Shared Flashcard Set

Details

Con Law Concepts
Professor Stein's 1L con law class!
96
Law
10/03/2011
Click here to study/print these flashcards.

Create your own flash cards! Sign up here.

Additional Law Flashcards

 

 

Cards

Term
What are the two hats that the Supreme Court wear?
 Definition
Two - they interpret the constitution and they interpret statutes.
Term
How can Congress fix the Supreme Court's bad decisions?
 Definition
By amending the law.
Term
What effective check is there on the Supreme Court?
 Definition
None.
Term
What is Art. I, Sec. 8, clause 1?
 Definition
Taxing and spending power. Power to lay and collect taxes, pay debts, provide for common defense. TAXING AND SPENDING POWER.
Term
What is Art. I Sec. 8 clauses 3?
 Definition
Congress. Enumerated powers. Power to regulate foreign and domestic commerce. COMMERCE CLAUSE.
Term
What is Art. I, Sec. 8, clause 9?
 Definition
Congress. Enumerated powers. Constitute tribunals inferior to the supreme court.
Term
What is Art. I, Sec. 8, clause 18?
 Definition
Congress. Enumerated powers. Make all laws which are necessary and proper for carrying out the enumerated powers.
Term
What is Art. II, Sec. 1, clause 8?
 Definition
The President promises to protect, preserve, and defend the constitution.
Term
Art. II, Sec. 2, clause 2.
 Definition
222 - 2/3. Approval of officers and judges and judges which needs Senate approval.
Term
Art. II, Sec. 2, clause 2?
 Definition
2 2 2. Repeat yourself and make appoint! Appoint judges and officers with advice and consent of senate.
Term
Art. II, Sec. 3.
 Definition
Take care to commission officers during the state of the union address.
Term
Where does it say that President can make treaties and appoint government officials.
 Definition
Art. II, Sec. 2, clause 2.
Term
How many senators must approve treaties?
 Definition
Two thirds.
Term
How many senators must approve high officials?
 Definition
A simple majority of the senators present.
Term
How many senators are there?
 Definition
100
Term
How many representatives are there?
 Definition
435.
Term
Art. III, Sec. 1?
 Definition
Supreme Court. Judicial power of U.S. is vested in one Supreme Court and such other inferior courts that congress may from time to time establish
Term
Art. III, Sec. 1 (tenure and compensation of judges?)
 Definition
Life tenure during good behavior and no reduction in salary.
Term
Art. III, Sec. 2, clause 1?
 Definition
Judicial power extends to all cases arising under the Const. the laws of the US and treaties. All controversies to which the US is a party, between different states and their citizens, foreign states or their citizens.
Term
Art. III, Sec. 2, clause 2?
 Definition
Jurisdiction of SCOTUS and the exemptions clause. Ambassadors, public ministers, consuls, cases to which a state is a party. In all other cases, SCOTUS has appellate juris., subject to such exceptions as Congress shall make.
Term
Art. IV, Sec. 1.
 Definition
"Four states". Full faith and credit among the states regarding public acts, records, and judicial proceedings.
Term
Art. IV, Sec. 2, clause 1.
 Definition
Four states. Equal privileges and immunities among the citizens of all states. Corporations are not citizens.
Term
Art. V?
 Definition
"Five - Fist" Needed to amend the constitution: two thirds of both houses and 3/4 of the states needed to pass a constitutional amendment.
Term
Art. VI
 Definition
"Six is supreme!" Supremacy clause. This constitution is the supreme law of the land, and the judges of every state shall be bound thereby.
Term
10th Amend?
 Definition
Powers reserved to the states. Any powers not delegated to fed., and not prohibited by const., are given to the states.
Term
13th Amend?
 Definition
Allows a COA by blacks with regards to breach of contract actions just like white people.
Term
14th Amend. Sect. 1?
 Definition
Cannot violate the privileges and immunities of US citizens, the due process of any person, or the equal protection of any person.
Term
14th Amend., Sec. 5?
 Definition
Enabling clause for the 14th Amendment.
Term
27th Amendment?
 Definition
Guidelines for competency proceeding against president.
Term
What case established the "ever expanding constitution" model?
 Definition
McCulloch v. Maryland, necessary and proper clause.
Term
Where's the necessary and proper clause?
