Constitutional Law

Justiciability

100

Requirements for a case to be justiciable (i.e. can be heard by the federal courts)

1. Standing; 
2. Ripeness; 
3. Mootness; and 
4. Not a political question 

200

Elements required for standing

1. Injury-in-fact: P must show a concrete and particularized injury, actual or imminent, caused by alleged action; 
2. Causation: D's conduct must have caused the claimant's injury; 
3. Redressibility: Harm must be one the Court can remedy through their resolution of the case;

300

Organizational Standing

1. At least one member of the organization would have standing to sue;
2. Interest asserted is germaine to purpose of the organization; and 
3. Neither claim nor relief requires individual participation of members

400

What are the exceptions to mootness?

1. Capable of repetition yet evading review: although P's particular injury will likely become moot before litigation is complete, it is highly likely injury will be repeated in the future (ex. Roe v. Wade and abortions);
    
2. Voluntary cessation: D voluntarily ceases behavior once litigation starts, but could resume at any time; or
    
3. Class action: As long as one member of class has a ripe claim, resolution of one P's injury will not defeat mootness

500

What are exceptions to the 11th Amendment?

Lawsuits against states are allowed if: 

1. State has consented; 
2. Suit is for prospective relief (injunctive) against a state officer;
3. United States or another State is the plaintiff; 
4. Suit involves enforcement of laws under the violations of 13th, 14th, and 15th Amendments and Congress has expressly removed immunity 

Federalism

100

What is the Supremacy Clause?

Holds that if a federal law directly or indirectly conflicts with a state law, federal law will prevail (and state law declared void). Federal laws can either expressly or impliedly preempt state law.

200

When does a state regulation violate the Dormant Commerce Clause?

If regulation: 

1. Discriminates against out-of-state commerce; 
2. Unduly burdens interstate commerce; or 
3. Regulates wholly out-of-state activity 

300

Under the Dormant Commerce Clause, when are regulations that facially discriminate against out-of-state actors valid?

If: 

1. Regulation is necessary to achieve important government interest and no reasonable, non-discriminatory alternatives are available (strict scrutiny);
2. State is a market participant (i.e. acts like a business or consumer); or 
3. Regulation involves traditional government function (e.g. trash collection), or 
4. Congress has expressly authorized regulation (e.g. Congress explicitly states that regulation violates Dormant Commerce, but will allow it anyways) 

⭐ Acronym to remember: SMTE ("Smart Means Take Effect")

400

What is the Privileges and Immunities Clause under Article IV? 

(also called the "Comity Clause")

Mandates that states cannot discriminate against the fundamental rights or essential activities of out-of-state residents 

⚠️ Note: Privileges and Immunities does not apply to corporations. If you see discrimination against an out-of-state corporation, think Dormant Commerce Clause

500

When is discrimination against out-of-state residents valid under Privileges and Immunities (Comity Clause)?

If: 

1. There is a substantial justification for the discrimination (e.g. protectionism or residents are the "peculiar source of evil" law was intended to fix:); and
2. No less-discriminatory alternatives are available 

Due Process and Equal Protection

100

What are the requirements for strict, intermediate scrutiny, and rational basis?

Strict scrutiny: Government must demonstrate the classification is necessary to achieve a compelling governmental interest and is narrowly tailored to achieve that interest. 

Intermediate scrutiny: Government must demonstrate the classification is substantially related to an important governmental interest.

Rational basis: Law will be upheld if rationally related to a legitimate government purpose.

⭐️ Presumption of validity, any legitimate reason will be upheld as long as it isn't completely arbitrary

200

What does procedural due process require (generally)?

If government is depriving an individual of life, liberty, or property, individual must be given: 

1. Notice; 
2. Opportunity to be heard (i.e. hearing); and 
3. Decision by a neutral arbitrator

300

What is Substantive Due Process?

It limits the government's ability to regulate substantive interests in life, liberty, or property (such as the regulation of personal autonomy [unless...?] and privacy).

Strict scrutiny applies to fundamental rights and rational basis applies to nonfundamental rights. 

The list of fundamental rights include:

1. Right to travel (nationally); 
2. Right to vote; and
3. Right to privacy
   • Marriage 
   • Sexual relations
   • Abortion 
   • Child-rearing/parenting
   • Family members to live together 
   • Contraception 

400

How do you determine whether regulation of a fundamental right violates substantive due process or equal protection?

1. If right is infringed for all people: substantive due process
2. If right is only infringed for certain classes of people:  violates equal protection

500

What are 4 steps to analyzing equal protection questions?

1. Is there a classification by the government? 
   • P must prove classification was made with discriminatory intent
2. What is the classification?
   • Suspect, quasi, or other
3. What level of scrutiny applies?
   • Suspect = strict
   • Quasi = intermediate
   • Other = rational basis
4. Does the government action satisfy the level of scrutiny?

The suspect classes are:

1. Race;
2. Alienage (state laws);
3. Religion; and
4. National origin

Non-Speech Fundamental Rights

100

Define the Free Exercise Clause;

Define the Establishment Clause 

Prohibits the government from outlawing or preventing the exercise of religious beliefs; 

Prohibits the government from endorsing or supporting a particular religion

200

What is the 3-part test to determine whether a law violates the Establishment Clause?

Lemon test:

1. Action must have a secular (non-religious) purpose; 
2. Primary effect must neither advance nor inhibit religion; and
3. Action does not excessively entangle the government with religion

⚠️ Action will only be upheld if it meets all 3 elements of the Lemon test and only regulates practice of religion; not belief (gov. can never regulate beliefs) 

300

When can someone be fired or prevented from gaining public employment or denied admission to the bar for association with a group?

1. D is active member of subversive organization; 
2. D knows about the group's illegal activities; and
3. D has specific intent to further illegal activities

400

Do the public and press have a right to attend trials?

Criminal trials: Yes, but can be overruled upon showing of narrowly tailored overriding interest 

Civil trials: Unclear 

500

What is the Takings Clause

Prohibits government seizure of property without just compensation (Fifth Amendment). Also called "eminent domain."

Two types: possessory and regulatory. 

Speech

100

What 5 types of speech can be regulated on the basis of content? (i.e. unprotected speech)

1. Obscenity; 
2. Incitement;
3. Fighting words;
4. Defamation; and
5. Commercial speech

⭐️ Can be regulated as long as statute is narrow, but does not need to meet strict scrutiny.

200

What are two ways to void regulations that restrict unprotected speech?

1) Overbroad: Regulation that restricts substantially more speech than is constitutionally allowed (i.e. restricts unprotected and protected speech).

2) Vague: Restriction is void for vagueness if reasonable person does not understand what the law requires or prohibits. 

300

3 requirements needed for a valid time, place, or manner restriction in a public forum:

Restriction is: 

1. Content-neutral;

2. Leaves open ample, alternative channels of communication; and 

3. Narrowly tailored to serve significant government interest (not compelling gov. interest)

400

When is a restriction on speech in a non-public forum (public property that is not open to speech (e.g. schools, jails, airports) valid?

1. Viewpoint neutral (*does not need to be content-neutral); and 
2. Reasonably related to a legitimate government purpose 

Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only anti-Second Amendment speech would not be allowed.

500

What is the four-part test to determine whether regulation of commercial speech is constitutional?

1. Speech is not false, misleading, or illegal; 
2. Regulation serves substantial government interest; 
3. Regulation directly advances interest; and
4. Regulation is not more extensive than necessary to serve that interest