Term
| ConLaw Question 01
What is the requirement for cases and controversies? |
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Definition
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ConLaw Answer 001
Standing, Ripeness, no Mootness, Political question doctrine
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Term
| ConLaw Question 02
Sierra club sues Disney for wanting to put up a resort on a mountain. Disney challenges their standing because no club member had actually used the mountain. Standing? |
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Definition
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ConLaw Answer 002
No. Plaintiffs only may assert injuries that they personally have suffered. Amend the complaint to show that members had used the mountain.
Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm to them.
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Term
| ConLaw Question 03
Cops choke a guy. He seeks to get the hold enjoined from future use. What must guy show to have standing? |
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Definition
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ConLaw Answer 003
Likelihood of future injury. Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm to them. Here, the guy was unable to show that he was likely to get a future choke hold.
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Term
| ConLaw Question 04
Because the IRS was hitting hospitals in a certain way, they reduced the amount of free health care. Poor people got rejected for free care, so they sued the IRS to get them to drop the hit. Standing? |
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Definition
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ConLaw Answer 004
No. The plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to redress the injury. Even if a government policy is struck down, there is no proof that the change in policy was the cause of a problem (e.g. a reduction in free heath care) because there is an alternate explanation for the problem.
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Term
| ConLaw Question 05
Guy sues for first amendment rights on behalf of his daughter. The girl's mother had sole custody. Standing? |
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Definition
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ConLaw Answer 005
No. As a rule, a plaintiff cannot assert claims of others, of third parties, who are not before the court because not personally injured. However, a third party standing is allowed if
(1) there is a close relationship between the plaintiff and the injured third party
(2) the injured third party is unlikely to be able to assert his or her own rights, or
(3) an organization may sue for its members.
Here, the Court ruled that the father did not have standing because the father did not have any custody over his daughter.
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Term
| ConLaw Question 06
Lemerson wants to claim that her jury selection was racially biased. The defense argues that she was not subject to discrimination, and she has no standing to sue for the rights of prospective jurors. Ruling? |
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Definition
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ConLaw Answer 006
Lemerson can make her claim. As a rule, a plaintiff cannot assert claims of others, of third parties, who are not before the court because not personally injured. However, a third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights. Criminal defendants have third party standing to raise rights of perspective jurors to be free from race or gender bias during the jury selection process. Prospective jurors experiencing bias are unlikely to sue.
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Term
| ConLaw Question 07
When can an organization sue on behalf of its members? |
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Definition
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ConLaw Answer 007
An organization may sue for its members, if
(1) the members would have standing to sue
(2) the interests are germane to the organization's purpose, and
(3) neither the claim nor relief requires participation of individual members
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Term
| ConLaw Question 08
Oz sues the government for giving Mt. Rushmore to a parochial school. He claims standing as a taxpayer. Adequate standing? |
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Definition
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ConLaw Answer 008
Ordinarily, there is no standing for generalized grievances. The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law. However, taxpayers have standing to challenge government expenditures as violating the Establishment Clause, such as financial aid to parochial schools, but would not have standing if feds give property. That is narrow.
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Term
| ConLaw Question 09
A drug company wanted to enjoin potential FDA action. Dismissed for lack of ripeness? |
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Definition
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ConLaw Answer 009
It was ripe because either they had to comply with the law (expensive) or not comply with the law and risk penalty AND nothing gained by waiting for an actual fine levied by the FDA. Together this made it ripe.
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Term
| ConLaw Question 10
A pregnant Jane Soe sues in federal court because of an abortion regulation. Two months into trial, Soe gives birth. Is the case dismissed as moot? |
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Definition
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ConLaw Answer 010
No. Generally, if events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot. However, wrong capable of repetition to the plaintiff but evading review. Like Roe v. Wade. Here, her abortion claim is not moot because Soe can get pregnant again. Gestation is shorter than litigation.
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Term
| ConLaw Q11
Plackter sues the club beneath her apartment for discriminating against women. Two months into the trial, the club and its owners are permanently thrown out of New York for drug stuff. Is the case dismissed as moot? |
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Definition
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ConLaw Answer 011
Yes. Generally, if events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot. The three exceptions are
(1) wrong capable of repetition,
(2) voluntary cessation, but resumable, and
(3) class action suits.
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Term
| ConLaw Question 12
Employer uses an employment test with a disparate impact by race. Upon suit, the employer stops using the test, promising never to use it again. Case dismissed as moot? |
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Definition
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ConLaw Answer 012
No. Generally, if events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot. However, mootness will not end the cause of action because of voluntary cessation by the defendant, who is free to resume at any time. Examples are employment test with disparate impact by race. Can't just stop giving the exam to avoid litigation.
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Term
| ConLaw Question 13
What is the political question doctrine? |
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Definition
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ConLaw Answer 013
Cases are always dismissed as non-justicable political questions in these four instances:
(1) The "republican form of government clause,"
(2) challenges to the President's conduct of foreign policy
(3) Challenges to the impeachment and removal process
(4) challenges to partisan gerrymandering.
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Term
| ConLaw Question 14
Voters adopt new law via initiative. Suit brought because it is direct, and not representative democracy. |
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Definition
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ConLaw Answer 014
Non-justicable as political question. The "republican form of government clause." Art IV. If this is on the bar, the answer is always "case dismissed."
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Term
| ConLaw Question 15
Carter withdraws treaty. Goldwater challenges that Senate must approve canceling of treaties. What court hears it? |
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Definition
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ConLaw Answer 015
No court. Non-justicable as political question. Challenges to the President's conduct of foreign policy are non-justicable. Such as "the Vietnam War is unconstitutional" or the rescission of a treaty. Neither of these are viable.
