CHAPTER 1 Cornerstone of Judicial Review: The U. S.

Constitution is law and the federal judiciary is the institution with the final responsibility to interpret that law. 1. The significance of Marbury v. Madison If the Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the Supreme Court has the authority and duty to declare the statute unconstitutional & refuse to enforce it. 2. How judicial review was established a. Constitution is law Supremacy Clause b. Judicial branch under Constitution has authority to interpret law c. Judicial branch given right of checks & balances d. Text of constitution supports conclusion of judicial review. The extent of judicial review a. U. S. Supreme Court review of state law & state government may review actions if there is a federal question b. State courts review of federal & state law must enforce federal law over state law. State court is final arbitrator of state law unless it conflicts with federal law and then has to bow to U. S. Supreme Court but NOT to lower courts interpretation of the Constitution. How do Article I Courts and Article III Courts differ? a. Article I 1. Administrative courts 2. Judges are political appointees b. Article III 1. Federal Court system 2. Appointed for life & good behavior Limitations on Judicial Review a. Constitution Limitations limits the original jurisdiction of the Supreme Court b. Congressional Limitations limits appellate jurisdiction of Supreme Court & jurisdiction of other federal courts by Judicial Acts; however must leave a judicial forum open to resolve controversy. c. Judicial Limitations 1. Case must be actual controversy must be justiciable. 2. Case must not be merely a political question. The federal court system

3.

4.

5.

6.

CHAPTER 2 DOCTRINE OF IMPLIED POWERS Classic test for the existence of federal legislative power: Let the ends be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional . . . McCulloch v. Maryland (Chief Justice Marshall) 1. 2. The concept of federalism two different layers of government, federal & state, which coexist. The sources and nature of national legislative power a. Origin of national legislative power limited, enumerated powers as set out in the Constitution. b. Types of powers 1. Express 2. Implied

c. 3.

3. Inherent Absence of general police power exception is Washington DC where Congress acts as a state government.

Significance of McCulloch v. Maryland Congress can act in manner which is rationally related to an enumerated power even if not specifically set forth in the Constitution, as an implied power under the necessary and proper clause of Article I of the Constitution. KNOW QUOTE ABOVE as test for constitutionality of federal congressional power. Three distinct aspects of federal power established in McCulloch a. Expressed Article I, Section 8 b. Implied/Implicit Necessary & Proper Clause, Article I, Section 18 c. Inherent when acting as sovereign foreign affairs & eminent domain

4.

CHAPTER 3 STATE POWERS IN LIGHT OF THE COMMERCE CLAUSE 1. 2. The history of the commerce clause Meaning of dormant or negative commerce clause The mere existence of the federal commerce power restricts the states from discriminating or unduly burdening interstate commerce. The restriction is often called the dormant commerce clause. Significance of Gibbons v. Ogden Congress has exclusive power to regulate commerce. Supreme Court definition of internal commerce and interstate commerce (including Doctrine of Selective Exclusiveness) Three considerations when state regulations of transportation are challenged a. Has Congress regulated before? If so, federal law preempts the states in that area. b. Is this a matter of purely local concern or is there a matter that needs a national uniformity Cooley Doctrine of Selective Exclusiveness c. Does states regulation have a rational basis that are not discriminatory or unduly burdensome states have right under their police power to promote safety of citizens. d. Do the benefits to the state outweigh the burden on interstate commerce Balancing Test. Due Process Clause argument in commercial law setting being deprived of property (business) without due process under the 14th Amendment (cant vote to elect representatives to change laws which discriminate against the business). No check & balance ability on the discriminating state. Four considerations when state regulations affecting incoming commerce are challenged a. Could a less restrictive means accomplish the same purpose? Is there a less restrictive means or less burdensome alternative or a more reasonable alternative? b. Balance benefit to the state against burden on interstate commerce balancing test c. Has interstate commerce ended when the regulation takes effect use tax is okay. d. Is the regulation discriminatory? Difference between discriminatory as applied and discriminatory on its face a. Statute is discriminatory as written. b. Statute is discriminatory when it is applied to certain groups and not others. Two considerations when state regulations affect outgoing commerce are challenged a. Is this an undue burden on interstate commerce 1. Are out of state businesses being burdened while state businesses benefit

3. 4. 5.

6.

7.

8.

9.

b. 10.

2. Is there an even-handed effect on in state/out of state businesses? Are there other less discriminatory means available?

The market participant exception to discriminatory state regulations When the state is actually participating in that commerce, can sell back to the residents of that state at a reduced price or benefit Distinguish between market participant cases and personal mobility cases In cases of personal mobility, under the privileges and immunities clause, the states regulations cannot prevent U.S. citizens from moving across state lines for the purpose of exercising fundamental rights (i.e., employment). There is no market participant exception to the P&I Clause. a. Is a fundamental right being violated? b. Does it place citizens of each state on an equal footing? c. d. e. Market Participant challenged under ICC Personal Mobility challenged under Privileges & Immunities Clause Market Participant substantial interference with commerce Personal Mobility equal footing in traveling from state to state Market Participant this exception is recognized by the Court so it is highly likely that Court will honor it. Personal Mobility requires tight end/means fit substantial reason for discriminating against out-of-staters

11.

12.

When does federal law preempt state law (action)? where there is a conflict under the Supremacy Clause. Can be based on legislative history and not purely on legislation which has actually passed. a. Congress shows intent to occupy field, thereby preempting that field b. Congress did not totally occupy the field which leaves places for state law to come in Two competing goals of the Court when deciding whether a state tax violates the Interstate Commerce Clause. Under due process a state may tax an interstate business or activity if there is a minimum connection between the taxing state & the person, property or transaction taxed, and there is a rational relationship between the income attributed to that state and the intrastate values of the enterprises. Must not unduly burden interstate commerce. a. Tax does not prevent stream of commerce b. State has right to extract a fair share of cost of government (welfare, police powers) Four-prong Brady test for state taxation under Interstate Commerce Clause challenges A tax is permissible under the ICC if it: a. is applied to an activity with a substantial nexus to the state b. is fairly apportioned c. does not discriminate against interstate commerce d. is fairly related to the services provided by the state.

13.

. 14.

CHAPTER 4 FEDERAL POWER UNDER THE COMMERCE CLAUSE 1. How the definition of interstate commerce expanded a. Definition in Gibbons v. Ogden Commerce includes not only buying & selling but all commercial intercourse power to regulate interstate commerce included the ability to affect matters occurring within a state so long as the activity has some commercial connection with another state. b. Instrumentality Theory To the extent that each agency acts in the transportation of interstate goods, it is subject to the regulations of Congress. Employed in transportation of goods destined to or brought from other states, the instrumentality is involved in

c. d. e. 2.

commerce between the states and subject to federal regulation even if all activity takes place within the state. Movement v. Manufacture manufacturing is not commerce (movement). Therefore, Congress cannot regulate unless it has a direct relationship to commerce. Stream of Commerce - Expanded to include activities involved in the stream of commerce. Economic effects theory railroad regulation cases intrastate commerce having a substantial effect on interstate commerce can be regulated by the federal government.

How the Court reined in Congressional power of commercial activities a. Courts use of the 10th Amendment manufacture of goods is not interstate commerce and is not subject to federal regulations under 10th Amendment argument, power not specifically given to the federal government is reserved to the states. b. Findings of unconstitutional delegation of legislative powers Congress cannot delegate its powers of legislation to the executive branch; however, since the Sick Chicken Case no delegation has been held invalid. The Court Packing Plan of 1937 & resulting effects of commercial cases FDR decided to legislate an increase in the number of justices so that he would appoint them since the Supreme Court was not cooperating in his New Deal plan. Act was defeated, but it still had an impact on the Court which began to liberalize its holdings once again. New standard regarding the applicability of the Interstate Commerce Clause to intrastate activities (National Labor Relations Board) a. Deferred to Congress to define what commerce is manufacture of goods is commerce b. 10th Amendment argument is rejected. Further defining new standards a. Congress can control intrastate production if there is an aggregate/cumulative effect on interstate (Wickard wheat case) Primary considerations when the Court is reviewing a federal tax law or a federal spending measure a. Power to Tax: 1. Independent power under constitution 2. Not tied to the Interstate Commerce Clause 3. Does tax have regulatory effect & does it matter? primary purpose must be to raise revenue. 4. Is regulatory effect just incidental? 5. Exception when Congress already has power to regulate, they can tax as much as they want. 6. Expanded by the Necessary & Proper Clause b. Power to Spend: 1. For the General Welfare and Common Defense 2. Expanded by the Necessary & Proper Clause Meaning of conditional appropriation federal government can withhold funds for noncompliance with regulations. Conditions must be explicitly expressed so state can knowingly decide how to proceed. Impact of the necessary & proper clause on Congress taxing and spending powers expansion How Interstate Commerce Clause is used to guarantee civil rights? a. Establishments that serve interstate travelers b. Establishments that buy a substantial portion of goods which has moved in interstate commerce (aggregate effects theory).

3.

4.

5.

6.

7.

8. 9.

c. 10.

Used ICC to effectuate social change & Court allowed it even though primary purpose/motive might not be related to ICC but rather to establish a social policy.

