Constitutional law

Question 1

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

Answer 1

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

Question 2

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

Answer 2

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

Question 3

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

Answer 3

1. suits for injunctive relief

2. suits against state officials in their individual capacity

Question 4

What is the political question doctrine?

Answer 4

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)

Question 5

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

Answer 5

campaign expenses cannot be limited

Campaign contributions can
-exception: corporate expenditures may be limited

Question 6

What 2 types of suits against federal officers are allowed?

Answer 6

1. suits for injunctive relief

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

Question 7

What are the 3 exceptions to the sovereign immunity doctrine?

Answer 7

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)

Question 8

What are the 3 levels of scrutiny used by USSC?

Answer 8

1. rational basis
2. intermediate
3. strict

Question 9

What is rational basis scrutiny?

Answer 9

rationally related to legit government interest

Question 10

What is intermediate scrutiny?

Answer 10

substantially related to important government purpose

Question 11

What is strict scrutiny?

Answer 11

necessary to achieve a compelling government purpose

Question 12

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

Answer 12

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

Question 13

Under what 2 conditions may government “take” property?

Answer 13

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

Question 14

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

Answer 14

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

Question 15

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

Answer 15

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

Question 16

What are ex post facto laws?

Answer 16

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

Question 17

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

Answer 17

strict

Question 18

What 5 areas may congress regulate under commerce clause?

Answer 18

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

Question 19

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

Answer 19

it will be held invalid

Question 20

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

Answer 20

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

Question 21

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

Answer 21

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

Question 22

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

Answer 22

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

Question 23

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

Answer 23

1. if the regulation furthers an important state interest

2. and no reasonable non-discriminatory alternatives exist

Question 24

What are the 3 exceptions to the mootness ban?

Answer 24

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)

Question 25

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

Answer 25

intermediate

Question 26

What makes a claim ripe?

Answer 26

There is an imminent threat of harm

Question 27

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

Answer 27

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.

Question 28

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

Answer 28

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

Question 29

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

Answer 29

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

Question 30

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

Answer 30

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

Question 31

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

Answer 31

must give D a chance to present mitigating facts and circumstances

Question 32

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

Answer 32

Strict

Question 33

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

Answer 33

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)

Question 34

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

Answer 34

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)

Question 35

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

Answer 35

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

Question 36

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

Answer 36

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)

Question 37

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

Answer 37

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

Question 38

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

Answer 38

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

Question 39

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

Answer 39

1. gender | 2. legitimacy

Question 40

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

Answer 40

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

Question 41

Under EP, what fundamental rights require strict scrutiny analysis?

Answer 41

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