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Term
| ConLaw Question 16
A citizen wants to go to court to challenge partisan gerrymandering. Where can he go? |
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Definition
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ConLaw Answer 016
Nowhere. Non-justicable as political question. Not viable, due to ruling in 2004.
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Term
| ConLaw Question 17
How many Supreme Court justices must vote to hear a case for certiorari to be granted? |
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Definition
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ConLaw Answer 017
Four. Virtually all cases come to the Supreme Court by writ of certiorari, which gives the court complete discretion on whether to hear them.
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Term
| ConLaw Question 18
There's a federal law says that particular cases will be heard in a 3-judge federal district court. Who hears appeal? |
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Definition
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ConLaw Answer 018
Goes straight to the U.S. Supreme Court, and they must hear it. Appeals exist for decisions of 3-judge federal district courts. Court must take if statute says "appeals." The appeal skips the Court of Appeals. The voting Rights Act of 1964 has this, but it is the only "appeal" statute.
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Term
| ConLaw Question 19
NY wants to sue NJ in SDNY. NJ objects. Who wins? |
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Definition
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ConLaw Answer 019
NJ. The Supreme Court has original and exclusive jurisdiction (the case is originally filed with the Supreme Court) for suits between state governments. NY v. NJ.
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Term
| ConLaw Question 20
What is the final judgment rule? |
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Definition
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ConLaw Answer 020
Generally, the Supreme Court may hear cases only after there has been a final judgment of the highest state court, of a United States Court of Appeals, or of a 3-judge federal district court. This is the final judgment rule. No interlocutory appeal.
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Term
| ConLaw Q21
The LAPD beats up Abe. Abe sues officers in CA state courts on a federal Civil Rights claim and a state battery claim. Abe wins on both for $100K under either claim but not both. Officers lose appeal. Can the U.S. SCt review the federal clai |
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Definition
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ConLaw Answer 021
No. Even if fed is reversed, still must pay on state grounds. For the Supreme Court to review a state court decision, there must not be an independent and adequate state law ground of decision. "Independent and adequate" means "same damages or equitable relief results." If a state court decision rests on two grounds, one state law and one federal law, if the Supreme Court's reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it. Supreme Court cannot hear cases about state laws not in conflict with federal law.
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Term
| ConLaw Q22
Residents sue a concrete factory on a Federal Clean air claim and a state nuisance claim, seeking injunction. They win in state court under each claim, and again on appeal. Can the Supreme Court grant cert on the Clean Air claim? |
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Definition
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ConLaw Answer 022
No Supreme Court review. Same injunction based on state claim, which the Supreme Court can't hear appeal on strictly state issue.
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Term
| ConLaw Question 23
Can Federal courts or state courts hear suits against state governments? |
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Definition
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ConLaw Answer 023;;Federal courts (and state courts) may not hear suits against state governments. The principle of sovereign immunity. Sovereign immunity bars suits against states in state courts or federal agencies. There are three exceptions:
(1) waiver,
(2) ¤5 of 14th Amendment, or
(3) federal government suing state governments.
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Term
| ConLaw Question 24
Can states be sued in federal courts through laws adopted under ¤5 of the 14th Amendment? |
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Definition
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ConLaw Answer 024
Yes. Generally, federal courts (and state courts) may not hear suits against state governments. However, states may be sued pursuant to federal laws adopted under ¤5 of the 14th Amendment, since later in time than the 11th amendment and designed to limit state power. Congress cannot authorize suits against states under other constitutional provisions.
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Term
| ConLaw Question 25
Can Oz sue New York State because a state regulation caused him to lose his business? |
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Definition
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ConLaw Answer 025
States can't be sued. But you can sue state officer for personal damages, but not the state treasury.
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Term
| ConLaw Question 26
What is abstention? |
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Definition
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ConLaw Answer 026
Abstention (for the bar) means Federal courts may not enjoin pending state court proceedings.
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Term
| ConLaw Question 27
When does congress have a general police power? |
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Definition
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ConLaw Answer 027
MILD:(1) legislating for the Military
(2) Indian reservations
(3) federal Land and territories, and
(4) for the District of Columbia
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Term
| ConLaw Question 28
Can Congress can fund the Army with bake sales? |
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Definition
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ConLaw Answer 028
Yes. The necessary and proper clause. Any means not prohibited by the constitution are allowed if carrying out some authority granted by the constitution to the Congress. Congress can fund the Army with bake sales if it wants because the have authority to raise an army and bake sales are not prohibited.
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Term
| ConLaw Question 29
What are the three manifestations of commerce? |
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Definition
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ConLaw Answer 029
The Commerce Power as of 1995, commerce is all interstate intercourse and has three manifestations:
(1) Congress may regulate the channels of interstate commerce. Highways, the internet.
(2) Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce. Trucks.
(3) Congress may regulate activities that have a substantial effect on interstate commerce. Can limit home grown food production because in the aggregate reduces local demand for that food that moves interstate.
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Term
| ConLaw Question 30
Can congress regulate the growing of marijuana for personal use? |
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Definition
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ConLaw Answer 030
Yes, because it is sold in interstate markets.
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Term
| ConLaw Question 31
Can congress give federal standing to domestic violence victims based on cumulative impact of violence? |
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Definition
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ConLaw Answer 031
No. In the area of non-economic activity, a substantial effect cannot be based on cumulative impact. Gender motivated violence reduces economic activity by putting women in hospitals, but beating women it is not an economic activity so cannot regulate under the commerce clause.
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Term
| ConLaw Question 32
How does the 10th amendment limit congressional powers? |
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Definition
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ConLaw Answer 032
Congress cannot compel state regulatory or legislative action. Congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program. Highway funding and drinking age [the purpose is probably "highway safety" but not clear for the lecture].