How Interstate Commerce Clause is used to establish jurisdiction for federal criminal laws? a. Congress may enact criminal penalties in order to carry out its activities. Even though federal government does not have police power, the aggregate effect on commerce will uphold the regulation. Congress inherent power to establish criminal penalties for actions which interfere with a federal interest? How the Courts definition of interstate commerce changed from Atlanta Motel to Morrison? a. Heart of Atlanta 1. Plenary Power in Congress in ICC 2. Rational Relationship between activity regulated & interstate commerce affected 3. Motive doesnt matter 4. End/Means Fit = reasonable b. Morrison 1. Congressional power limited in intrastate activities economic activity that substantially affects interstate commerce 2. Now needs a clear nexus 3. Congressional findings are important 4. End/Means Fit = tight or narrowly tailored. The only way to regulate & keep IC from being affected. Three broad categories of activities that Congress may regulate under the ICC according to Morrison. a. Activity that is a channel of interstate commerce b. Instrumentality of interstate commerce c. Whether a completely intrastate activity substantially affects interstate commerce. Examples of Congressional commercial statutes which threaten state sovereignty a. New York radioactive waste take title provision was unconstitutional. Congress has substantial power under the constitution to encourage the states to provide for the disposal of the radioactive waste generated within their borders, but the constitution does not confer upon Congress the ability simply to compel the states to do so. The monetary provision (adopt guidelines for charging other states) and the access incentive (adopt guidelines for imposing a discriminatory tax on states who did not adopt guidelines) were constitutional b. Gregory mandatory requirement age for state judges authority of people of the states to determine the qualifications of their most important government officials is an authority to lies at the heart of representative government & guarantee under 10th amendment. c. Printz Brady Act giving even ministerial duties to state law enforcement officers to perform on behalf of federal government

11. 12.

13.

14.

CHAPTER 5 THE PRESIDENT AND CONGRESS 1. Meaning of separation of powers and checks and balances a. Separation of powers each branch of government has separate powers delegated under the constitution. b. Checks & balances although each branch has its own function, each branch oversees the other two in some manner. 1. Congress passes law executive can veto, judicial can override 2. Congress can change jurisdiction of courts, confirm justices, impeach

3. 2.

President can veto legislation, appoint judges

Examples of executive branch power over foreign affairs in terms of express, implied & inherent a. Expressed enumerated in constitution declare war, sign treaties (with ratification by Senate) b. Implied from the necessary & proper clause Congress can delegate foreign affairs powers expands expressed or inherent powers c. Inherent President has inherent powers in representing nation just because he is leader of nation To what extent may the President act without Congressional approval in the area of foreign affairs? a. Presidential powers are not fixed but fluctuate. When President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. When President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a twilight in which he and Congress may have concurrent authority or in which its distribution. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest, for then he can rely upon his own constitutional powers minus any constitutional powers of Congress over the matter. The War Powers Resolution and its effect on Presidents power to employ armed forces reassert more Congressional control over war power. If president initiates forces into hostilities absent a declaration of war, he must give written report within 60 days or terminate use of such forces. Differences between treaties and executive agreement a. Authorization for Validity 1. Treaty ratification by 2/3 vote of Senate 2. Executive Agreement No congressional approval required. If approval is solicited by president, only a simple majority of both houses is needed. b. Conflicts/Precedence 1. Treaty has precedence over prior acts of Congress & state laws, but a later act of Congress will override a treaty 2. Executive Agreement may not have precedence over prior acts of Congress does take precedence over state law. 3. Conflict between executive agreement & treaty is unsettled probably a political issue & nonjusticiable How Necessary & Proper Clause expands Congressional authority through treaty-making power can enact legislation necessary to carry out terms of the treaty. Which prevails when conflicts occur in the area of foreign affairs: federal statute, treaty, executive agreement, state law, federal court actions. All federal over state; Between the federal statute, treaty and judicial action, generally the latest one is the recognized authority. Still disputed when conflict is between executive agreement and federal statute/treaty. Executive agreement can override judicial claims especially when Congress explicitly or implicitly agrees with executive branch. How does Congress gain power if not given under Constitution a. Conditional appropriation b. Necessary & Proper Clause in order to implement or enforce any of the enumerated powers

3.

4.

5.

6. 7.

8.

9.

Examples of the discretion the U.S. Supreme Court has accorded Congress in matters regarding admission and deportation of aliens. a. Alien who legally becomes part of the American community has the same protection for his life, liberty and property under the Due Process Clause as is afforded to a citizen. Congress has broad power over the admission and deportation of aliens. Congress defines due process for aliens. b. Congress can discriminate among various groups of alien citizens. The fundamental, sovereign power of Congress is immune from judicial control. Since immigration decisions are largely made in light of changing political and economic circumstances, those decisions should be made by Congress or the President and not the courts. Congress also determines what equal protection is. c. Congress has plenary power in the area of immigration . How the rights of the following differ a. native born citizens Congress cannot take away citizenship of native born & naturalized citizens without the consent of the citizen b. Any distinction made by Congress between native born & naturalized citizens will be unconstitutional EXCEPTION president has to be a native born American. c. Congress may deny an individuals right to citizenship if the individual was not born in the US or has not obtained citizenship through naturalization can set conditions on those persons born to US citizens out of the country and/or those who marry U.S. citizens. What is the extent of the Congressional privilege in terms of individuals protected and activities covered (Article I, Section 6, Clause 1) a. members of Congress & their aides who are acting as their alter ego b. activity related to legislative function What is extent of executive privilege in terms of individuals protected, activities covered, and term of privilege this immunity is implied by Congress only no right set out in constitution a. Term lifetime b. President and/or aide who acts as alter ego c. Activities 1. When disclosure would subvert some crucial diplomatic or military object national security 2. Informer 3. Internal deliberation in executive branch 4. does not include unofficial acts 5. does not include prior acts The two types of invalid legislative vetoes and the constitutional basis for their invalidation by the Court. a. Where the Congress gives authority to executive branch but retains veto power over acts 1. Where one house retains veto power violates bicameral nature of the Congress and the Presentment Clause (where laws must be presented to President) 2. Where two houses retain veto power violates Presentment Clause 3. Line Item Veto Congress gave President power to veto line items. Not constitutional because it violates the presentment clause because President has to veto before it is signed into law and president can only veto entire bill not parts of it (which would be in effect allowing him to make new law). Dissent in this case argues that the president can always impound the $$ unless statute is explicit regarding fact that he must spend it,so what is difference between this & line item veto. Veto by Action straight up veto generally exercised by President

10.

11.

12.

**** 13.

b.

c.

Pocket Veto president just doesnt act to approve a bill has to be within the 10 day period at end of Congressional session. If he doesnt act at any other time during the session, the bill automatically becomes law.

14. 15.

How Train v. New York (1975) impacts the invalidation of line-item vetoes See above. Conflicts between the executive and legislative branches in the areas of appointment and removal of officers/government officials. a. b. c. d. e. f. President can appoint, with consent of Congress, ambassadors, consuls, justices of the Supreme Court, and all other officers of the U.S. whose appointments are not otherwise provided for. Congress may decide who can appoint inferior officers, but cannot appoint directly. Congress may never remove an executive official except through the impeachment process. Presidents power to appoint & remove executive officers may be limited by Congress for inferior officers if it does not impede the Presidents power to perform his duties. Federal courts have inherent authority to appoint a private attorney to prosecute a contempt of court order. Congress can delegate authority to make guidelines.

16.

Criteria which determine whether Congress can make or delegate judicial appointments. a. WHO can appoint/remove? President with the advice and consent of the Senate. Congress can say who will appoint inferior officers. Congress cannot appoint, but can say who can. b. WHAT kind of office? Whats the basis for removal? At will removal (majority of the executive branch officers) For cause removal During good behavior federal judges lifetime appt during good behavior c. WHY would for-cause removal be required? Cannot be removed by president if quasi legislative or quasi judicial Impeachment by Congress d. Principal officer or inferior officer (supervised by Presidential appointee) 1. Person can be removed by higher executive officer 2. Person with limited duties 3. Person with limited tenure e. Cant appoint inferior officers if it would interfere or impair separation of powers f. Whether branch was acting to vindicate their own authority Current status of the Independent Counsel law. Attorney General, under the Ethics in Government Act, can appoint special prosecutors (independent counsel) to investigate criminal acts and prosecute high ranking government officials. Can only be removed by Attorney General (for good cause is sufficient) and term is over when his job is finished. The Courts criteria for constitutionality when Congress appoints a commission to make judicial rules. Where Congress improperly gives a review board composed of members of congress power to veto executive agencys actions could be said to actually be improper legislative power since the board would by-pass bicameral house and presentment clause; alternatively, the board could be viewed as executing a law which is the executive branchs function separation of powers Congress has considerable flexibility in assigning judicial branch tasks which are law-making ones, where subject matter concerns role of courts.

17.

18.

a. b. c.

location of commission under judicial branch Congress cant perform executive duties Composition of commission Presidential Control cant be vetoed by Congress

Congress furnishes sufficient guidelines for commission to follow. Similar powers shared by 2 branches. 19. Reasons given by the Court for invalidating a state constitutional amendment setting term limits for their Congressmen. A state may not impose qualifications for membership in Congress in addition to those provided in the federal constitution. Framers intended that states not set qualifications, wanted direct link between federal government & people. CHAPTER 6 DUE PROCESS 1. How the Courts interpretation of substantive due process changed from The Slaughter House Cases and Allgeyer to Nebbia. a. b. c. Slaughter House 14th Amendment does not usurp the power of a state to decide for itself the privileges and immunities afforded its citizens. Allyger 14th Amendment applies Due Process Clause to states holding that states cannot pass legislation which would prevent the exercise of freedom of contract (liberty) Lochner legislatures actual motive is what would be indicative of violation of substantial due process. Refused to defer to legislative findings of fact. Very close fit between statute & its objectives. Strict scrutiny used where a fundamental interest is at stake. Nebbia economic legislation will not impose upon legislatures it own view about correct economic policy the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.

d.

