Barbri Outline - MBE-NY (2005) - Constitutional Law

7/23/2019 Barbri Outline - MBE-NY (2005) - Constitutional Law

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CONSTITUTIONALLAW (33 QS)

I. Judicial Power Article III (15% of questions)

A. Requirement for Cae and Contro!erie Justiciability Doctrine". Standing whether the plaintiff is the proper party to bring the matter to the court for adjudication

a. Injury: P must allege & prove that he has been injured or imminently will be injured#i$ Types of injuries

(a) violation of common-law ri!ts; (c) constitutional ri!ts;

(b) statutory ri!ts; (d) any ot!er !arm court finds substantial including aest!etic or environmental#ii$ P only may assert injures that hepersonally suffere"#iii$ P see!ing injunctive or declaratory relief must show a li#eli!oo" of future !arm monetary interests are the

strongest form of injury

"#P: #f $ as!s which has the best standing loo! to a P who has personally suffered an injury% "hen choose the onewho has suffered an enonomicmonetary loss%

%. $ausation &e"ressability P must allege & prove that ' caused the injury so that a favorable court decision is li!ely

to redress the injury ('a"visory opinions)c. * +r"party stan"in P cannot assert claims of others (*rdparties) who are not before the court

+,+P"#.:

(a) $lose relations!ipbetween P & the injured *rdparty (e%g% abortion cases brought by doctors on behalf of their

patients)(b) #njured *rdparty is unli#ely to be able to assert !is own ri!ts (e%g% criminal '/s can raise the rights of

prospective juror in racial discrimination claim during jury selection)(c) 'Associational stan"in an organi0ation may sue for its members provided

- 1embers would have standing to sue- #nterests are germane to the organi0ation/s purpose

- either the claim nor relief re2uires participation of individual membersd. * enerali,e" rievances - P must not be suing solely as a citi0en or as a ta3payer interested in having the

government follow the law (e%g% sued to disclose #4 budget no standing bc suing only as a citi0en)"#P: +3am will say 5P is suing as a ta3payer6#i$ +,+P"# ta3payers have standing to challenge government e3penditures as violating the +stablishment

lause#ii$ 78" ta3payers lac! standing to challenge government granting ofpropertyto religious institutions parochial

schools&. Ri'ene can you get declaratory judgment that a law is unconstitutional9 pre-enforcement review of a statute or

regulation9"#P: #f $ tal!s about declaratory judgement this is li!ely a ripeness issue%a. .ar"s!ip will be suffere" wit!out pre/enforcement review: the greater the hardship the more li!ely the court will allow

declaratory judgment%. Fitness of the issues & the record for judicial review does the fed court have all it needs to decide the issue or

should it wait for more factual development9 #s anything to be gained by waiting for an actual prosecution9(. )ootne must be an ongoing injury (if events after the filing of the lawsuit end P/s injury it/s moot)

+,+P"#.:

#i$ 0ron capable of repetition but eva"in review e%g% an abortion case was decided after P had her abortion because

P could see! an abortion in the future (oe v ade)#ii$ oluntary cessationof offending practice but ' is legally free to resume it at any time#iii$ $lass action suitswon/t be dismissed as long as < member of the class has an ongoing injury

*. Political +uetion ,octrine refers to allegations of constitutional violations that the federal courts (and level) will not

adjudicate (matters left to political branch or inherently incapable of judicial resolution); e%g%:a. $ases un"er t!e 'republican form of overnment clause%. $!allenes to t!e 2resi"ent3s con"uct of forein policyc. $!allenes to t!e impeac!ment removal processd. $!allenes to partisan erryman"erin

-. Su'reme Court Re!iew

". 4ppellate =urisdictiona. rit of ertiorari all cases from (i) state courts & (ii) 8%.% federal court of appeals% > justices must agree to grant

ertiorari in order for the case to be heard (completely discretionary)%. 4ppeal for decisions of *-judge federal district courts (appeals s!ip the 8%.% federal court of appeals)% .upreme ourt

is obligated to ta!e the case%c. "he .upreme ourt has original and e3clusive jurisdiction for suits between state governments%

Constitutional Law "


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&. riginal =urisdiction suits between states & cases involving ambassadors(. +3clusive jurisdiction suits between states*. ?inal =udgment ule - interlocutory reviewby .upreme ourt may hear cases only after there has been a final

judgment%. ?or .upreme ourt to review a state court decision there must " be an in"epen"ent a"equate state law roun" of

"ecision .upreme ourt will not hear a case only if the independent state ground is ade2uate by itself to support the

decision so that .upreme ourt/s review on federal ground for the decision would have no effect on the outcome of thecase%