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Term
| ConLaw Question 33
Federal law requires local cops to do background checks on guns. |
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Definition
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ConLaw Answer 033
Unconstitutional. Federal government was conscripting local officers in violation of 10th amendment.
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Term
| ConLaw Question 34
Congress passes law that says any state with drinking age lower than 21 gets no federal highway money. Unconstitutional as violation of 10th amendment? |
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Definition
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ConLaw Answer 034
No. Congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program. Highway funding and drinking age [the purpose is probably "highway safety" but not clear for the lecture].
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Term
| ConLaw Question 35
Congress passes law prohibiting state governments from selling DMV lists. Unconstitutional under 10th Amendment? |
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Definition
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ConLaw Answer 035
No. Congress may prohibit harmful commercial activity by state governments. Congress is not imposing a duty;it is prohibiting a commercial transaction.
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Term
| ConLaw Question 36
Congress passed the Religious Freedom Restoration Act, which expanded religious freedoms available in the states under authority of 14th amendment section 5. What was the supreme court's beef? |
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Definition
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ConLaw Answer 036
Congress' power under ¤5 of the 14th Amendment. Congress may not create new rights or expand the scope of rights under ¤5 of the 14th Amendment. Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be "proportionate" and "congruent" to remedying constitutional violations. Religious Freedom Restoration Act pushed back against some court rulings, and court found it unconstitutional.
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Term
| ConLaw Question 37
Can congress delegate legislative powers? |
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Definition
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ConLaw Answer 037
No limit exists on Congress' ability to delegate legislative power to executive agencies or even to the judiciary. The court has never found a law unconstitutional as excessive delegation. Never pick "excessive delegation" as an answer.
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Term
| ConLaw Question 38
What is a legislative veto |
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Definition
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ConLaw Answer 038
Congress attempts to overturn an executive action without bicameralism or presentment. Like overturning an administrative act.
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Term
| ConLaw Question 39
Can the president veto part of a bill? |
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Definition
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ConLaw Answer 039
No. Line item veto is the veto of part of a bill. President can't pick and choose. Bills are written and edited by congress, not the president.
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Term
| ConLaw Question 40
Can congress give itself discretionary power to cut a budget after it is passed? |
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Definition
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ConLaw Answer 040
Congress may not delegate executive power to itself or its officers. Congress cannot have the power to implement a law, such as discretionary budget cutting after the budget is passed.
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Term
| ConLaw Question 41
What is a treaty? |
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Definition
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ConLaw Answer 041
Treaties are agreements between the United States and a foreign country that are negotiated by the President and are effective when ratified by the Senate.
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Term
| ConLaw Question 42
If a treaty conflicts with a federal statute, who wins? |
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Definition
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ConLaw Answer 042
If a treaty conflicts with a federal statute, the one adopted last in time controls. (this is often on the test because the law is so settled)
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Term
| ConLaw Question 43;;Alaska allows the hunting of bald eagles, in violation of a treaty with Canada. Which wins? |
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Definition
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ConLaw Answer 043
The treaty. Treaties prevail over conflicting state laws.
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Term
| ConLaw Question 44
What is an executive agreement? |
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Definition
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ConLaw Answer 044
An executive agreement is an agreement between the United States and a foreign country that is effective when signed by the President and the head of the foreign nation. No senate approval required.
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Term
| ConLaw Question 45
The senate ratifies a treaty preventing U.S. citizens from trading in Nazi memorabilia. This violates the Constitution. Who wins? |
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Definition
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ConLaw Answer 045
The Constitution. If a treaty conflicts with the United States Constitution, it is invalid.
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Term
| ConLaw Question 46
Which wins: executive agreements or state laws? |
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Definition
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ConLaw Answer 046
Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.
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Term
| ConLaw Question 47
President Bhatt deploys the U.S. Navy to Hungary to teach the populace the choreography to N'Sync's final tour. Outraged, congress challenges him. Who wins? |
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Definition
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ConLaw Answer 047
President Bhatt (and Hungary). The President has broad powers as Commander-in-Chief to use American troops in foreign countries. Use of US troops has never been found unconstitutional. No matter how outrageous, on the bar exam do not say the use of troops overseas is unconstitutional. The correct answer is "case dismissed as a political question" or "dismissed since the president has broad authority."
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Term
| ConLaw Question 48
Can the president install ambassadors willy-nilly? |
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Definition
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ConLaw Answer 048
The President appoints ambassadors, federal judges and officers of the United States. Must be approved by congress to take effect.
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Term
| ConLaw Question 49
The Attorney General is an officer. US Attorneys can be fired by the Attorney General, so they are inferior. Why do you care? |
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Definition
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ConLaw Answer 049
The President appoints ambassadors, federal judges and officers of the United States. Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts.
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Term
| ConLaw Question 50
Congress passes statute with new federal agency, splitting the appointment powers between president, congress, and judiciary. Constitutional? |
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Definition
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ConLaw Answer 050
No. Congress may not give itself or its officers the appointment power. Congress cannot pick any agency heads, or executive branch personnel itself.
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Term
| ConLaw Question 51
Can president fire independent presidential investigator at will if Congress says it can't? |
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Definition
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ConLaw Answer 051
No. The president has removal power, meaning that unless removal is limited by statute, the President may fire any executive branch office. For Congress to limit removal, it must be an office where independence from the President is desirable, Congress cannot prohibit removal, it can only limit removal to cases where there is good cause. Otherwise the president can fire at will. Here, because Congress can demand good cause, and independence from the president is desirable, the president cannot fire at will.
