Shared Flashcard Set


Con Law
Bar Study

Additional Law Flashcards





1. Plaintiff must allege and prove that he or she has been injured or imminently will be injured.

a. Plaintiffs seeking declaratory relief must show likelihood of future harm (i.e. Chokehold case).

2. Plaintiff must allege and prove that the defendant caused the injury so that a favorable court  decision is likely to remedy the injury.

a. No advisory opinions allowed.

3.A plaintiff cannot assert claims of others unless:

a. If there is a close relationship between plaintiff and 3rd party (doctor-patient)

b. If 3rd party is unlikely to be able to assert his or her own rights.

c. Organization may sue for its members if the members have standing to sue, the interests are germane to the organization's purpose, and and neither claim nor relief requires member participation.

4. Tax payer cannot sue based on a general grievance unless challenging expenditures as violating the establishment clause.

The political question doctrine

1. Republican form of government clause

2. Challenges to President's conduct of foreign policy

3. Challenges of impeachment and removal process

4. Challenges to partisan gerrymandering

Supreme Court Review of state decision

There must not be an independent and adequate state law ground of decision. If a state court decision rests on two ground, one state law and one federal law, if the SC reversal of the federal law ground will not change the result of the case, SC cannot hear it.

The Commerce Clause

1. Congress may regulate the channels of interstate commerce.

2. Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce

3. Congress may regulate economic activities that have a substantial effect on interstate commerce. (In area of non economic activity, a substantial effect cannot be based on cumulative impact).

a. Court will uphold the regulation if it involves economic or commercial activity as long as there is a conceivable basis for concluding that the activity substantially affects interstate commerce.

b. if noneconomic in nature, Congress must make a factual finding that the activity regulated has a substantial economic effect.

The appointment power

1. President appoints ambassadors, federal judges and officers

2. Congress can vest appointment of inferior officers in the President, the heads of departments or lower federal courts, but cannot give itself or its officers the appointment power.

3. President  may fire any executive branch office, and congress can only limit removal for good cause if it is an office where independence from president is desirable.


President, vice president, and federal judges can be impeached and removed for treason, bribery, or for high crimes and misdemeanors. Impeachment by the House requires majority, and conviction in the Senate requires 2/3 vote.

The Dormant Commerce Clause and the privileges and Immunities Clause.

1. Privileges and Immunities of IV: IF law discriminates against out of staters with regard to their ability to earn a livelihood, it violates unless it is necessary to achieve an important government purpose.

a. Corps and aliens cannot use P and I clause.

*look for non-residents who are challenging law that discriminates against their right to earn a living

2. " " of the 14th amendment: Only applies to the right to travel.

*Look for residents who are challenging law that discriminates against different residents of the same state.

3. Dormant Commerce Clause: If undue burden on interstate commerce, it violates dormant commerce clause unless it is necessary to achieve an important government interest, unless:

a. Congress approvs

b. Market participant

State taxation of Interstate Commerce

1. States may not use their tax systems to help in state business

2. State may only tax activities if there is a substantial nexus to the state

3. State taxation of interstate business must be fairly apportioned.

Can Congress apply constitutional norms to private conduct?

1. 2nd section of 13th amendment can be used to prohibit private race discrimination.


2. The Commerce power can be used to apply constitutional norms to private conduct


3. Congress Cannot use section 5 of the 14th amendment to regulate private bhavior.

Situations where private conduct must comply with Constitution

1. Public function: Company-owned town

2. Entanglement:  when gov. is authorizing, encouraging, facilitating unconstitutional activity:

a. Courts cannot enforce racially restrictive covenants.

b. When the government leases premises to a restaurant that racially descriminates.

1. However, a land grant is apparently not enough.

c. When state provides books to schools that racially descriminates.

d. Subsidy is not enough

e. No State action based on NCAA actions

f. when private entity regulates interscholastic sports within a state.

g. No state action when a private club with a liquor license from the state discriminates. 

Denial of Due Process 

1. Procedural due process guarentees that life, liberty, or property will not be taken without adequate procedures. Substantive Due process requires that the government's deprivation of life, liberty, or property be justified by a sufficient purpose


2. A deprivation of liberty occurs if there is a loss of significant freedom provided by the constitution or a statute.

a. Damage to reputation alone is not enough

b. Prisoners rarely have liberty interests

c. Notice and  hearing required before adult can be admitted, unless emergency

d. Screening by a neutral fact finder for admitting a child.

2. A Deprivation of property occurs if there is entitlement and that entitlement is not fulfilled.

3. The test that is required for procedural due process  is a balance between the importance of the individual's interest, the ability of of additional procedures to increase the accuracy of fact-finding, and the government's interest.

4 THe test for substantive due process is whether there needs to be a compelling interest (fundamental right) or something else (rational basis: right to practice trade or profession, right to education).



*Pulbic official who can only be denied for good cause is entitled to notice and an opportunity to respond to the charges prior to dismissal and a subsequent hearing

*Welfare benefit termination requires notice and a hearing.

*SS disability benefit termination requires post hearing.

* Student discipline requires notice of charges and opp. to explain.

* Parental custody termination = N + H

*Punitive damages = instructions to jury and judicial review.

* US citizen held as enemy combatant = due process.

* Judge cannot participate if party donated lots of $ to Judge's campaign.