"#P: odney @ing sues in state court state law battery claim and federal law civil rights claim and each claim will result inthe same amount of damages% P wins% ' sues all the way up to .upreme ourt% o good because same judgment would

occur from the state law ground even if the federal ground was overturned%

C. Lower /ederal Court Re!iew

". Federal courts may not hear suits against state governments(


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". Deleation of leislative powers limit e3ists on ongress/ ability to delegate legislative power to e3ecutive agencies or

even to the judiciary (clear criteria & intelligible principles must be provided)%

"#P: n e3am if $ says fed law is unconstitutional it will never be because of delegation of legislative powers%&. ;eislative vetoes ;ine/item vetoes are -L 2uestions on 74)

Constitutional Law (


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". =7press preemption if federal law is e3clusive in a field state & local law deemed preempted&. ,mlied reemtion even if te3t of federal law is silent implied preemption in * ways:

a. #f federal & state law are mutually e7clusive fed law preempts state law can/t comply with both state & federal lawthe fed law wins

+ +,+P"# states can estalish environmental (or health and safety) regulations stricter than federal

law unless Congress clearly forids it.

%. #f state law impe"esthe achievement of afe"eral objective fed law preempts state lawc. #f ongress evidences a clear intent to preempt state law fed law preempts state (i%e% #mmigration Faw any attempt by

a state of local gov/t to regulate immigration is preempted))(. 4tates may not ta7 or reulate fe"eral overnment activity

a. 5#nter-governmental immunities6 means that the fed government is immune to unwanted state ta3ation%. Uncontitutional to 'a4 a tate ta5 out of t6e fed treaur4

c. .tates can/t regulate federal government if this places a significant burden on fed activity (i%e% ?ed gov/t never has to

comply with state pollution laws)

-. /ull /ait6 2 Credit courts in one state must give full faith & credit to another state court judgments so long as:". ourt that rendered the judgment !a" juris"iction over the parties and the subject matter&. =udgment was on the merits(. =udgment isfinal

C. T6e ,ormant Commerce Claue and t6e Pri!ile0e 2 Immunitie Claue of Article I7 (K or * $s)". 'efinitions:

a. -ormant Commerce Clause(D$$) principle that statelocal laws are unconstitutional if they place an undue burden

on interstate commerce (negative implication of ommerce lause)%. "rivileges & ,mmunities Clause of %rticle ,(2I$) 5no state shall deprive citi0ens of other states the privilege &

immunities it accords its own citi0ens6 (anti-discrimination against out-of-staters)c. 2rivilees Immunities $lause of t!e 1t!Amen"ment always a wrong answer choice 8F+.. the 2uestion involves

the ri!t to travel&. %/%L0S,S- Does t!e state or local law "iscriminate aainst out/of/staters9

a. Faw does " discriminate:#i$ 2I$ " applicable#ii$ ' balancing test: if t!e law bur"ens interstate commerce it violates the ' if its bur"ens e7cee" its benefits

(even if the law doesn/t discriminate it can be stric!en down as being too burdensome)%. Faw discriminates against out-of-staters:

#i$ ' violation if the law urdens interstate commerce

(a) 8F+.. it/s necessary to ac!ieve an important overnment purpose

(b) .trong presumption against burdensome state law; helping in-staters is +A+ an important governmentpurposes; no less discriminatory alternative could achieve its important gov/t objective

(c) +3ceptions

- $onressional approval- ?ar#et participant e7ception(statelocal government may prefer its own citi0ens in receiving benefits

from government programs or in dealing with government-owned businesses)% +3amples:

- .tate 8niversities in I can charge less tuition to I residents bc regarded as gov/t benefit program

- ement factory owned by state charged less to in-state purchasers o! bc state is mar!et participant#ii$ P# violation if the law discriminates against out-of-staters with regard (a) imortant economic activities ( aility

to earn a livelihood)!or (b) civil liberties

+3amples: "o be admitted to J bar you had to be a resident of J A#F4"# ? P#

?or a license related to wor! in-stater paid a small fee while out-of-stater paid a large fee A#F4"# ? P#?or a license related to hobby in-stater paid a small fee while out-of-stater paid a large fee "J#. #. @

(a) 8F+.. it/s necessary to ac!ieve an important overnment purpose:

(b) orporations & aliens cannot use the privileges & immunities clause (only ' could apply)(c) o less discriminatory means to achieve that purpose

(. omparison of the ' & the Privileges & #mmunities lause of 4rticle #A:

D$$@ 2rivilees Immunities $lause@

ot re2uire discrimination against out-of-staters in

order to apply

e2uires burden on interstate commerce

orporations & aliens can sue under it

+,+P"#.:

(i) ongressional approval

(ii) mar!et participant e3ception

e2uires discrimination against out-of-states in

order to apply

e2uires discrimination with regard to (i) civil

liberties or (ii) important economic activities

orporations & aliens can " sue under it

e3ceptions

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,. State Ta5ation of Intertate Commerce #RAR1L8 R1ST1,$". on-discriminatory state ta3 re2uirements

a. 4ubstantial ne7usto the state. 6air apportionmentc. )a4 NOT ue ta5 4tem to hel instate usiness

&. "ypes of ta3esa.