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Term
| ConLaw Question 52
How does impeachment work? |
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Definition
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ConLaw Answer 052
The President, the Vice-President, federal judges and officers of the United States can be impeached and removed from the office for treason, bribery or for high crimes and misdemeanors. Impeachment by the House of Representatives requires a majority vote;conviction in the Senate requires a 2/3 vote
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Term
| ConLaw Question 53
A month into her term, President Katz was sued by Abe for a million bucks for sexually harassing him at her preinaugural breakfast. President Katz claims absolute immunity to civil suits for money damages. How's that go? |
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Definition
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ConLaw Answer 053
Not well. The President has absolute immunity to civil suits for money damages for any actions while in office, not actions before he took office. Because the pre-inaugural breakfast was before she was in office, there is no absolute civil immunity.
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Term
| ConLaw Question 54
Can the president sit on presidential papers in the face of a request for them as evidence in a criminal trial? |
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Definition
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ConLaw Answer 054
No. The President has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interests. Evidence in a criminal trial is such a case.
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Term
| ConLaw Question 55
SDNY Judge Williams throws Lemerson in jail for federal drug trafficking crimes. President Katz extends a pardon. Does Lemerson get out of jail? |
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Definition
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ConLaw Answer 055
Yes. The President has the power to pardon those accused or convicted of federal (not state) crimes (not civil liability, such as civil contempt of court). Can't pardon people who are impeached.
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Term
| ConLaw Question 56
SDNY Judge Williams throws Lemerson in jail for civil contempt of court. President Katz extends a pardon. Does Lemerson get out of jail? |
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Definition
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ConLaw Answer 056
No. The President has the power to pardon those accused or convicted of federal (not state) crimes (not civil liability, such as civil contempt of court). Can't pardon people who are impeached. Because this is civil liability, the president cannot pardon her.
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Term
| ConLaw Question 57
What is express preemption? |
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Definition
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ConLaw Answer 057
Express preemption. Fed statute expressly says it wholly occupies the field.
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Term
| ConLaw Question 58
What is implied preemption? |
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Definition
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ConLaw Answer 058
Implied preemption. If law is silent look for these 3 possibilities:
(1) If federal and state law are mutually exclusive, federal law preempts state law
(2) If state law impedes the achievement of a federal objective, federal law preempts state law, or
(3) If Congress evidences a clear intent to preempt state law, federal law preempts state law.
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Term
| ConLaw Question 59
A federal law says that drugs must have certain label and state law says it cannot. What happens? |
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Definition
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ConLaw Answer 059
The state law is stuck down. If federal and state law are mutually exclusive, federal law preempts state law. Example, fed law is that drugs must have certain label and state law says it cannot;state law is stuck down. However state laws can be stricter unless congress clearly prohibits it, see this in environmental matters.
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Term
| ConLaw Q60
Federal law provides for age discrimination procedures. State law mandates that employees using those procedures have certain state benefits terminated. Constitutional? |
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Definition
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ConLaw Answer 060
No. If state law impedes the achievement of a federal objective, federal law preempts state law. Example is a state law that conditions some benefit on NOT using federal procedures or seeking relief from the federal government. That will be struck down.
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Term
| ConLaw Question 61
A new Texas state law regulates immigration more strictly than the federal law. Constitutional? |
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Definition
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ConLaw Answer 061
No. If Congress evidences a clear intent to preempt state law, federal law preempts state law. Immigration law is a good example. States cannot regulate immigration because Congress clearly intends to occupy the field, though has not expressly pre-empted state action.
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Term
| ConLaw Question 62
Federal law mandates factory mercury emissions no higher than 9ppm. California state law mandates factory mercury emissions no higher than 6ppm. Constitutional? |
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Definition
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ConLaw Answer 062
Yes. If federal and state law are mutually exclusive, federal law preempts state law. For example, where a federal law says that drugs must have certain label and state law says it cannot;state law is stuck down. However state laws can be stricter unless congress clearly prohibits it, see this in environmental matters.
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Term
| ConLaw Question 63
Congress passes the law that says only FDA can set labeling requirements for meat. State wants to add a sticker to meat about irradiation. |
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Definition
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ConLaw Answer 063
Express preemption. Fed statute expressly says it wholly occupies the field.
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Term
| ConLaw Question 64
NLRB wants people to file grievances. FL state law reduces benefits to people who file NLRB claim. |
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Definition
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ConLaw Answer 064
If state law impedes the achievement of a federal objective, federal law preempts state law. Example is a state law that conditions some benefit on NOT using federal procedures or seeking relief from the federal government. That will be struck down.
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Term
| ConLaw Question 65
State passes law to tax a federal bank. Constitutional? |
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Definition
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ConLaw Answer 065
No. States may not tax or regulate (so as to place a significant burden on) federal government activity.
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Term
| ConLaw Question 66
Can you pay a state tax out of the federal treasury? |
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Definition
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ConLaw Answer 066
No. It is unconstitutional to pay a state tax out of the federal treasury.
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Term
| ConLaw Question 67
Can a state make a military base's department store pay state sales tax? |
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Definition
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ConLaw Answer 067
No. State can tax private companies operating on federal land but cannot tax stores on government land owned by the federal government.
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Term
| ConLaw Question 68
A new California state law mandates that all factories must not expel copper dust, much more strict than the federal requirement. Must the San Francisco mint comply? |
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Definition
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ConLaw Answer 068
No. Federal government never has to comply with state pollution control levels.
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Term
| ConLaw Question 69
What are Inter-governmental Immunities? |
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Definition
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ConLaw Answer 069
The immunities that the federal government has for unwanted state taxation.
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Term
| ConLaw Question 70
What is the dormant commerce clause? |
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Definition
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ConLaw Answer 070
The dormant commerce clause (exam might call this "the negative implications of the commerce clause). State and local law are unconstitutional if they place an undue burden on interstate commerce.