2.

The 14th Amendment Due Process Clause as a means to apply the Bill of Rights to state government action. First Amendment - speech, press, assembly, petition Second Amendment not applicable to states Third Amendment has not been litigated 4th Amendment unreasonable search/seizure 5th - guarantee of grand jury has not bee applied to states but other guarantees have double jeopardy, self-incrimination, just compensation. 6th speedy trial, public notice, notice of charges, impartial jury, jury trial, confrontation, compulsory process, counsel 7th right to jury trial on common law with over $20 in controversy NOT APPLICABLE TO STATE 8th cruel & unusual punishment 9th NOT APPLICABLE TO STATES 10th state right Applies to corporations as well as people 14TH AMENDMENT APPLIES TO STATE ACTIONS THAT DEPRIVES OF PROPERTY NOT ACTIONS OF THIRD PARTIES.

3.

The Due Process Clause of the 5th and 14th Amendment as a means to fashion non-textual constitutional rights. Most important right to privacy. Once a right is incorporated under the Bill of Rights, it is applied to the states under the 14th amendment.

4.

Distinction between substantive due process and procedural due process. a. Procedural court would examine governmental procedure to see if government has provided fair hearing before deprivation. b. Substantive limitation upon the substantive power of state legislatures to regulate various areas of economic and non-economic life doctrine relying on the 14th amendment to invalidate a substantive state regulation is commonly called the substantive due process doctrine. c. Punitive Damages judicial review must be allowed 3 factors for determining excessiveness 1. The degree of reprehensibility of the defendants conduct 2. The ratio between the punitive award and the actual harm 3. The difference between the punitive award and civil and criminal sanctions imposed for comparable misconduct. d. Conditional rights such as those of visitation allowed to prisoners are at the discretion of the government official. The meaning of life, liberty, and property. a. Life appears to be fairly obvious, but when does life start rise to abortion issues, euthenasia, etc. b. Liberty unreasonable restraint includes various medical restraints as well c. Property most controversial At first was given a literal meaning. Then courts started assessing various governmental benefits to see if they were property entitlements usually what the government has given you (social security basis, but not supplemental must be necessary to in order to survive education). Factors which will determine what process is due. a. Whether something is life, liberty or property b. Determines what process (how extensive) would be fair and when it should occur. When necessities of life are involved will probably have to be pre-termination. Post-termination process is valid in other non-necessities. c. Courts look at: 1. importance of individual right involved 2. value to individual of specific procedural safeguards to that interest would it easily & efficiently clear up the matter if the mistake could be prevented 3. governments interest in fiscal and administrative efficiency. Components of a fair hearing. a. Notice about to lose right; reasons therefor; date of hearing b. Right to confront & examine witnesses & present evidence c. Right to counsel d. Decision resting on legal rules & evident at hearing e. Impartial decisionmaker The Courts interpretation of bills of attainder. A law that legislative determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial. An act of Congress that applies undesirable consequences to only one person is not necessarity a bill of attainder. FUNCTIONAL TEST WHETHER THE LAW FURTHERS NONPUNITIVE LEGISLATIVE PURPOSES (PRESERVES I NFORMATION AND PROTECTS PUBLIC INTEREST)

5.

6.

7.

8.

MOTIVATIONAL: WHETHER THE LEGISLATIVE RECORD INDICATES A CONGRESSIONAL INTENT TO PUNISH 9. Contrast contractual impairments by state government; by federal government; in times of emergency; where public contracts are involved. a. State government Constitution specifically prohibits states from impairing contracts (Article I). Looks at state law more closely that federal because that is what is in the Constitution. b. Federal government no specific mention in Constitution, but due process clause of 5th Amendment has been held to extend the same to the federal government. c. A state may make modifications to contracts if: there is an emergency; the measure taken protects a basic societal interest; the modification is reasonable and appropriately tailored to the emergency; and the statute is limited to the duration of the emergency. d. Cannot expand or give right that are already agreed upon in the contract (pension plan obligations & vesting). e. Public contracts courts will closely scrutinize a states attempt to escape from its financial obligations and will only permit an escape where a significant public need exists that cannot be reasonable handled in any other way. Will look at states more than federal. The concepts of public use, taking, just compensation Public Use anything that affects moral, social, economic, aesthetic needs of the public Taking have to balance the need of government for property for public benefit against denial of viable use of owner devaluation Just Compensation fair market value 11. Illustrations of taking by possession and taking by regulation a. b. Condemnation government comes & declares condemnation of property by exercise of eminent domain. Taking by Possession 1. Inverse Possession property owner say government has taken property chicken/airplane case Pruneyard shopping center 2. Owners actions convert private lane to public use pond expansion into navigable water 3. Permit conditions are not tied to the governments purpose for the permits a. Must have a nexus might have tight means/end fit between the permit objective and the condition placed on issuing permit 1. obstruction of beach v. public easement over property NOT (Nollan) b. If there is a nexus then there must be a rough proportionality between trade-off demanded by city & the burden to the public from the owners proposed development. 2. (Dolan) Flood prevention/traffic regulation Taking by Regulation 1. Zoning reasonable with rational relationship with some legitimate state objective 2. 1992 Coal Act Eastern Enterprise case severe retroactive burden amounted to taking of property = $$$$.

10.

c.

CHAPTER 7 STATE ACTION 1. The meaning of state action and it constitutional significance. The private individual is bound by U. S. Constitution when acting as a state actor (apply Luger test). Can bring the action in Federal Court. 2. 3. History of use of the 14th amendment to prevent discrimination by private individuals Examples of the use of the public function doctrine to establish state action. Functions as a private owner extends property to public, more his rights must yield to those who use it: 1) private company town 2) shopping mall 3) Civil Rights Act 4) Americans w/Disabilities Act. 4. State action arguments in cases involving election primaries. Elections actions government basically condoned actions; therefore, became a government actor white primary cases 5. When state judicial action constitutes state action Granting enforcement of a racially restrictive covenant/agreement in effect condones a discriminatory action thereby violating 14th amendment. Denial of relief by the Court is not state action 6. Examples of symbiotic and financial relationships which would result in a private party being subject to constitutional restraints. Restaurant in government building; government contracts; schools 7. 8. The effect of licensing or regulating a private action on the issue of state action Does not automatically establish state action. The effect of delegating traditional functions to a private actor or facilitating/encouraging/ authorizing a private act which violates constitutional principles ACQUIESENCE IS NOT SUFFICIENT. The basic test to determine when a deprivation of a federal right by a private actor is fairly attributed to the state: LUGER test (see page 49 of old notes) a. b. Deprivation must be caused by exercise of some right or privilege created by the state or by a rule of conduct imposed by the state by a person for whom state is responsible. Party charged with the deprivation must be a person who may fairly be said to be a state actor. 1. state official 2. has acted together with or has obtained significant aid from state officials or 3. conduct is chargeable to the state. READ SUPPLEMENT AMERICAN MANUFACTURING CASE

9.

c. 10.

How the Lugar test has been applied to find state action in provisions of a states Workmens Compensation Act and to jury selection in court.

Attorney is officer of the court & acts on behalf of court. Therefore, acts on states authority in selecting jury state sanctioned & state supervised activity. 11. Whether a private associations actions are state action when the states rules mirror the rules of the private association. Just because state actor chooses to abide by the will of a private party, it does not make the private party a state actor. CHAPTER 8 EQUAL PROTECTION 1. 2. 3. 4. Overview of the Equal Protection guarantee and how it compares to the Due Process. Criteria for passing the three levels of scrutiny applied by the court see Gingers chart How to know the level of scrutiny the court will apply see Gingers chart How the court analyzes statutes dealing with economic/social issues a. Government may classify people b. Must not be arbitrary classification reasonable basis c. Does not have to be mathematically balanced d. Courts accepts governments basis of facts e. Challenger has the burden to show it is arbitrary. How the court analyzes statutes which distinguish between racial groups (criteria for determining suspect class) a. Whether class is discrete & insular minority b. Immutable characteristic cant be changed c. History of discrimination against the group d. Whether class is politically powerless Separate is inherently unequal. 6. Distinction between a violation of equal protection as applied and on its face a. as applied words in statute are neutral but application by state is unequal law enforcers & law appliers b. on its face words in statute are discriminatory in & of themselves law makers Distinction between de jure discrimination and de facto discrimination a. dejure intentional, law; may have racially neutral terms or not; as applied or intent to discriminate b. de facto not intentional; circumstances; always racially neutral terms; effect or impact of law results in discrimination. When a showing of governments motive or intent is necessary to prove a violation of equal protection. When the statute is racially neutral in its terms and it has a disparate impact or effect, then must show intent to discriminate in passing law or in the way it is applied. 9. Justifications accepted by the Supreme Court for benign discrimination on the race. a. Programs necessary to remedy past discrimination b. Also known as reverse discrimination or affirmative action c. Legal basis 1. 14th amendment 5 Congress may take certain actions to guarantee rights

5.

7.

8.

d.

e. 10.

5th amendment violation of Equal Protection could rise to violation of Due Process Clause 3. Civil Rights Act Justifications 1. Trying to achieve greater diversity Bakke 2. Role Model 3. Remedy past discrimination in correcting a specification cannot be discrimination in society as a whole Only remedy which survived 1995 Adarand case was #3 2.

