets, parks, sidewalks).
Designated: government opens to the public (school open after-hours for public to participate).
Three-step test:
1. Statute is neutral to content and viewpoint;
2. Statute is narrowly tailored to an important government interest
3. Statute leaves open alternative channels of communication
48
Time, Place, Manner: Private Forums
A forum not historically associated with free exchange of ideas (ex: military basis, city busses, government buildings, airports, prisons, etc.)
Test: regulation must be viewpoint neutral and reasonably related to a legitimate government interest.
City Buses: if the city allows everyone to advertise on the bus, it may be public.
Public Schools: students' speech can be regulated as long as it is reasonably related to a legitimate educational interest.
Prison: prisoners' speech can be regulated if it is reasonably related to a legitimate penological interest.
Gov't Employees in Gov't Buildings: Two-parts:
1. Did employee speak as a citizen on a matter of public concern?
2. If so, was the state justified in treating the employee differently than other members of the general public?
49
Free Speech: Overbreadth
A law is overbroad if it prohibits more expression than is necessary (on its face).
50
Free Speech: Vagueness
A law is vague if a reasonable person would not be able to tell what speech was prohibited and what was allowed.
- Burden on Plaintiff
- If court reads it narrowly, it may be upheld
51
Licensing/Permit Statutes
A licensing statute is valid if it is neutral with objective and definite standards.
It is void if it gives the licensing official unlimited discretion (ex: mayor must approve rally if he finds it is in public's interest).
If it is valid: speaker must apply for the permit and be denied to challenge it.
If it is void: speaker does not need to apply in order to challenge its constitutionality.
52
Freedom of Religion: Introduction
Congress shall make no laws re: establishment of religion, or prohibiting the free exercise thereof.
53
Freedom of Religion: Free Establishment
If the law is content-neutral, apply the Lemon Test.
Lemon Test:
1. There is a secular legislative purpose
2. Primary effect is not to advance/inhibit religion
3. It does not result in excessive government entanglement with religion (requires government to closely monitor funds).
- Ex: salaries to teachers of secular subjects only is unconstitutional.
If the law favors one religion: the government must show the law is narrowly tailored to achieve a compelling state interest (SS).
54
Freedom of Religion: Free Exercise
Beliefs are absolutely protected - you cannot be punished for your genuinely held beliefs, nor can they be burdened. However, the freedom to act is not absolutely protected.
The government can regulate acts that are motivated by religious beliefs, as long as it is neutral and of general applicability.
If the state is motivated to prevent, burden, or interfere with religion or the practice of religion: it must be narrowly tailored to a compelling state interest (SS).
55
Second Amendment
MBE: Second Amendment provides for the right of the people to keep and bear arms shall not be infringed.
- Heller Case: SCOTUS conferred an individual right to keep and bear arms unconnected with militia service and to use those arms for purposes such as self-defense.
- Not limited to weapons used in the 18th century, but all bearable arms
- Statutes that entirely ban handguns are violations
- Can't require guns be kept inoperable at all times
MI: The Michigan constitution confers an individual right to keep and bear arms for self-defense. However, the legislature can regulate the carrying and use of firearms.
56
Sobriety Checkpoints
MI: Not allowed
MBE: A reasonable sobriety checkpoint is allowed (think back to Crim)
Bar Prep
flashcards
Decks in class (25)
# Cards
-
Evidence36
-
PP, Equity, DR9
-
Creditors' Rights12
-
Wills35
-
Conflict of Laws4
-
Crim: Constitution Issues34
-
Real Property43
-
Torts44
-
Worker's Compensation16
-
Corporations18
-
Partnerships3
-
Agency11
-
Constitutional56
-
Contracts76
-
Trouble Spots20
-
Criminal Law55
-
No-Fault19
-
Civil Procedure78
-
Civ Pro Dates19
-
Con Tests19
-
Trusts13
-
Secured Transactions9
-
Professional Responsibility5
-
Commercial Paper3
-
Extra Issues17