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Term
| ConLaw Question 71
What is the privileges and immunities clause of Article IV |
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Definition
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ConLaw Answer 071
The privileges and immunities clause of Article IV. Anti-discrimination provision - no state may deny citizens of other states the rights and privileges it provides its own citizens (residents).
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Term
| ConLaw Question 72
What is the privileges or immunities clause of the 14th Amendment. |
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Definition
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ConLaw Answer 072
The privileges or immunities clause of the 14th Amendment. Was intended to protect citizens against actions of their own state governments, but was held to means the something else. Substantive due process is how the court gets around its earlier decision here. This is always a wrong answer on the bar exam unless the question is about the right to travel (change residence/relocate within the US). California had a state law limiting welfare benefits for new residents, Struck down under PI of 14th Amendment.
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Term
| ConLaw Question 73
State law discriminates in housing. Unconstitutional because of the privileges and immunities of the 14th Amendment? |
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Definition
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ConLaw Answer 073
No. Privileges and immunities is always a wrong answer unless it applies to the right to travel.
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Term
| ConLaw Question 74
California had a state law limiting welfare benefits for new residents. How struck down? |
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Definition
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ConLaw Answer 074
Struck down under PI of 14th Amendment as violating the right to travel. PI of 14th am is always a wrong answer unless it applies to the right to travel. Not 4th Am because it wasn't discriminating against out-of-staters.
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Term
| ConLaw Question 75
NJ law says no trash disposal from out of state sources. Why unconstitutional? |
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Definition
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ConLaw Answer 075
Violates the dormant commerce clause. [Unconstitutional under the privileges and immunities clause of Article IV.]
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Term
| ConLaw Question 76
Hawaii law said all trucks driving in-state must have curved mud-flaps. Can it survive a constitutional challenge? |
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Definition
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ConLaw Answer 076
Yes. If a law does not facially discriminate against out-of-staters, the privileges and immunities clause of Article IV does not apply. But, if the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits, even if it does not discriminate. Law does not discriminate on its face - it applies to all trucks no matter where they are from. In any other state, the burden is not worth the benefit; every truck will have to switch to the approved design, which no other state requires. Either refit every truck or not operate some trucks in that state. Also, it is not clear that curved flaps are better than strait ones. However, trucks don't drive between Hawaii and other states, so the law is probably not that much of a burden on interstate commerce.
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Term
| ConLaw Question 77
Michigan law said all trucks driving in-state must have curved mud-flaps. Can it survive a constitutional challenge? |
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Definition
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ConLaw Answer 077
No. If a law does not facially discriminate against out-of-staters, the privileges and immunities clause of Article IV does not apply. But, if the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits, even if it does not discriminate. Law does not discriminate on its face - it applies to all trucks no matter where they are from. However the burden is not worth the benefit; every truck will have to switch to the approved design, which no other state requires. Either refit every truck or not operate some trucks in that state. Since not clear curved flats are better than strait ones, the law is not worth that burden.
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Term
| ConLaw Question 78
What happens to state laws that discriminate against out of staters? |
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Definition
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ConLaw Answer 078
Generally, if the law discriminates against out-of-staters, If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose.
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Term
| ConLaw Question 79
Wyoming enacted a ban on bait fish imports to protect local wildlife from out of state parasites and such. Constitutional? |
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Definition
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ConLaw Answer 079
Yes. Generally, if the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose. However, here there was an important government purpose, and this ban was the most reasonable way to protect it.
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Term
| ConLaw Question 80
Florida mandates that college tuition at state schools is less for residents than out of state students. Constitutional? |
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Definition
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ConLaw Answer 080
Yes. Generally, the privileges and immunities clause of Article IV has an Anti-discrimination provision - no state may deny citizens of other states the rights and privileges it provides its own citizens (residents). However, there is a market participant exception. A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses.
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Term
| ConLaw Question 81
A government run cement company charges less for residents than out of state buyers. Constitutional? |
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Definition
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ConLaw Answer 081
Yes. Generally, the privileges and immunities clause of Article IV has an Anti-discrimination provision - no state may deny citizens of other states the rights and privileges it provides its own citizens (residents). However, there is a market participant exception. A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses. Note that the benefit goes to those who likely paid tax to the state.
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Term
| ConLaw Question 82
NY passes a law mandating that private colleges must charge less for in-state students and more to out of state students. Constitutional? |
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Definition
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ConLaw Answer 082
No. A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses. But not private businesses, which would violate the dormant commerce clause.
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Term
| ConLaw Question 83
How is the Article IV privileges and immunities clause applied? |
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Definition
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ConLaw Answer 083
If the law discriminates against out-of-staters with regard to their ability to earn their livelihood or their civil liberties, it violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose.
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Term
| ConLaw Question 84
A state law setting a shrimp fishing license at $25 for in state applicants, $2500 for out of state. Constitutional? |
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Definition
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ConLaw Answer 084
No. Where a state law discriminates against out-of-staters' ability to earn a living, it violates the privileges and immunities clause of Article IV of the Constitution unless it is necessary to achieve an important government purpose.
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Term
| ConLaw Question 85
New Hampshire passes a law that says to be admitted to the New Hampshire bar, you must be resident. The law is challenged by Vermont woman. Who wins? |
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Definition
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ConLaw Answer 085
VT woman wins. Where a state law discriminates against out-of-staters' ability to earn a living, it violates the privileges and immunities clause of Article IV of the Constitution unless it is necessary to achieve an important government purpose.