Current constitutional standards for affirmative action programs. Remedy past discrimination in correcting a specification; strict scrutiny now applied must have a compelling government interests. Adarand references an Alabama case Paradise past discrimination provides compelling interest & makes reverse discrimination okay. Three categories of alienage cases a. economic matters when state makes classification strict scrutiny aliens pay taxes & therefore should benefit from things that the taxes go to. b. political matters rational basis c. classifications created by the federal law federal government makes classification rational basis constitution gives naturalization/immigration regulation solely to Congress. Comparisons of the constitutionality of state and federal laws which classify and disproportionately burden aliens state v. fed on economic issues Justifications accepted by the Supreme Court for classifications based on legitimacy of birth which place greater burdens on illegitimate children Quasi suspect classes intermediate scrutiny Previously needed to be able to rely on witness testimony in order to establish now DNA testing The Courts view of classifications based on gender pre-Reed (rational basis) and post-Reed (intermediate basis). Treats gender as a quasi-suspect class. Examples of important governmental objectives and ends-means which are substantially related. The importance of de jure v. defacto discrimination in gender and illegitimacy cases. The standard of review in reverse discrimination cases based on gender classifications. The level of scrutiny applied to laws which classify on the basis of age, wealth, or mental retardation and which do so involve fundamental rights just has to be a reasonable basis unless fundamental rights are involved.

11.

12. 13.

14. 15. 16. 17. 18.

POSSIBLE ESSAY TOPICS FOR THE FINAL EXAM IN CON LAW I. 1. 2. 3. The Dormant Commerce Clause Theory and State Commercial Laws State Action Equal Protection and Suspect Classifications.

CONSTITUTIONAL LAW II FUNDAMENTAL RIGHTS 1. Rights which are considered fundamental under the federal constitutional jurisprudence a. Those guaranteed by the Bill of Rights b. Access to the Court c. Voting d. Right to Travel e. Privacy/Sexual Autonomy How the Court views a denial of access to courts i.e., what amounts to a denial of access. Right to transcript on criminal appeal Right to appellate counsel in criminal cases only on 1st appeal or appeal as matter of right or any critical stage prior to appeal Waiver of filing fees in divorce cases Paternity tests Fees in civil case re: appeal of termination of parental rights Court may not automatically revoke probation for failure to pay fine if defendant is indigent. 3. The portions of the U. S. Constitution which assure access to courts. 14th Amendment Due Process & Equal Protection Clauses 6th Amendment 4. Contrast the Courts view of denial of access in civil cases vs. denial of access in criminal cases. a. Courts do not have to waive fees for bankruptcy b. Courts do not have to waive fees for actions seeking more welfare benefits The portions of the U. S. Constitution which assure the right to vote and to have your vote count. a. 14th Equal Protection b. 15th prohibits discrimination on basis of race, color or servitude c. 19th prohibits discrimination on basis of sex d. 24th prohibits discrimination on the basis of pll or other taxes e. 26th prohibits discrimination on basis of age The meaning of one man one vote in apportionment challenges and to which offices does the principle apply. a. b. c. d. e. f. 7. Votes cannot be weighed differently on the basis of where the voters happen to reside Equal Representation for equal numbers of people Substantial equality of population must be the overriding objective Must have reasonable plan for periodic readjustment States may have different districts/rules for election of state/local officials mathematical equality is not required; however, if the population disparities are significant, the state must justify the deviation. Absolute population equality is the paramount objective of apportionment in the care of Congressional districts.

2.

5.

6.

Contrast the Courts view of mathematical precision in apportionment challenges relating to state election districts v. Congressional election districts. a. Absolute population equality is the paramount objective of apportionment in the case of Congressional districts.

b.

c. d. e. f.

States may have different districts for election of state/local officials mathematical equality is not required; however, if the population disparities are significant, the state must justify the deviation. May consider age, citizenship or any other requirements relevant to voting & compelling state interest. Wealth & payment of a fee are not relevant factors. States cannot set more strenuous requirements for access to local ballots than for state ballots unless it serves a compelling interest. States must not unnecessarily restrict constitutional liberties No unreasonably large filing fee, no requirement for elaborate primary elections, no unreasonable early filing date Race can be considered in setting out voting districts but may not be used primarily must be secondarily considered. Purposefully setting out to establish districts based on race is not permissible. Neutral principles should be used.

8.

The meaning of extraordinary and concurrent majorities. a. extraordinary majority majority greater than 51%, i.e., requirement of 2/3rds approval b. concurrent majority majority of each of two separate groups. The branch which determines how the census will be taken and which determines the method for using census information to set the number of representatives to be elected from each state. Criteria the Court will use to scrutinize voting requirements set by states. What is considered by the Court when challenges concerning access to the ballot are heard (arguments of the plaintiffs & defenses of the state) Whether and what length of time durational residency requirements are constitutional in matter pertaining to: a. Welfare one year residency requirement is unconstitutional impair fundament right of interstate travel. Denial of basic necessities. States interests in preserving financial integrity of state welfare program, discouraging fraudulent payments from more than one state, providing objective test of residency legitimate but not compelling. b. Medical Care is a necessity of life & states interest can be served by less inhibiting means, penalizes interstate travel. c. In-State Tuition at State University may charge higher rates for out-of-state students, but they must be able to attain residency after being in the state for an appropriate time. May refuse to provide free tuition for children not living with their parents or guardians. d Voting residency requirements may burden the right to vote & the right to travel (30-50 days is okay) e. Candidacy durational requirements are permissible. Constitution sets requirements for senator (9 years) and representatives (7 years). f. Continuing Residency of Government Employees can require employees to be residents of city compelling city interests in having city employees live in city. g. Divorce Proceedings may establish residency requirements to avoid intermeddling in matters in which another state has a paramount interests. Domestic relations is an exclusive province of the states. h. Changing classification of crimes court upheld states right to upgrade classification of crime (abandonment of child) if parent left state v. parent still in state. i. Disbursement of cash benefits to citizens may not distribute income derived from natural resources according to length of residency (creates permanent subclasses) j. Exemption of property taxes property taxes should be based on value of property not length of residence Whether foreign travel is a fundamental right. If not, why not?

9. 10. 11. 12.

13.

There is no fundamental right to travel internationally. The government may revoke a passport based on national security and foreign policy reasons. This is an inhibition of action, not speech. There is a liberty interests which is protected by the 5th Amendment Due Process Clause you have a right to be heard prior to revocation of passport. 14. The differing standard of review of ordinary and fundamental liberties Ordinary rationality standard Fundamental strict scrutiny 15. Two types of privacy interests privacy is a liberty interest a. b. 16. individual interest in avoiding disclosure of personal matter interest in independence in making certain kinds of important decisions; i.e., personal autonomy

How the equal protection clause was used by the court to find an Oklahoma sterilization statute unconstitutional Fundamental right to marriage & procreation; therefore, state had to have compelling interest in classifying groups as the state had done in order to sterilize based on criminal background/tendencies.

17.

The justifications offered by the individual Justices for finding a right to privacy in U.S. Constitution (Griswold) a. Douglas argued the penumbras (shadowy areas around specifically guaranteed rights) 1. operates directly on an intimate relationship between husband & wife 2. 1st Amendment gives peripheral rights not specifically set out 3. Zones of privacy are generated by penumbras b. c. Goldberg, Warren & Drennen argued that the 9th Amendment specifically states that other rights not expressed in the Constitution are retained by the people Harlan advocated the Natural Law theory or the natural rights of man. These are rights that do not have to be included in the Constitution, rights to be protected even against will of the majority (legislation). White 1. 2. 3. Denial is arbitrary & capricious Sensitive area of liberty, therefore, fundamental right, therefore, strict scrutiny Purpose to discourage extramarital affairs statute overly broad

d.

e.

Dissent Black & Stewart 1. Right to Privacy is not in the Constitution strict constructionist theory 2. Gives judiciary right to make laws which expands their power over that given in the Constitution 3. Stewart went further & said that the legislature should take the silly law off the books.

18. 19.

The meaning of penumbras and emanations. Further defining the right to privacy (Eisenstadt & Carey) a. expands to individual b. non-prescription contraceptive can be sold w/o prescription does not extend to minor

20.

Decisions recognizing marriage as a fundamental right. a. Zablocki may not require approval by court before a second marriage is allowed if there was a child of the 1st for whom support is still due. b. Lovin legislative ban on interracial marriage is unconstitutional The opposing arguments in Roe v. Wade a. Right to privacy as part of the liberty interest guaranteed by the 14th Amendment is broad enough to encompass a womans decision whether or not to terminate her pregnancy. 1. 1st trimester womans interests are greater 2. 2nd trimester womans privacy interests and the interests of state in preserving mothers life are balanced (risks to mother greater in 2nd trimester). 3. 3rd trimester states interests in preserving life of child is greater. This right is fundamental and strict scrutiny is applied. b. Dissent relative weights to assign to the life of the mother or the potential life of fetus is best left to the political process. c. Dissent strict scrutiny not the appropriate level of review should be a rational basis. d. State has interest in protecting health of mother & potential life of unborn child. Compelling point for protecting mother kicks in at beginning of 2nd trimester regulations can protect the mother. Compelling point for protecting viable fetus at beginning of 3rd trimester. Primary consideration can be given to unborn child & still with interests in mothers health. If there is a conflict, the mothers health & life are a greater interest. Abortion issues which arose in the wake of the Roe decision Danforth: state can require consent for abortion in writing, record keeping requirements; invalidates requirement for spousal consent (parental consent in case of minors is okay but there must be provision for judicial bypass to protect the minor) Bolton: abortion not required to be performed in hospital 24 hour waiting period struck Requiring a second opinion - struck Casey:Trimester test v. viability v. compelling points during pregnancy

21.