The Takings Clause

1. Only a rational basis tested is used for laws affecting economic rights. 

2. The government may take private property for public use if it provides just compensation.

a. Confiscating, physical occupation, or leaving no reasonable economically viable use of property is a taking.

b. Government conditions on developement of property must be justified a benefit that is roughly proportionate to the burden imposed.

c. Property owner can bring takings challenge to regulations that existed at the time property was acquired.

The Contracts Clause

1. STATE interference with existing private contracts must meet intermediate scrutiny (must be reasonably and narrowly tailored means of promoting an important and legitimate public interest)


2. State interference with government contracts must meet strict scrutiny.


3. Ex Post Facto does not apply in civil cases. Retroactive civil liability only need meet a rational basis test. 

Privacy as a  fundamental right protected under substantive due process

1. Right to marry

2. Right to procreate

3. Right to custody

4. Right to keep family together

5. right to control upbringing of one's children

6. Purchase contraceptives

7. abortion

a. Prior to viability, cannot prohibit abortions but can regulate abortions so long as they do not create an undue burden on ability to obtain.

1. 24 hour waiting period is ok

2. that they be preformed by licensed physicians is ok

3.Prohibiting partial birth abortions is ok.

b. After viability, state may prohibit abortion unless necessary to protect woman's life or health.

c. Government has no duty to subsidize abortions or provide in public hospitals.

d. Spousal consent and notification laws are unconstitutional unless unmarried minor, then either parent consent or approval from a judge.

8. Private consensual homosexual activity.

9. Refuse medical treatment.

a. State may require clear and convincing evidence that person wanted treatment terminated before it is ended.

The Right to Vote

1. Laws that deny some citizens the right to vote must meet strict scrutiny.

a. Photo ID is ok.

2. One person one vote must be met for all state elections

3. At large elections are constitutional unless proof of discriminatory purpose.

4. The use of race in drawing election lines must meet strict scrutiny.

5. Counting uncounted votes without standards in a presidential election violates equal protection.

Right to Education

No fundamental right. However, in AZ, disparities in school funding violate the state constitution.

Levels of Scrutiny

Strict: The statute is necessary to achieve a compelling government interest and is the least restrictive alternative to achieving that interest.

a. Race is a valid interest as one factor to consider in increasing diversity in colleges.

b. Benefitting minorities is a valid interest if there is evidence of past discrimination in the area.


Intermediate: The statute is substantially related to an important government interest.


Rational basis: The statute is rationally related to a legitimate, conceivable government interest.

Alienage Classifications

Generally, strict scrutiny is used.

a. Only a rational basis test is used for alienage classification that concern self-government and the democratic process.

1. The right to vote, to be on a jury, police officer, teacher, probation officer.

b. Rational basis is used for Congressional discrimination against aliens

c. Intermediate scrutiny for discrimination against undocumented children.


Incitement of Illegal activity

 The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.

Obscenity and sexually oriented speech

The Miller Test

1. The material must appeal to the prurient interest (a local standard)

2. The material must be patently offinsive under the law prohibiting obscenity.

3.Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (National)

a. can use zoning ordinances to regulate adult business.

b. Government may seize the assets of business convicted of violating obscenity laws.

Commercial Speech

Advertising for illegal activity and deceptive advertising are not protected by the 1st amendment.


Commercial speech that inherently risks deception can be prohibited.

a. may prevent professionals from advertising under a trade name.

b. can prohibit in person solicitation for legal representation.

Other commercial speech can be regulated if intermediate scrutiny is met.

a. must be narrowly tailored but does not need to be the least restrictive alternative.




Public official: must prove falsity by clear and convincing evidence and actual malice

Public figure: same

private figure involving something of public concern: Falsity and Negligence, but actual malice for punitive damages

Private figure involving something private: Negligence

Speech Forums

Public Forums: Strict scrutiny must be met for content-based restrictions, but only intermediate scrutiny must be met for regulations that involve time, manner, and place. Regulations do not need use the lease restrictive alternative.


Limited public forums: same rules apply


Non-Public: Can regulate speech so long as the regulation is reasonable and viewpoint neutral.

a. Military bases

b. outside of jails

c. advertising space on city busses

d. Sidewalks on post office property

e. Airports.

Freedom of Association

Laws that prohibit or punish group membership, including disclosure requirements that would chill association, must meet strict scrutiny. To punish membership in a group, it must be proven that:

1. the person is actively affiliated with the group

2. knowing of its illegal activities

3. with the specific intent of furthering those illegal activities.

The Establishment Clause

The Lemon Test

1. There must be a secular purpose (i.e. putting 10 commandments on county building)

2. The effect must be neither to advance nor inhibit religion (symbolic endorsements)

3. There must not be excessive entanglement with religion (salaries in religious schools)

a. Government cannot discriminate against religious speech or among religions unless strict scrutiny is met (no prayer in school).

b. Government sponsored activity in public schools is unconstitutional, but religious groups must have same access to school facilities as non-religious groups.

c. Government can give assistance to parochial schools, so long as it is not used for religious instruction. Can provide parents with vouchers whcih they use in parochial schools.



Congress Powers and basis for them (Commerce, Taxing and Spending, Necessary and Proper)

Spending and taxing: Congress has the power to spend "to provide for the common defense and general welfare." Can spend for any public purpose as long as it does not infringe on other consitutional provisions.


Commerce Power: Has less to do with spending money and more to do with directly regulating an activity.


Necessary and Proper: is not by itself a basis of power, but merely gives congress power to execute specifically granted powers.


Legislation in response to a treaty does not need the president's signature and can be passed over a president's veto

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