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Term
| ConLaw Question 86
Montana state law mandates an elk hunting license, charging a small fee for in-state applicants, and a high fee for out-of-state applicants. Unconstitutional under Article IV privileges and immunities? |
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Definition
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ConLaw Answer 086
No. Where a state law discriminates against out-of-staters' ability to earn a living, it violates the privileges and immunities clause of Article IV of the Constitution unless it is necessary to achieve an important government purpose. Elk hunting is a hobby, has nothing to do with earning livelihood. Article IV privileges and immunities does not apply.
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Term
| ConLaw Question 87
New Jersey passes allow forbidding out of state trash to be put in its landfills. Can the Philadelphia Hauling Corporation challenge the law for violating its privileges and immunities? |
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Definition
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ConLaw Answer 087
No. Challenger is corporation, so it can only use dormant commerce clause, not privileges and immunities, which is only for natural citizens.
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Term
| ConLaw Question 88
Iowa passes a law providing for tax credits for consumers buying in-state ethanol. It is challenged on privileges and immunities grounds. Result? |
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Definition
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ConLaw Answer 088
Unconstitutional. States may not use their tax systems to help in-state businesses.
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Term
| ConLaw Question 89
HussainCo is a California company doing no business in New York. New York sends it a tax bill. Constitutional? |
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Definition
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ConLaw Answer 089
No. A state may only tax activities if there is a substantial nexus to the state.
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Term
| ConLaw Question 90
Interstate trucking company working equally in all states. NY wants to tax it 1% based on its total revenue. Can the company raise a constitutional challenge? |
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Definition
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ConLaw Answer 090
Yes. State taxation of interstate businesses must be fairly apportioned. Can apportion by revenue/receipts or amount of activity occurring in state.
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Term
| ConLaw Question 91
What is the Full Faith and Credit rule? |
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Definition
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ConLaw Answer 091
FULL FAITH AND CREDIT. Courts in one state must give full faith and credit to judgments of courts in another state, so long as:
(1) The court that rendered the judgment had jurisdiction over the parties and the subject matter
(2) The judgment was on the merits, and
(3) the judgment is final.
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Term
| ConLaw Question 92
Professor Bhatt is fired from his job at Duke University for criticizing the university president. Can he find constitutional relief? |
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Definition
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ConLaw Answer 092
No, based on the state action doctrine. Private conduct need not comply with the Constitution. Thus the first amendment does not apply to private schools but does to public schools.
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Term
| ConLaw Question 93
Congress enacts a law prohibiting a particular form of private race discrimination. Challengeable under the state action doctrine? |
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Definition
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ConLaw Answer 093
No. Generally, private conduct need not comply directly with the Constitution. However, Congress, by statute, may apply constitutional norms to private conduct, because they can regulate private behavior if they have a basis for exercise.
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Term
| ConLaw Question 94
Congress passes a law that forbids private race discrimination in housing. Will the 13th amendment provide the strongest grounds for constitutionality? |
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Definition
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ConLaw Answer 094
No. The 13th amendment is the wrong answer. But Congress can pass laws under the 13th.
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Term
| ConLaw Q95
VAWA was challenged as outside the reach of Congress' powers. It provided the victims of gender-based crimes the ability to bring suit in federal courts. Congress said it was trying to advance equality for women under ¤5 of the 14th Amendmen |
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Definition
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ConLaw Answer 095
Congress cannot use ¤5 of the 14th Amendment to regulate private behavior.
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Term
| ConLaw Question 96
What is the public function exception? |
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Definition
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ConLaw Answer 096
The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government.
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Term
| ConLaw Question 97
Company town. private town (set up by a company). It cannot ban the Jehovah's Witnesses. |
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Definition
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ConLaw Answer 097
Running a town is performing a task traditionally, exclusively done by the government. The public function exception. The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government.
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Term
| ConLaw Question 98
In a small town, party nominations are turned over to a private organization. When they hold the primary, they refuse to let blacks vote. Can a black resident sue? |
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Definition
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ConLaw Answer 098
Yes. Generally, the constitution provides no relief for private acts. However, if a private company is performing a task traditionally, exclusively done by the government, constitutional concepts like due process will apply. Holding an election for public office is performing a task traditionally, exclusively done by the government.
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Term
| ConLaw Question 99
Safia hasn't been paying her utility bills. The private utility company that provides her electricity goes to cut her service. Safia sues that they can't cut her service without giving her due process. Is she crazy? |
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Definition
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ConLaw Answer 099
She's not crazy, but she still loses. Generally, the constitution provides no relief for private acts. There is an exception to this rule if a private company is performing a task traditionally, exclusively done by the government, constitutional concepts like due process will apply. However, running a utility is not performing a task traditionally, exclusively done by the government. There have long been private utilities. No need for due process, so Safia's challenge loses.
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Term
| ConLaw Question 100
What is the entanglement exception? |
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Definition
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ConLaw Answer 100
The entanglement exception. The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
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Term
| ConLaw Question 101
Where does the entanglement exception apply? |
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Definition
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ConLaw Answer 101
(1) court can't enforce a racially restrictive covenant.
(2) it is state action to lease premises to a restaurant that discriminates
(3) it is state action to provide free books to a private school that discriminates.
(4) it is not state action if a private school is 99% state funded and the school fires a teacher based on the content of her speech. The state did not encourage the firing and the subsidy is an insufficient basis for concluding it is state action.
(5) it is not state action if NCAA orders suspension of state university coach. NCAA is private though many members are public universities.
(6) is state action if private entity regulates intra-state sports. Interstate and intrastate are treated differently. Obviously, this is inconsistent.
(7) If a private club has a liquor license it is not state action if the club discriminates.
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Term
| ConLaw Question 102
Can a court enforce a racially restrictive covenant? |
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Definition
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Term
| ConLaw Question 103
Is it state action to lease premises to a restaurant that discriminates? |
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Definition
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Term
| ConLaw Question 104
A private school is 99% state funded and the school fires a teacher based on the content of her speech. State action? |
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Definition
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ConLaw Answer 104
No. The state did not encourage the firing and the subsidy is an insufficient basis for concluding it is state action.