22.

23. 24.

Whether states must pay for abortions for indigent women yes in therapeutic cases if State pays for pregnancy care; not in non-therapeutic cases How the Casey decision changed the Roe standard (i.e., what was upheld & what was modified) Upheld Roe but rejected trimester framework. Established viability as the only compelling point a. Mother has right to have abortion before viability b. State can restrict abortion after viability with except for mothers health c. State has right to protect mothers & childs interest after viability.

25.

The basic reason for Roes reaffirmance in Casey. a. b. stare decisis will not overturn precedents unless it has proven unworkable or the underlying basis is unconstitutional. Everyone relies upon law as it currently exists. Women were able to participate in economic affairs (work) in the country

26.

The undue burden test of Casey. a. A substantial obstacle being placed in the way of womans right to abort a non-viable fetus. b. Applied a heightened scrutiny which is somewhere between intermediate and strict Further defining undue burden in the wake of Casey. Steinburg partial birth abortion invalidated statute because it distinguished between method of abortion which is a medical decisions more properly left to the physician. Statute didnt distinguish between post-viability and pre-viability stages. Safety cannot be used as rationale.

27.

28.

How the right of privacy impacts issues of sexual autonomy. a. No fundamental right extends to consensual homosexual activity. b. Homosexuality has long been viewed as immoral and the state has legislative authority to forbid it c. An otherwise illegal activity is not constitutionally protected just because it takes placed in the home. d. There is no fundamental right to choose sexual activities. Constitutional amendment which prohibited a branch of government from protecting homosexual or allowing discrimination against them was a violation of the Equal Protection Clause of 14th Amendment lacked a rational relationship to a legitimate state interest. Animus toward a politically unpopular group cannot constitute a legitimate state interest. Rational Basis Scrutiny. Right to Die a. Withdrawal of life support rational basis scrutiny state can require clear & convincing evidence of patients wishes. b. Assisted Suicide rational basis scrutiny state has legitimate state interests in preventing assisted suicide & protecting medical ethics protects vunerable groups.

29.

CHAPTER 9 CIVIL RIGHTS AMENDMENTS 13, 14, 15 1. Review of the contents of the 13th, 14th & 15th amendments and their enabling clauses: a. b. c. d. 2. There is an enabling clause in each of the 13, 14 & 15 amendments gives Congress power to enforce amendments by appropriate means. 13th Slavery or involuntary servitude; congress is given great leeway in determining what is involuntary servitude. 14th Guarantees that states wont interfere with individual rights due process, equal protection, privileges & immunities. 15th Voting not based on race

Examples of statutes passed under the enabling clauses a. 14th Amendment 1. Prohibition of literacy tests upheld denied Equal Protection b. 15th Amendment 1. Lowering voting age to 18 invalidated c. 42 USC 1983 if any person acting under color of state law deprives another of a Constitutional right an action may be brought. The extent of congressional power under the enabling clauses: a. Congress cannot define substantive rights under the Civil Rights Amendments.

3.

b.

Florins Court has right to define rights & then Congress may protect those identified rights. Can provide remedies for situations recognized by Court. Congress may not define substantive rights under the enabling clauses. Congress exceeded its power under the enabling clause in passing the Religious Freedom Restoration Act use of peyote in religious ceremonies disqualified persons from receiving unemployment benefits. Congress tried to restore strict scrutiny to religious practices. Congress cannot add new substantive right cant say that peoples religious rights need to be protected under the 14th Amendment. If its a law of general applicability, it only has to have due process provisions & be rational.

5.

Discrimination on the basis of race which is actionable under the 13th Amendments: a. b. c. d. e. Private actions can be regulated under enabling clause of 13th Amendment to prohibit private individuals discrimination on race only covers intentional discrimination. Refusal to sell or lease property based on race is actionable under 42 USC 1982 42 USC 1981 prohibits racial discrimination in the making and enforcement of private contracts, including the general offer by the school to attract qualified students. 42 USC 1985 provides a cause of action for private conspiracies to deprive a person of the right to interstate travel, so long as the plaintiff can show some radial or class-based motivation for the interference with the right. Proof of intentional discrimination is necessary for liability to be imposed mere proof of disparate racial impact is not enough.

6.

Discrimination on the basis of race which is actionable under the 15th Amendment: a. Strict Scrutiny is applied deals with fundamentals rights (voting) and a suspect class (race). b. There is no private right of action under the Voting Rights Act it is directed at government to assure fairness. Challenges are brought under 15th Amendment, Section 1. c. Congress may use any rational means to effectuate the 15th Amendment. d. Literacy tests are presumed discriminatory. e. Redistricting for obvious purpose of excluding most black voters is unconstitutional. f. Includes intentional and unintentional discrimination disparate impact/effect and disparate treatment. Discrimination on the basis of race which is actionable under the 14th Amendment: a. Florins RFRA Congress cannot define, enlarge or subtract from substantive rights un the enabling clauses b. Morrison (decided in 2000) 14th Amendment is not aimed at individuals so Congress cannot limit individual action under the 14th Amendment but must be directed at state action/actors. Standards for constitutional use of racial criteria in designing voting districts a. Can use geographical boundaries, population, compactness, political natural boundaries, consistency, equality in numbers. b. Remedying past discrimination is not a compelling state reason c. Race can be considered but must be secondarily considered, not primarily. May have an awareness of race, but not be motivated by it.

7.

8.

CHAPTER 11 FREEDOM OF SPEECH/EXPRESSION 1. Origins of the high level of protection afforded speech rights. a. Has a preferred status among constitutional rights.

b. c. d. 2.

Court relaxes the standing requirements & allow more people to sue on that basis. Strictly construe statutes to avoid limiting expression (1st Am. Freedoms) err on side of individuals right to speak out. Higher demands of procedural due process required.

The values promoted by free speech protections a. Freedom of expression is the preeminent right to a democratic society b. Truth will emerge from open marketplace of competing ideas c. Free will or self-fulfillment d. Freedom of expression is essential to curbing government abuse of individuals e. Expression deters violence (safety valve) Preferred Position of Free Speech guarantees most important freedom in the Constitution. Recurring arguments in free speech challenges a. Prior Restraint when government action is taken in advance of speech & prohibits that speech. b. Overbreadth Doctrine a statute is overly board encompasses both constitutional & unconstitutionally covered speech. c. Void for Vagueness doesnt have enough specificity to give fair notice of people d. Least Restrictive Means application of strict scrutiny for fundamental rights narrowly tailored - necessary to further compelling government purposes. Classifications of speech regulations and standards of review a. Content Based v. Content Neutral (not used as much since 1992) 1. Content Based if governments purpose is to regulate the communicative impact (prevent reaction to speech), the law will generally be struck down as unconstitutional. STRICT SCRUTINY 2. Content Neutral if government action is aimed at something other than impact or effect, the law will generally be upheld. INTERMEDIATE SCRUTINY a. Significant Governmental Interest b. Narrowly tailored c. Must leave open alternative channels b. Facially Neutral v. As Applied 1. Facially Neutral terms of statute are not unconstitutional on its face b. As Applied the application of the law is unconstitutional selective application c. HIGH SCRUTINY 1. Political Speech ideas d. INTERMEDIATE SCRUTINY 1. Time, Place, Manner Regulation 2. Commercial Speech 3. Conduct Based Speech such as flag burning, nude dancing, non-verbal expression e. LOW LEVEL SCRUTINY (Unprotected Categories of Speech) 1. Obscenity 2. Child Pornography 3. Violent Speech (Incitement) 4. Defamation Tests Employed by Court in the past when political speech regulations were challenged a. Clear & Present Danger speech could be punished as an attempt to commit an illegal act if the speech created a clear & present danger that the illegal act would come about (Schenck conspiring to oppose draft) b. Learned Hand test speech could be punished if they counsel or advise others to violate the law as it stands, but not if they are merely critical of the law. This made the likely effects of the speech irrelevant.

3. 4.

5.

6.

7.

The modern test for political speech regulations Brandenburg a. Advocacy is directed to inciting or producing imminent lawless action and b. Advocacy is also likely to incite or produce such action Prior restraint doctrine STRICT SCRUTINY a. Any government action that stops speech before it can be communicated; serves as censorship by government since it keeps information from the public b. Exceptions 1. Military information 2. Political speech on military bases 3. Sensitive National Security Information 4. Imported Obscene Material c. The only possible power the government has to restrict publication arises from its inherent power to wage war successfully however, this must be a DECLARED war. d. Courts cannot issue temporary stays, restraining orders to accommodate the governments desire to suppress freedom or the press without adequate proof of a direct, inevitable and immediate serious adverse effect. e. The executive branch, not the courts, has the duty to protect confidentiality through executive regulations. f. Prior restraint doesnt chill free speech, it freezes it before it occurs. g. An injunction is a form of prior restraint & is subject to strict scrutiny. The Courts four-part analysis for time, please and manner restrictions on speech and the rationale behind their analysis INTERMEDIATE SCRUTINY EXCEPT FOR INJUNCTIONS WHICH ARE A PRIOR RESTRAINT WHERE THE COURT WILL APPLY STRICT SCRUTINY a. Is it content neutral? b. Is it directed at achieving a significant or important government interest, i.e., directed at secondary effects c. Is it narrowly tailored to achieve the governmental interests doesnt have to be the only means or least restrictive means d. Does it leave open ample alternative channels of speech? The proper time to challenge a time, place or manner restriction is upon its application The impact of government officials having unfettered discretion to restrain speech If a government official is left with a high level of discretion without specific guidelines then the ordinance, permit, licensing is likely to be held to be unconstitutional since it can be applied in a discriminatory manner, may be overbroad, or vague.