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(b) "he private party must be bound by the onstitution#ii$ onsider C e3amples

(a) ourts can/t enforce racially restrictive covenants(b) .tate action when government leases premises to a restaurant that racially discriminates

(c) .tate action when government gives free boo!s to private schools that racially discriminate

(d) state action when a private school almost totally subsidi0ed by government (BBE funded) fired a teacher

because of her speech (overnment subsi"y insufficient for a fin"in of state action)% Novt subsidy isinsufficient for finding a state action%

(e) state action when the 44 suspended a bas!etball coach in a state school because the 44 is a privateorgani0ation so it doesn/t have to comply with the constitution%

(f) .tate action when a private entity regulates the state/s interscholastic sports this was an intertwinement withgovernment because most of the schools were public (it/s different from the 44 case because 44

impacts all states while the organi0ation in this case regulated only "ennessee/s sports)

(g) state action when private club with state li2uor license discriminated based on race

-. A''lication of t6e -ill of Ri06t

". 7ill of ights applies directly only to t!e fe"eral overnment 78" it/s applied to statelocal governments through its

incorporation into t!e "ue process clause of t!e 1 t!Amen"ment&. 4elective in/corporationists thin! only some apply to the states(. Total in/corporationiststhin! that 4FF of the 7ill of ights applies to the statelocal governments this doctrine won the

debate 78" the following ,O NOTapply to the states:a. Knd4mendment right to bear arms (states can adopt any type of gun control they want)%.

*

rd

4mendment right to not have soldiers 2uartered%c. Hth4mendment right to grand jury indictment in criminal casesd. Cth4mendment right to jury trial in civil casese. Mth4mendment right to e3cessive fines

C. Le!el of Scrutin4

". 1ational asis test a law is upheld if it/s 5rationally relate" to a legitimateovernment purpose6 hallenger has theburden of proof% Novt usually wins

&. ,ntermediate scrutiny a law is upheld if it/s 5sustantially relate" to an imortantovernment purpose6 "he 1eans

must be narrowly tailored but the best way is not re2uired% Nov/t has burden of proof law is substantially related to

achieving an important gov/t purpose%(. Strict scrutiny a law is upheld if it/s 5necessary to ac!ieve a comelling overnment purpose6 1ust be least restrictive

alternative (the best way)% "he gov/t usually loses%

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#ii$ '4!oc#s t!e conscience in emergency situations the government is liable under due process only if the conduct

shoc!s the conduct (rec!less high speed chase by police not a violation of due process must shoc!)c. 4overnment's failure to rotect eole from rivately inflicted harmsdoe NOT den4 due 'roce the government m

literally create the danger in order for a duty to e3ist (hild beaten by father is not violation of due process by .ocial

.ervices)&. hat procedures are re2uired9- alancing test

a. Importance of interest to t!e in"ivi"ual the more important the more procedure re2uired;%. Ability of a""itional proce"ures to increase t!e accuracy of t!e fact/fin"in; and

c. Novernment interest ina"ministrative efficiency(. +3amplesa. "ypes

Interests *TI$=*22T T*

=E2;AI

.=A&IC

2rior 4ubsequent

#nstitutionali0ation (adult) Ies - Ies -

(child) 2rior screenin by 'neutral factfin"er6

elfare benefits Ies - Ies

'isability benefits Ies Ies - Ies

Public employment Ies Ies - Ies

Public education (disciplinary) Ies Ies - -

"ermination of child custody Ies - Ies -

ivil ?orfeitures Ies - Ies (real P) Ies (personal P)

%. ther +3amples:#i$ Punitive damages re2uire instructions to the jury & judicial review to ensure reasonableness#ii$ 4merican citi0en held as enemy combatant in another country is afforded due process%#iii$ Pre-judgment attachment & government sei0ure of assets re2uires notice & a hearing e3cept in e3igent circumstanc

'ue Process does not re2uire an innocent owner defense to government sei0ure%

-. Su%tanti!e ,ue Proce

". 'efinition whether government has ade2uate reason for ta!ing away an individual/s life liberty or property&. onstitutional .ource

a. th4mendment applies only to state9local overnments +A+ to federal%. +2ual protection is applied to the fed government through the Hth4mendment