 Definition
Art. I, Sec. 8, Clause 18. (The last one!)
Term
Where is the Commerce Clause?
 Definition
Art. 1, Sec. 8, clause 3. (3 is "free" trade)
Term
1, 3, 9, 18
 Definition
Taxes are #1, commerce 3 is free, 9 is inferior (courts), 18 is necessary and proper.
Term
Art. 2: Section 1, 2, 3
 Definition
One salute: constitution is #1
Two salute: appointing somebody makes us two
Three salute: three things pres. must do: state of union address, take care that laws are faithfully executed, and appoint fed. officials
Term
ART III: 1 and 2
 Definition
ONE supreme court, ONE salary, ONE job appointment TWO has TWO: cases and controversies, and exceptions
Term
What's the exceptions clause?
 Definition
Art. III, Section 2, clause 2.
Term
US v. Klein?
 Definition
Congress can't try to tell SCOTUS how to decide cases.
Term
Three parts of standing?
 Definition
Concrete, legally cognizable injury, fairly traceable to the acts of the defendant, and redressability.
Term
Art. IV, Sections 1 and 2.
 Definition
Four states, two equal halves. Equal respect for documents and proceedings, equal respect for people.
Term
What were the two fundamental concepts developed in Marbury v. Madison?
 Definition
(1) Constitution is fundamental law, superior to and binding upon all fed and state governments, and (2)it is SCOTUS that has the job of deciding what it says and how it is applied.
Term
What is the "domestic relations exception"?
 Definition
It is the refusal of the federal courts to adjudicate domestic relations cases - these cases "belong to the laws of the States and not to the laws of the United States."
Term
What is the "taxpayer standing doctrine"?
 Definition
The idea that any person who pays taxes should have standing to file a lawsuit against the taxing body if that body allocates funds in a way that the taxpayer feels is improper. SCOTUS has held that taxpayer standing is not a sufficient basis for standing against the US govt, unless funds are spent in a way that violates the Establishment Clause. The Court has consistently found that the conduct of the federal government is too far removed from individual taxpayer returns for any injury to the taxpayer to be traced to the use of tax revenues.
Term
What is a "nonjusticiable" political question?
 Definition
A problem that cannot be resolved in federal court, such as directing an executive to perform a discretionary political act, (Marbury) or directing a state to better implement a republican form of government (Guaranty Clause, Baker).
Term
Where are state citizens guaranteed a republican form of government?
 Definition
Art. 4 ("for the states!") sec. 4.
Term
What is the Guaranty Clause?
 Definition
It is Art. IV, Sec. 4, stating that the states are guaranteed a republican form of government - but this Guaranty comes from Congress, not the courts.
Term
What is ripeness?
 Definition
Bringing a case when a cause of action has accrued, not before.
Term
What is mootness?
 Definition
Bringing a case too late - when the harm has already been redressed.
Term
What is federalism?
 Definition
The distribution of governmental power between state governments and the federal government.
Term
Where is the Commerce Clause?
 Definition
Art. I, Sec. 8, cl. 3.
Term
What's the Supremacy Clause?
 Definition
Art. VI.
Term
What three things is Congress allowed to regulate under the Commerce Clause, according to Gibbons v. Ogden?
 Definition
Channels, instrumentalities and things.
(Arteries, transportation, goods).
Term
What are channels, instrumentalities, things, and activities which have a substantial effect on interstate commerce?
 Definition
Things which the fed. govt. is allowed to regulate under the Commerce Clause.
Term
What did Perez v. U.S. have to say about interstate commerce?
 Definition
If an activity is of an interstate nature, a specific instance of non-interstate forbidden activity does not remove the matter from federal jurisdiction.
Term
What's the Guaranty Clause?
 Definition
Art. IV, Section 4.
Term
What is a non-justiciable question?
 Definition
Political question, advisory opinion, unripe, moot questions, no actual controversy.
Term
What is plenary power?
 Definition
Without limitation in the enumerated power.
Term
Holding of Brown I?
 Definition