8.

9.

10. 11.

12.

The extent to which government can protect its citizens from fraud & annoyance Charitable solicitations are protected by the 1st Amendment due to the speech interests they implicate. There is no necessary connection between fraud and high solicitation expenses. Prohibiting solicitation is not the least intrusive means of protecting against fraud.

13. 14.

The legality of anonymous literature cannot ban publication merely due to anonymity. Public forum doctrine and three ways that areas become recognized as a public forum. A public forum is an area devoted to assembly & debate that is open to the public a. Public Forums 1. Traditional (streets, parks, sidewalks, where public meetings take place) 2. Designated (special meetings usually for a temporary period) 3. Individual commandeers a site that is not a public form (i.e. sit-in occurring in library or on campus)

b.

Semi-Public Forum 1. library 2. school Non-Public Forums 1. publicly owned airport terminal can distribute literature but may not solicit funds because that is less disruptive to the traffic flow (govt purpose). May solicit & distribute on sidewalk outside airport. 2. jails 3. military bases 4. inside of courthouse 5. inside of schools (when used afterhours) 6. government office buildings 7. No 1st amendment right to access of anothers private property (shopping center). State trespass laws may be used to prohibit demonstrations. 8. Prohibition of distribution of campaign material within 100 feet of polling place upheld survived strict scrutiny applied due to content based nature of ordinance.

c.

15.

The Courts view of regulations of speech occurring on public property (Note: Courts view differs according to the type of public property). a. Traditional strict scrutiny b. Designated strict scrutiny c. Government Property which is not a public forum rational 1. interrupts daily business 2. alternatives available 3. rational scrutiny d. Speech may be categorzied in broad categories for purposes of evaluation without making the intent of government content-based. e. If government selected basis of speech viewpoint = content-based. The extent of Congressional power to limit speech in government subsidized activities i.e., family planning if they spend the money, they can regulate. When government is subsidizing program, it may dictate speech as long as it is rationally related to the purpose of program. TAX EXEMPT STATUS qualifies as a subsidy. The constitutional test for injunctions restricting speech as to time place and manner in a public form. Will apply strict scrutiny whether the injunction burdens no more speech than necessary to serve a significant governmental interest (8 foot zone at abortion clinics is okay)

16.

17.

18.

Considerations of the Court when government actions or statutes/ordinances restrict speech which may be the inciting words of Brandenburg a. Captive audience if you are not being forced to listen/see may avert eyes, ears or otherwise avoid the speech, not a captive audience (Fuck the Draft v. advertisements in city buses. b. Distinction between inciting words and merely offensive words offensive words are okay. Words that merely invite dispute are not inciting merely offensive c. The common mans understanding d. Hostile audience if person is using inciting words & speaking to hostile audience may be okay to arrest for disturbance of peach if a request to stop speaking is not honored and that is the only means to control the audience. e. Governments intent f. Banning conduct v. speech can prohibit conduct, the fact that speech is also involved doesnt shield the conduct

19.

Reasons for applying different standards to print media vs. electronic/broadcast media a. permanency v. transient nature of media b. limited access (frequencies licensed through FCC) v. more available access (newspaper) When government requires the media to disseminate speech designated by law a. Cannot require private company to disseminate b. Subsidized speech economic regulation is okay When government regulates certain kinds of media speech the significance of content-based vs content-neutral. a. Cannot restrict editorializing in public broadcast even though Congress is paying for programming - that would be a content-based restriction. b. Newspapers no right to reply would have chilling effect on papers & their coverage c. FCC can regulate time, place & manner over which certain types of programs may be broadcast (George Carlins 7 dirty words) d. Can exclude candidate on public broadcast not a public forum, merely government funded program selective access (Forbes) e. Sexually offensive speech over cable licensing stations may restrict but choice should be left with viewer f. Cable companies may be required by FCC & Congress to carry local programming.

20.

21.

MIDTERM 22. The Courts findings of no special protections for the press under the 1st Amendments freedom of expression and the press clause and the statutory exception Freedom of the Press right belongs to the public not to the press. Public has right to all information & shouldnt be limited. The publics right to knowledge is greater than the informants right to privacy. PRIVACY ACT reaction of Congress to courts findings in Zurcher (newspapers subject to search warrants) a. applied to state & federal employees prevents such from searching/seizure of work product which is intended to be disseminated to the public by public communication. b. exceptions -national security, classified information or restricted data, if there is reason to believe that immediate seizure is necessary to prevent death or serious bodily injury. c. passed under authority of the Interstate Commerce Clause (affects interstate or foreign commerce. 23. The use of the 1st Amendment as a shield for the defendant (and conversely, as a sword for the public/press) in the fair administration of justice. a. shield right of defendant to fair, impartial, unprejudiced trial under 6th amendment sword right of public to know what is going on in trial & judicial matters or governmental functions gag orders or restrictions keeps knowledge from public Defendant can be protected without closing the press out by: 1. change of venue 2. continuance to allow cooling off period 3. sequester jury 4. judge can conduct more extensive voir dire to rule out undue influence by press

b.

c. d. e. f.

Prior restraints such as injunctions or judicial restraining order will be frowned upon STRICT SCRUTINY 6th Amendment does not override the 1st Amendment there is a balancing act Judge cannot prevent publication of information obtained in open court. Judges have more control over players in trial & started exercising that power attorney, parties, witnesses, juror (strongly enforce ethic rules for atty) 1. Shield prevents disclosure of pretrial discovery information in advance of trial 2. Sword if press obtains information on its own it is okay to publish 3. Sword criminal trials are public and press may attend even if the is agreement of the parties to close the trial. 4. Sword may allow electronic coverage of criminal trial even if defendant objects.

24.

Definition of commercial speech a. b. c. Speech which advertises a product or service, usually for profit. The main reason commercial speech is constitutionally protected is to benefits and protect consumers. Proposes a commercial transaction. INTERMEDIATE SCRUTINY Includes non-profit speech.

25.

Development of commercial speech doctrine (1942-1976) (VA State Board). a. 1942 originally held to be unprotected speech & could be regulated by government b. VA Board of Pharmacy 1st recognized commercial speech should receive protection under 1st Amendment should receive intermediate scrutiny. The Courts four-part analysis for commercial speech challenges (Central Hudson Gas) Stated that there was no distinction between promotional and informational commercial speech a. b. c. d. Does it concern a lawful activity & is speech not misleading Does government have substantial interest asserted in support of the regulation Does restriction directly advance the government purpose Is the means/end fit narrowly tailored

26.

Can only ban commercial speech due to communicative impact if Brandenburg requirements are met advocate imminent lawless action & likely to produce such action 27. The extent to which government can limit the advertising of legal activities . . . or . . . regulate an advertisement containing untruthful or misleading information . . . or . . . ban undue influence in solicitation activities . . . or ban sign posting. a. If regulation acts like a prior restraint, court will apply strict scrutiny b. States are restricted from regulation by the 1st amendment as applied through the 14th amendment. c. No right to publish untruthful, illegal, undue influence exerted against vulnerable public (atty solicitation), misleading information to public d. Can ban sign posting if ALL sign posting is banned commercial and non commercial, unless it so limits a persons right to speak (sign in window of house Peace in the Gulf). e. Cannot post signs on government property (medians, utility poles

28.

The level of scrutiny applied to challenges of commercial regulations INTERMEDIATE, least restrictive clause does not apply, must be narrowly tailored in a reasonable manner. The Posadas Principle and the Courts later correction of that principle. a. Posadas the greater power to completely ban an activity (such as gambling) necessarily includes the power to regulate advertising of that activity. b. LiquorMart struck Posadas because it acts as prior restraint; therefore will apply higher level of review (strict scrutiny) must use alternative means, least restrictive means.

29.

30.

The difference between defamation, slander and libel, and how state libel laws may clash with 1st Amendment rights. a. Defamation elements 1. Written or oral statement of FACT (not opinion) made to a 3rd person, i.e., publication to a 3rd party 2. Causes Harm to reputation/business 3. False statement b. Different standards apply to private individual v. public figure/official. There is further a difference as to private individuals whether speaking about a public matter or private matter. Slander defamation made in transitory form (oral) damages are not generally presumed except: 1. Slander per se a. harm to business/profession b. chastity c. crime of moral turpitude d. loathsome disease Libel defamation made in permanent form written, photo, electronic broadcast. Damages are generally presumed. State defamation laws generally set out criteria (elements) for establishing defamation, but these can be challenged under 1st Amendment as unduly limiting freedom of expression.

c.

d. e.

31.

Constitutional guidelines for proving defamation/libel involving a. Public Officials 1. A public official is at the least those among the hierarchy of government employees who have or appear to the public to have substantial responsibility for or control over the conduct of government affairs. 2. NY Times v. Sullivan set a higher standard that public officials must meet to prove defamation. RATIONAL: a. Since public official/figures have access to media they have a greater ability to disseminate a correction and get their view publicized. b. Public officials have limited immunity for statements made while performing their job. Therefore, the public should also have some immunity for criticizing them. c. Public officials/figures put themselves into the public eye. d. Primarily with regard to media defendants, they must have believed the statement was true at the time of publication even if it later turns out to be false. This is the foundation of the actual malice standard, a false statement made with reckless disregard as to whether it was false.

3. 4. 5. b.