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Term
| ConLaw Question 105
Is it state action if NCAA orders suspension of state university coach? |
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Definition
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ConLaw Answer 105
No. NCAA is private though many members are public universities.
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Term
| ConLaw Question 106
Is it a state action if private entity regulates intra-state sports? |
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Definition
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ConLaw Answer 106
Yes. Interstate and intrastate are treated differently. Obviously, this is inconsistent.
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Term
| ConLaw Question 107
A discriminatory private club has a liquor license. State action? |
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Definition
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Term
| ConLaw Question 108
The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the 14th Amendment. Exceptions? |
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Definition
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ConLaw Answer 108
(1) The 2nd Amendment right to bear arms,
(2) The 3rd Amendment right to not have soldiers quartered in a person's home,
(3) The 5th Amendment right to grand jury indictment in criminal cases,
(4) The 7th Amendment right to jury trial in civil cases,
(5) The 8th Amendment right against excessive fines. The rest of it - prohibition against excessive bail and the prohibition against cruel and unusual punishment - does.
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Term
| ConLaw Question 109
What are the three levels of scrutiny? |
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Definition
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ConLaw Answer 109
(1) Rational Basis: a law is upheld if it is rationally related to a legitimate government purpose. The challenger has the burden of proof.
(2)Intermediate scrutiny: a law is upheld if it is substantially related to an important government purpose. Only will look to the government actual purpose. The government has the burden of proof.
(3) Strict scrutiny: a law is upheld if it is necessary to achieve a compelling government purpose. Only will look to the government actual purpose. Least restrictive alternative analysis is used. Government usually loses, and government has the burden of proof.
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Term
| ConLaw Question 110
What is rational basis review? |
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Definition
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ConLaw Answer 110
Rational Basis: a law is upheld if it is rationally related to a legitimate government purpose. The challenger has the burden of proof.
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Term
| ConLaw Question 111
What is intermediate scrutiny? |
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Definition
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ConLaw Answer 111
Intermediate scrutiny: a law is upheld if it is substantially related to an important government purpose. Only will look to the government actual purpose. The government has the burden of proof.
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Term
| ConLaw Question 112
What is strict scrutiny? |
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Definition
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ConLaw Answer 112
Strict scrutiny: a law is upheld if it is necessary to achieve a compelling government purpose. Only will look to the government actual purpose. Least restrictive alternative analysis is used. Government usually loses, and government has the burden of proof.
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Term
| ConLaw Question 113
When has there been a deprivation liberty? |
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Definition
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ConLaw Answer 114
A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute. On the bar questions are usually about constitutional rights. But for statutes remember:
(1) except for in an emergency, before an adult can be civilly committed there must be a notice and hearing,
(2) when a parent institutionalizes a child, only requirement is for a screening by a neutral fact finder.
(3) harm to reputation by itself is not a loss of liberty. Need a tangible (i.e. monetary) injury.
(4) prisoners rarely have liberty interests.
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Term
| ConLaw Question 114
Is losing your job a deprivation of property? |
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Definition
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ConLaw Answer 114
Yes. A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled. Entitlements means "a reasonable expectation to continue receipt of a benefit." Thus if hired for a set period (aka term employment) you have a reasonable expectation of employment for that period.
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Term
| ConLaw Question 115
A prisoner slips and falls on a pillow that was left on a staircase. Government liability for denial of due process? |
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Definition
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ConLaw Answer 115
No. Government negligence is not sufficient for a deprivation of due process. Leaving a pillow on a staircase in not enough, even if someone is injured. Generally, there must be intentional government action or at least reckless action for liability to exist.
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Term
| ConLaw Question 116
A high speed chase by the police kills a teenage bystander. The teenager's mom wants to sue the government. Can she? |
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Definition
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ConLaw Answer 116
No. The government has NO liability. In an emergency case, there is only liability if the officer's behavior shocks the conscience, with intent to kill the victim. This accident isn't "shocking."
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Term
| ConLaw Question 117
If Child Protective Services fails to respond to allegations of abuse and the child dies, are they liable for denial of due process? |
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Definition
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ConLaw Answer 117
Generally, the government's failure to protect people from privately inflicted harms does not deny due process. If Child Protective Services fails to respond to allegations of abuse and the child dies, they are not liable. No duty to protect against the private harm inflicted by the parents.
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Term
| ConLaw Question 118
If there is a deprivation of rights, What procedures are required? |
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Definition
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ConLaw Answer 118
The test (which will be on the exam): Balance
(1) The importance of the interest to the individual.
(2) The ability of additional procedures to increase the accuracy of the fact-finding. Increasing accuracy means "reducing occurrences of erroneous deprivations"
(3) The government interest in administrative efficiency, usually measured in $.
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Term
| ConLaw Question 119
Ruth's welfare benefits were cut off, and she was given a hearing a week later. Due process violation? |
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Definition
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ConLaw Answer 119
Yes. Before welfare benefits can be terminated there must be notice and a hearing.
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Term
| ConLaw Question 120
Ruth's social security benefits were cut off, and she was given a hearing a week later. Due process violation? |
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Definition
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ConLaw Answer 120
Yes. When Social Security disability benefits are terminated, a post-termination hearing is enough.
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Term
| ConLaw Question 121
Brit's teenage son Lambert was suspended from school, and Brit was given notice of the charges. Due process violation? |
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Definition
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ConLaw Answer 121
Yes. When a kid is disciplined by a public school (suspended), there must be notice of charges and an opportunity to explain.