Plessy v. Ferguson is overruled and 14th Amendment prohibits "separate but equal" in provision of public facilities.
Term
What was the remedy offered by the court in Brown I?
 Definition
Send the attorneys back home to draft their opinions and come back for Brown II to discuss the ways to implement the Court's ruling.
Term
Brown II, "all deliberate speed" is an equitable order. Was it effective?
 Definition
No. It's like telling a kid to clean up his room "with all deliberate speed."
Term
Can D.C. statutes be attacked by 14th amendment claims?
 Definition
No, because D.C. is not a state. You have to attack with 5th Amendment.
Term
How does busing violate "taxation without representation"?
 Definition
You get your kids sent to another school district - over which you have no voting power.
Term
What is an "overinclusive" statute?
 Definition
It is a statute that disadvantages a larger class of people than is needed to achieve the state's purpose.
Term
What is an "underinclusive" statute?
 Definition
It is a statute that does not include enough of a category of people to help achieve the state interest.
Term
What is "de jure" segregation?
 Definition
It is a current condition of segregation resulting from intentional state action.
Term
Process v. results model of equal protection jurisprudence.
 Definition
Process: just halt the bad practice.
Results: don't just halt the bad practice, but see that it doesn't happen again.
Term
3 ways President can issue an Executive Order?
 Definition
(1) pursuant to Congressional permission, (2) as a symbolic gesture
(3) making law according to his Art. II powers.
Term
What does the court look for in "strict scrutiny" cases?
 Definition
(1) Compelling gov't interest
(2) Most narrowly tailored/ least intrusive means
Term
Why is race classification such a ready beneficiary of strict scrutiny?
 Definition
(1) 14th amendment was designed to remedy racial discrimination, (2) racial oppression has been an unpleasant historical fact, both in the United States and abroad
Term
What are the hallmarks of the "strict scrutiny" suspect class?
 Definition
A group that has been (1) historically discriminated against, (2) has an immutable and highly visible trait, (3) powerless to protect itself via the political process, and (4) the group’s distinguishing characteristic does not prevent it from contributing meaningfully to society.
Term
What is needed to establish a "disparate impact" case?
 Definition
"Invidious discrimination"
Term
What is "benign discrimination" aka affirmative action?
 Definition
It is what a defendant labels discrimination when it is benefiting him or her.
Term
Essence of Gratz ruling?
 Definition
You can't assign weights to racial characteristics in order to encourage increased minority attendance.
Term
Essence of Grutter holding?
 Definition
In order to increase minority enrollment in your school, you can have race as a criteria, but not the only criteria.
Term
Displacement?
 Definition
It's OK to spend money to obtain more minorities via advertising, outreach efforts, etc. What's NOT OK is setting aside seats for minority students.
Term
Croson is good example of what?
 Definition
Displacement-type affirmative action. Set-asides. Beneficiaries were private parties, competing for contracts for municipal work. 10% seemed to the the magic number for "set asides."
Term
Gender classifications?
 Definition
Quasi-suspect class subject to intermediate level review.
Term
(Gender) Intermediate scrutiny.
 Definition
(1) Important governmental purpose, (2) by means substantially related, (3) shown by exceedingly persuasive evidence (as to need for gender classification).
Term
Legitimate governmental purpose, important governmental purpose,
compelling governmental purpose. What are they?
 Definition
Prong #2 of the different standards of scrutiny.
Term
Rational basis, substantially related, necessary. What are they?
 Definition
Prong #1 of the three levels of scrutiny.
Term
The two Big S's of gender discrimination?
 Definition
Stereotyping (putting them all together) and stigmatizing (suffering the effects of stereotyping).
Term
So... what is the standard of review for gender-based statutes?
 Definition
Intermediate review! Statute will be held invalid if sex-based criteria is not substantially related to an important governmental objective.
Term