Reckless disregard is a high degree of awareness of probable falsity or has entertained serious doubts as to the truth of the publication. The public official must provide clear & convincing evidence that the standards of actual malice are present. Anything that might touch on an officials fitness for office is relevant & the NY Times standard applies.

Public Figures 1. Do not hold public office at the moment but are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large. 2. NY Times standard applies. Private Individual speaking on Matter of Public Concern 1. All discussion & communication involves public or general concern 2. Follow state defamation laws 3. In order to recover either compensatory or punitive damages a. Follow state law & prove the actual damages OR b. Show that actual malice (per NY Times standard) occurred & then may get presumed (actual) damages & punitive damages Private Individual speaking on Private Concern 1. Prove elements of defamation in accordance with state law 2. State standard must not be lower than having to prove negligence anything less would have a chilling effect on speech. 3. May recover presumed & punitive damages 4. Do not have to prove actual malice

c.

d.

32.

The attempts to use other legal theories to circumvent those in #31. 1. Intentional Infliction of Emotional Distress when public official/figure is involved, you must show actual malice, regardless of what you call the tort The courts rationale in setting constitutional guidelines for challenges listed in #31 (set out in #31.) The burden of proof in defamation/libel cases There is no common law presumption that defamatory speech is false. Plaintiff must show that statements are false and, where appropriate, prove the elements of actual malice. Telling the difference between fact and opinion in defamation/libel cases. There is no wholesale defamation exemption for anything that might be labeled as an opinion. Just because you say it is your opinion, if it is stated in such a way as to be taken as a fact, then it will be a fact. The extent to which a state can protect privacy interests when they clash with 1st Amendment rights. a. State may not impose sanctions on the accurate publication of the name of a rape victim obtained from public records. b. Statutes attempting to protect victims names must be narrowly tailored to meet a compelling state interest. c. Right of publicity rationale for protecting the right of publicity is the straightforward one of preventing unjust enrichment by theft of good will showing a small clip is okay, but not the entire show without permission. The meaning of right of association and the extent to which the constitution protects this right a. There is no express right of association in the constitution

33. 34.

35.

36.

37.

b. c.

Derived from the due process guarantees and the 1st amendment (association is a form of expression) Business & professional associations have a lower level of protection under the constitution that intimate associations which enjoy a higher level of protection. 1. How large is the group 2. Degree of selectivity in decisions to begin/maintain association 3. Exclusivity in making decisions seclusion from others Production of membership lists 1. Permitted only when government interest outweighs right of association 2. Dampens membership initiatives Congress: 1. May investigate in an area where they may legislate or appropriate funds limits scope of Congressional investigation. 2. Must be a substantial nexus between area of legislation/appropriation & area of investigation. 3. Has to be a timely investigation Admission to Bar 1. May not require membership/association disclosure unless it has bearing on fitness for practicing law. Organization may not be held liable for members actions unless the organization actually or apparently authorized it or later ratifies the action. Loyalty Oath upheld as long it is basically an affirmation by the employee to abide by/uphold the constitution. Can be in 2 forms: 1. Affirm, abide by & support the Constitution of the US 2. Oppose overthow of government by illegal means

d.

e.

f.

g. h.

38.

The extent to which states can restrict the speech of government employees a. Can be regulated 1. Whether speech that is involved is a matter of public concern a. private concern can discharge b. public concern subject to strict scrutiny 2. Can control some internal communication but not speech of public concern (political speech) Requiring party affiliation for government employment . . . allowed? a. Patronage Dismissal political party affiliation 1. Constitutional for certain employees a. policy making employee b. high ranking c. confidential 2. Important to effective administration of the office The result when a states compelling interests burdens the right of expressive association strict scrutiny Constitutional guidelines for designating primary voters and selecting candidates to represent political parties.

39.

40. 41.

a. b. c. d. e.

Open all members of that party can vote on people running in that party AND all independents can also vote for people running in that party. Closed only registered members of party can vote and can only vote for people running to be candidate for that party. Blanket all voters can vote for whomever has been held to violate freedom of association because the purpose was really to weaken the party. States should have right to regulate primaries & voting in their state but cannot do that at the expense of right of association & freedom of speech. Anti-fusion law prohibits a person from appearing on more than 1 ballot a. Fusion is a was for voters to express political leanings on certain issues b. Upheld anti-fusion 1. Maintains integrity of ballot 2. Stability in political system

42. 43.

Criteria for state funding of expression. When is an associations policy expressive association which is protected by the 1st Amendment. a. Parade Organizer private group cannot be forced include a group adoption of views by association (inclusion in parade). b. Public Accommodation any place that is open to the public 1. Can still have criteria for admission 2. BSA is a public accommodation 3. No federal law protecting from discrimination based on sexual orientation 4. State Supreme Court said it violated state law 5. US Supreme Court reversed 6. BSA stated state law violated freedom of expressive association because it required them to associate with person with opposing view 7. No intimate association involved 8. Once it is identified that association is for expressive activity, the association is protected with regard to the expressive association even it if is not the primary reason for the association. 9. 1st Amendment protects method of expression 10. Does not require that every member agree with the policy within the group 11. State can burden freedom of association but when intrusion into expressive association, state must bear compelling interest in such a burden. The definition of symbolic speech and examples. a. Symbolic speech is a communication of ideas by conduct intermediate scrutiny b. Must have: 1. Communicative element 2. Conduct element c. State has always had control over conduct under its police powers. d. Avoidance of controversy (school & black arm bands) is not a significant governmental interest Constitutional rights do not stop at the school house door e. Removal of books from school library clear that decision was content based therefore cannot remove; however school can select books using similar criteria. f. Flag burning okay; and the Flag Protection Act passed by Congress trying to make it illegal to do so, is unconstitutional extremely content based. g. Destruction of draft cards not okay The OBrien test for symbolic speech challenges. 1. It is within the Constitutional powers of the government 2. It furthers an important or substantial governmental interest 3. Government interest is unrelated to the suppression of free expression (i.e., content neutral); and

44.

45.

4. 46.

The incidental burden on speech is not greater than essential to furtherance of governmental interest narrowly tailored (time, place manner restrictions)

Famous quotation from Texas v. Johnson If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable . . . We have not recognized an exception to this principle even where our flag has been involved.

47.

The balancing of interests in campaign financing cases 1. Balancing act between publics right to express themselves through giving of $$ and governments right to be sure campaigns are run properly 2. Direct contributions to candidate v. independent expenditures on candidates behalf (i.e., commercials). a. More restrictions on direct contributions v. contributions to PACs to promote certain ideas Important distinctions in campaign financing cases: direct contributions to candidate v. independent expenditure on candidates behalf . . . contributions to candidate vs. contributions to political action committees (PACs). a. $$ is speech & limiting money on expenditures is like limiting political speech. However, the compelling state interest of preventing corruption and the appearance of corruption is met by limiting direct contributions to a candidate. Cannot limit contributions to political associations as strictly. Groups for supporting or defeating ballot measures cant limit contributions to these groups. Contributions to a PAC multicandidate PACs contributions can be limited. Expenditures by PAC cannot be limited

48.

b. c. d. 49.

Four issues and answers in Buckley v. Valeo. a. b. c. d. e. Can Congress impose contribution limitations yes Can Congress impose expenditures by candidates themselves relates direct to candidates speech & ability to get his message out no Can Congress impose detailed reporting requirements yes Can Congress limit expenditures by individuals of groups (independent expenditures) no Congress may permit public funding of campaigns as long as selection is made on a reasonable basis currently must have obtained 5% of vote in last election in order to qualify for funding.

50.

Limitations on a business or associations contributions to a candidate. a. Formed to amass capital may not use general treasury funds to contribute to campaigns must have a segregated fund where voluntary contributions may be made. b. c. Formed to promote certain ideas on religious organization may use general funds association to promote a political idea. Okay for political party to spend $$ as long as it is done prior to having elected a candidate this falls outside the Federal Election Campaign Act does not count toward limits.

51.

The rationale behind denying obscenity constitutional protection a. No constitutional protection no redeeming social value

b. c. d. e. f. g. h. 52. 53. 54.

Obscenity is not covered by 1st Amendment or Due Process Clause of 14th Amendment applied to the state. Rejected notion that burden was on state to prove that obscene material is tied to an illegal activity. Obscene material is material which deals with sex in a manner appealing to prurient interest. In order to convict of crime involving obscenity must show scienter knowledge of obscene nature & knowledge that action was against the law. Each court must exercise a de novo review of the allegedly obscene work. Pandering commercial exploitation of erotica solely for sake of their prurient appeal. Can be restricted even if material itself is not obscene. May possess obscene materials in the privacy of home cant transport, cant mail, cant import from foreign country, cant seek out obscene material.

The Five Justice Rule in obscenity cases if 5 justices say it is obscene, then it is obscene. Regulation of obscenity for the protection of juveniles may prohibit sale of material to minors even it materials are not obscene to adults. The Courts view of private possession of obscene materials in the home contrasted with the Courts view of transporting, mailing or importing obscene materials. a. May possess obscene materials in the privacy of home cant transport, cant mail, cant import from foreign country, cant seek out obscene material. Miller v. CA a. Definition 1. Whether the average person, applying contemporary community (local standards) would find that the work taken as a whole, appeals to the prurient interest in the discretion of the jury. 2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, i.e. a. Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. b. Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals 3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (or educational value) The impact of the following arguments in obscenity challenges: consenting adults, least restrictive means, the obscene communications is linked with anti-social acts; secondary effects; land use regulations. a. b. Arguments for defeating a state regulation/law overbroad, vague Zoning 1. May restrict to certain areas by using time, place, manner restrictions 2. Zoning is within the police power of state materials not obscene. The regulations are there for a secondary purpose & serve as time, place, manner restrictions. Will not take stance that the Constitution incorporates the proposition that conduct involving consenting adults only is always. State may regulate behavior between consenting adults. Morally neutral judgment that law is necessary for safety and decency of society under the police power of state. Playboy case lesser restrictive means to control customer (children) access. Customer may request blocking. Requirement of hours or scrambling is unconstitutional.