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Term
| ConLaw Question 122
Because he's a huge drunk, Brit permanently lost custody of his young son Henson. He was given advance notice, and a hearing is scheduled for next week. Due process violation? |
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Definition
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ConLaw Answer 122
Yes. Before parental custody is permanently terminated, notice and a hearing is required.
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Term
| ConLaw Question 123
The judge offers no instructions as to punitive damage awards. Due process violation? |
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Definition
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ConLaw Answer 123
Yes. Punitive damage awards require instructions to the jury, and have judicial review, to ensure reasonableness.
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Term
| ConLaw Question 124
Mercenary sharpshooter Safia is caught in Malawi and held as an enemy combatant. She is held without charges, and denied a lawyer. Due process violation? |
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Definition
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ConLaw Answer 124
Yes. American citizen apprehended in anther country and held as an enemy combatant must be given due process (notice of charges, representation by an attorney and meaningful factual hearing).
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Term
| ConLaw Question 125
Ruth is in trouble for tax evasion. The government knocks on her door with a surprise warrant to seize her pink laptop (a prized possession and family heirloom). Due process violation? |
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Definition
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ConLaw Answer 125
Yes, because there was no hearing. Except in exigent circumstances, government seizure of assets or pre-judgment attachment must be proceeded by notice and a hearing. Exigent circumstances means defendant would dispose of property if given notice of the seizure. In that case, can attach first and then have notice and a hearing.
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Term
| ConLaw Question 126
Brit and Safia buy a car. Brit uses it as a getaway car for a bank heist. The car gets impounded during trial. Can Safia get the car back as an innocent co-owner? |
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Definition
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ConLaw Answer 126
No. Due process does not require an "innocent owner" defense to government seizure. Safia cannot get it back by arguing they are innocent.
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Term
| ConLaw Question 127
What is substantive due process? |
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Definition
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ConLaw Answer 127
Substantive Due Process asks if the government has adequate reason (substantive basis) for taking life, liberty or property. Economic liberty and privacy are the two major applications.
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Term
| ConLaw Question 128
What standard of review is used for laws effecting economic rights when challenged under substantive due process? |
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Definition
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ConLaw Answer 128
Only a rational basis test is used for laws affecting economic rights. Government wins every time. Examples are minimum wage laws and regulation of a profession.
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Term
| ConLaw Question 129
What must the government do to take private property for public use? |
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Definition
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ConLaw Answer 129
The takings clause of the 5th amendment. The government may take private property for public use if it provides just compensation. This has its own test: (1) Is there a taking (physical or regulatory), (2) is it for public use? (3) is just compensation paid?
It is not considered a taking if the property is still economically productive.
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Term
| ConLaw Question 130
State requires developer to provide sidewalks as condition for a building permit. Taking? |
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Definition
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ConLaw Answer 130
No, this is ok. Government conditions on development of property must be justified by a benefit to the government that is roughly proportionate to the burden imposed on the plaintiff; otherwise it is a taking.
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Term
| ConLaw Question 131
What is a possessory taking? |
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Definition
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ConLaw Answer 131
Possessory taking - Government confiscation or physical occupation of property is a taking. No matter how small there must be compensation. Of course compensation will be small also.
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Term
| ConLaw Question 132
What is a regulatory taking? |
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Definition
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ConLaw Answer 132
Regulatory taking - Government regulation is a taking if it leaves no reasonable economically viable use of the property. Reduction in value is not the standard. Example, government zoning prevents ANY development on you real property. This is a taking. But not allowing owners to build on existing structures is not a taking if the property is still economically productive.
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Term
| ConLaw Question 133
How is just compensation measured? |
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Definition
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ConLaw Answer 133
Just compensation is measured by the loss to the owner in market terms, not the gain of the taker. Thus is fair market value is $100,000 and government takes it, later getting $10 million in benefit, the compensation due is $100,000
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Term
| ConLaw Question 134
What qualifies for public use such that a taking can be effected? |
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Definition
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ConLaw Answer 134
Just about anything will qualify as public use. The standard is "government acted out of reasonable belief that the taking would benefit the public." Under this standard, can even take property and turn it over to a private business as long as compensation is paid.
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Term
| ConLaw Question 135
A state imposes a 3-year moratorium on building in a county because rapid suburban development is disturbing the water table. Taking? |
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Definition
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ConLaw Answer 135
No. The regulation is reasonable and temporary, so not a taking. Temporarily denying an owner use of property is not a taking so long as the government's action is reasonable.
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Term
| ConLaw Question 136
If you buy the property knowing of the restriction does it limit your ability to bring a takings claim? |
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Definition
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ConLaw Answer 136
No. A property owner may bring a takings challenge to regulations that existed at the time the property was acquired. If you buy the property knowing of the restriction it does not limit your ability to bring a claim.
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Term
| ConLaw Question 137
State requires developer to provide sidewalks as condition for a building permit. Is this a regulatory taking? |
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Definition
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ConLaw Answer 137
No. Government conditions on development of property must be justified by a benefit to the government that is roughly proportionate to the burden imposed on the plaintiff;otherwise it is a taking. Example, state requires developer to provide sidewalks as condition for a building permit. This is ok.
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Term
| ConLaw Question 138
What is the contracts clause? |
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Definition
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ConLaw Answer 138
No state shall impair the obligations of contracts. Applies only to state or local interference with existing contracts. Does not apply to the federal government. Feds would have to be challenged on due process grounds for interfering with existing contracts. Also, states can regulate future contracts (i.e. change the law of contracts)
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Term
| ConLaw Question 139
What is the standard of review for state interference with private contracts? |
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Definition
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ConLaw Answer 139
Intermediate scrutiny: Does the legislation substantially impair a party's rights under an existing contract? If so, is the law a reasonably and narrowly tail | |