What is "benign" use of gender classifications?
 Definition
It is an attempt to remedy specific past discrimination but NOT a view that women invariably need to be protected, because that view just reinforces the stereotypes.
Term
By what standard do we evaluate benign racial classifications?
 Definition
By strict scrutiny! Necessary to achieve compelling state interest, narrowly tailored, least restrictive means available for achieving that interest.
Term
And what kind of state interests are so compelling that SCOTUS will permit racially-conscious statutes to stand?
 Definition
(1) remedy specific past practice of discrimination, and (2) increasing diversity in higher education.
Term
What did Grutter v. Bollinger have to say about using race in considering law school applicants?
 Definition
Law schools may consider race as part of the admissions process as long as it is only one factor in an individualized process. Race may NOT be the predominant factor in admissions, but achieving a "critical mass" of diverse students is a compelling interest and a tailored use. Policy must be short-term, and race must be one factor to be considered in application process.
Term
What did Gratz v. Bollinger have to say about assigning decisive points to race in university applications process?
 Definition
No good. Using an automatic point system is not "tailored" enough. Each student should be reviewed individually. Race may be considered, but may not be the decisive factor for admission.
Term
What did Parents v. Seattle have to say about using race as a "tie breaker" in assigning students to public high schools in Seattle?
 Definition
No good. Again, mechanical approaches to race distribution are not "narrowly tailored." Roberts: "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Term
What are the "fundamental rights" that will trigger strict scrutiny in substantive due process cases?
 Definition
equal protection, freedom of thought,
freedom of speech, freedom of association, freedom of movement within the country, freedom to vote in general election, freedom to procreate irrespective of marital status or other classification, freedom to direct a child’s upbringing, freedom to marry a person of any race, right to privacy,
property, freedom of contract by parties with proportional bargaining power, right to keep and bear arms
Term
What are the "privacy rights" that are considered fundamental?
 Definition
The person’s right to make decisions about highly personal matters,
derive indirectly from several Bill of Rights guarantees, collectively create penumbra or zone of privacy:
marriage, child-bearing, child-rearing
Term
Is the right to use birth control a fundamental right?
 Definition
Yes! Griswold v. Connecticut. A person’s interest in using birth control is fundamental and state can’t impair that interest without satisfying strict scrutiny
Term
Is the right to an abortion fundamental?
 Definition
Nope. A woman has a constitutionally-protected privacy interest in choosing to have abortion before viability. State may not ban pre-viability abortions, but reasonable regulation of pre and post viability abortions is permissible. State may not place "undue burden" (substantial obstacle)in the path of a woman seeking a pre-viability abortion.
Term
What did William v. Rhodes have to say about states imposing obstacles to new political parties in the election process?
 Definition
Didn't like it. Limiting access to the ballot box will face strict scrutiny. State does not have a compelling interest in perpetuating a 2-party political monopoly.
Term
What did Dandridge v. Williams say about fixed welfare benefits that favor smaller families because they allow greater "per child" benefits than those received in large families?
 Definition
It's not a violation of equal protection. State policy subject to rational basis, not strict scrutiny.
Term
What statute speaks to discrimination in employment?
 Definition
Title VII of the Civil Rights Act of 1964.
Term
What statute speaks to discrimination in sports and other programs in public schools?
 Definition
Title IX of the Civil Rights Act of 1964.
Term
Bolling v. Sharpe?
 Definition
Magical discovery by SCOTUS that the 5th Amendment contains an "equal protection component" that prohibits unequal treatment by the federal government.