55.

56.

c.

d. 57.

The definition and constitutional status of Child Pornography

a. b. c. 58.

Illegal always obscene doesnt have to meet Miller standard Totally unprotect behavior Limited to videotape or film does not apply to sexually explicit writings

The legal difference between banning public nudity and prohibiting nude dancing. a. Adult Nude Dancing prohibition must be based on governmental purpose can apply time, place, manner 1. Content based regulation of expressive conduct 2. Narrowly tailored, time/place/manner restriction cant be content based to prevent conveying of message. 3. Furthers secondary effects sexual harassment, prostitution b. Public Indecency 1. Statute is aimed at conduct not at restricting message. 2. Targets all nudity in public places How the prior restraint argument is used where government previews and categories films as being obscene or not obscene. Prior restraint another argument against restricting material censorship burden of proof is put on state. Nothing wrong with censoring/reviewing/previewing to determine if it contains obscenity. Must not be such a lengthy process as to act as a prior restraint on speech.

59.

CHAPTER 11: RELIGION 1. The history and meaning of the religion clauses in the 1st Amendment a. b. c. d. e. 2. Establishment Clause may not establish a state religion should have a personal choice Freedom Clause may not interfere with practice of religion (prevent exercise of personal religion) At the time the Bill of Rights was passed it applied only to the federal government. Some states actually had a state-established religion. Mixture of beliefs in drafters some believed that government could aid religion as long as it aided all equally. Others felt no aid/benefit should be allotted for religions. Freedom of Religion is applied to the states through the due process clause of the 14th amendment.

The Courts general guideline in freedom of religion cases. Neutrality is guiding principle in both establishment & free exercises cases. Government should only act for a secular purpose. The Lemon and Larsen tests in establishment clause cases. a. Lemon Agostini Mitchell: Government aid is provided in equal manner to all religions. 1. Secular Purpose 2. Is primary effect secular 3. If government entanglement excessive b. Larsen Government aid that benefits/burdens on religion over another 1. Strict Scrutiny

3.

4.

Ways the free exercise clause can be violated a. Usually the government is burdening your religion b. Where law prohibits activity only because of religious belief displayed in activity c. Where law prohibits activity only because government wishes to burden a particular religion.

5.

When governmental financial assistance to religious events/institutions/publications is permissible. a. tax exempt state would require too much governmental entanglement to monitor. b. If law is generally applicable it will be upheld even if it has effect of burdening some religious beliefs. The accommodation argument and why it is considered neutral. i.e., state providing interpreter to deaf student at private religious school cannot reasonably be viewed as an attempt by the state to indoctrinate the student. a. Zorach v. Klausen may release students to attend religious classes release time but if students want to go home they can b. Lynch v. Donnelly accommodate all religions & other secular groups and not prefer one over another. Constitutional standards for governmental grants to education. a. Lemon secular purpose, secular effect, no excessive entanglement b. Agostini secular purpose, secular effect entanglement is one of the criteria for determining the effect. c. Principles 1. Generally applicable grant 2. Choice remains up to parent/child 3. Aid went directly to student 4. No distinction between aid to public/private school (evenhandedness) 5. Independent decisionmaker decides where to send $$ In depth analysis of Mitchell v. Helms 1. Whether aid results in governmental indoctrination 2. Whether program defines its recipients by reference to religion 3. Whether aid creates an excessive entanglement between government & religion direct payment of $$ is not forbidden 4. If aid is suitable for public schools it is suitable for private school Applying the two relevant Agostini criteria, we se no basis for concluding that Jefferson Parishs Chapter 2 program has the effect of advancing religion. Chapter 2 does not result in governmental indoctrination, because it determines eligibility for aid neutrally, allocates that aid based on the private choices of the parents of schoolchildren, and does not provide aid that has a an impermissible content. Nor does Chapter 2 define its recipients by reference to religion.

6.

7.

8.

9.

Governments institutionalization of prayer, Bible reading, flag ceremonies, and religious postings, and certain teachings regarding creation. 1. Schemp cant use school as a place to practice religion (mandatory prayer) distinguishes between situations where children are involved v. adults. 2. Marsh may open legislative sessions with prayer okay due to historical reasons being done at time 1st amendment was enacted. 3. Sante Fe School Board public prayer before ballgames violation of Establishment Clause even student led prayer, even if all voted to have prayer Constitution will still prevail. Pregame ceremony wasnt a public forum not private speech. 4. Wallace statute allowed meditation or voluntary prayer stated legislative purpose was religious therefore violated Constitution 5. Barnett May have flag ceremony students must be allowed not to participate or be excused. 6. Graham posting of 10 Commandments alone no secular purpose

7. 8. 10.

Epperson Court cannot prohibit teaching of evolution in public schools purely motivated by religious purpose Edwards cannot require teaching of creation science whenever evolution is taught.

Whether religious speakers or religious displays can be excluded from public forums 1. Lynch xmas displays may contain religious symbols along with others 2. Alleghany Co. religious display on staircase of county courthouse which promoted religion was unconstitutional - no other stuff displayed 3. Pinette KKK cross in public forum 4. If government opens itself up to general public for speech purposes may not exclude religious speakers access to school property. Whether government may decline to publish religious materials when it publishes non-religious materials 1. Rosenberger viewpoint v. content discrimination. Difference in opinions between justices as to purpose of Establishment Clause. 1 religion v. 2 religion; religion v. non-religion school may not deny funding to a religious student publication if it funds other student journals. When government may interfere with or burden religious practices Free Exercise Clause Government may regulate action but may not regulate the religious belief itself. a. Religious practices may be regulated i.e. peyote use b. Secular purpose for regulation applies to everyone c. Laws with exceptions or that allow hearing where exceptions can be made less likely to be generally applicable & court will balance burden on religion. Questions to ask when there is a free exercise challenge a. Principles 1. Not a generally applicable statute then look for a. secular purpose & effect if present, apply rational basis b. significantly impedes certain religious practice and that is its intended purpose or effect strict scrutiny c. are alternative means available that wouldnt create such a burden on religious practices. a. Is law generally applicable (neutral & uniform in its application) rational basis scrutiny 1. apply to everybody not individual assessment 2. no statutory exception or exemptions b. Is challenge based solely on argument that Free Exercise Clause is violated or are other Constitutional values being violated. c. If not generally applicable strict scrutiny will be applied d. Is there another way to achieve purpose without burdening someones religious practice. Whether sincerity of the religious belief affects the outcome of the challenge. Cannot consider truth or falseness of religious belief. Does look at persons sincerity honest conviction doesnt have to be the belief of everyone in the same religion.

11.

12.

13.

14.

15. 16.

The outcome when religious beliefs clash with military requirements. Conscientious objector must object to all war not just a particular war When religious beliefs are contrary to tax requirements, labor requirements, and prison regulations. a. Tax generally strict scrutiny except for procedural requirements such as use of SSN for identification.

b. c. 17.

Labor religious organizations still have to comply with recordkeeping, etc. for Fair Labor Standards Act. Doesnt necessarily have to pay employees in $$ but has to account for value of service. Prison if regulation is generally application reasonable basis scrutiny

When government applies a generally applicable law in a discriminatory manner. A generally applicable law which has only an incidental effect of burdening religion does not offend the Free Exercise Clause. No heightened scrutiny is called for in such a case. However if it is applied in a discriminatory manner, strict scrutiny will be applied.

CHAPTER 12 THE PROCEDUREAL CONTEXT OF CONSTITUTIONAL LITIGATION 1. Must be a case or controversy constitutional requirement a. Mootness b. Ripness Judicial Limitations generally argued by defense counsel a. Standing significant stake in the outcome of the litigation b. Ripeness ready to be heard maximum state of readiness for adjudication 1. show that you are likely to suffer damage (threatened with arrest 2 times) c. Mootness decision made by the court would be meaningless controversy no longer exists. 1. Capable of repetition yet evading review i.e. abortion cases, denial of admission to school based on discriminatory reasons. 2. Class Action representatives actual case may have become moor but representative may remain as representative of class 3.** Collateral Consequences if plaintiff is prevailing party school system has to pay attorney fees. Atty fees are awarded by statute therefore case must be decided for allocation of fees even if underlying case is moor. Court can refuse to hear case because: a. Abstention concerns unsettled state law, then Federal Court will seek to abstain until after state law issue is settled by State Supreme Court Federal & State issues are entangled. b. Independent and Adequate State Grounds if issue rests in state law w/o federal law entanglement. Issues can be decided on state law issues only. c. Advisory Opinion no real controversy or issue merely seeking advisory opinion. Cannot be done in Federal Court. Federal Circuit Court Justices may certify questions to Supreme Court & get advisory opinion. d. Political Question non-justiciable should be decided by another branch of government. Taxpayer Standing have standing when suing as taxpayer. Actually injured by government act or a sufficient enough nexus (direct connection) to have substantial personal stake in outcome. Almost impossible to challenge government spending act. Non-Taxpayer Standing person stake in outcome & that injury is distinct from everyone elses, injury is palpable, causal connection between government action & injury sustained.

2.

3.

4.

5.