(. +conomic lierties onstitution provides only minimal protection for economic libertiesa. &ational basis test used for laws affecting economic rights (e%g% minimum wage other regulations state law

regulating trades or professions consumer protection laws)%. *aings clause(separate test) government may ta!e private property for public use but must provide just

compensation#i$ Is t!ere a taing9

(a) 2ossessory ta#in government confiscation or physical occupation of property is a ta!ing regardless of si0e

or amount (< cubic foot for a cable bo3 is a ta!ing)

(b) 1egulatory taing government regulation is a ta!ing if it leaves no reasonable economically viable use of the

property- ot enough to show merely a "ecrease in t!e value of the property

- "+: apply rational basis PF8. the 'rou!ly proportionate test

O Novernment conditions on development must be justified by a enefit to the government that is

roughly roortionate to the urden imosed otherwise it/s a ta!ing%O 4 property owner may bring a ta!ings challenge to regulations that e3isted at the time the property

was ac2uiredO "emporarily denying an owner use of property is not a ta!ing so long as the government/s action is

reasonable (moratoriums)#ii$ Is it forulic use

(a) #f not the government must give property bac!

(b) 78"public usedefined %roadl4as anything government reaona%le %elie!ethe ta!ing will benefit public#iii$Isjust comensationpai"

(a) 1easured in terms of the loss to the owner (i%e% reasonable mar!et value)

(b) Nain to the ta!er is irrelevantc. Contracts clause 5o state shall impair the obligations of contracts6

#i$ Prohibits states from enacting any law that retroactivelyimpairs contract rights

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a. lassification e3ists on t!e face of t!e law; %. #f the law isfacially neutral proving a racial classification re2uires demonstrating both (i) "iscriminatory impact& (ii)

"iscriminatory intent&. &acial classifications benefitin minorities - strict scrutiny is applied

a. umerical set-asides (i%e% 2uotas) re2uire clear proof of past "iscrimination8 (&arely allowe" - only up!el" once by

4upreme $ourt - =very time a w!ite person was !ire"> a blac# person !a" to be !ire" - t!is was *F)%. +ducational institutions may use race as one factor amon many in a"missions to help minorities% Jowever they cannot

set-aside slots or add points to admission scores solely based on race%

c. 4eniority systems (5last hired first fired6) may not be disrupted for affirmative actionC. 9ender Claification intermediate level of scrutinyis used must be e3ceedingly persuasive justification%

". Proving gender classificationa. lassification e3ists on t!e face of t!e law%. #f the law isfacially neutral proving gender classification re2uired demonstrating both (i) "iscriminatory impact& (ii)

"iscriminatory intentc. Preemptory challenges based on gender violate e2ual protection%

6. Cen"er classifications benefitin womena. Nender classifications benefiting women that are based on role stereotypesis " be allowed (i%e% woman always gets

survivor benefits but men only if they need it 8."#"8"#4F)%. Nender classifications "esine" to reme"y past "iscrimination "ifferences in opportunityis allowed

,. Aliena0e Claification favorite area (


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*. &i!t to e"ucation " a fundamental right

#. :hat is the classification;

(a) lassification is on theface of t!e law; (b) #f law is facially neutral there is both (i) "iscriminatory intent 4' (ii) "iscriminatory impact

6. :hat is the level of scrutiny;

.trict .crutiny: #ntermediate .crutiny: ational 7asis "est:

;aw must be necessaryto ac!ieve acomellingovernment purpose

;aw must besustantiallyrelate" to

an imortantovernment purpose

;aw must be rationallyrelate" to alegitimateovernment interest

ace

ational origin

4lienage (generally)

"ravel (but not foreign travel)

Aoting

Nender

Fegitimacy

8ndocumented alien children

4lienage classifications related to self-

government & the democratic process

ongressional regulation of aliens

4ge Jandicap ealth

4ll other classifications

3. -oes the law meet the level of scrutiny only if there is an important reason for licensing & clear criteria leaving

almost no discretion to the licensing authority licensing schemes must contain procedural safeguards such as prompt

determination of re2uests for licenses & judicial review(. agueness & overreadth:a. aueness a law is unconstitutionally vague if not give reasonable noticeof what is prohibited%. *verbrea"t! a law is unconstitutionally overbroad if it regulatessubstantially more speec!than is necessaryc. 6ighting words(li!ely to provo!e a violent response) laws are unconstitutionally vague & overbroad% JIP:

4ppealing victim and nasty spea!er 4nswer is always that law prohibiting fighting words is unconstitutional%*. 4ymbolic speec! the government can regulate conduct that communicates #? (i) it has an important interest unrelated to

suppression of the message & (ii) the impact on communication is no greater than necessary to achieve the government/spurpose

. Anonymous speec!is protected protect right not to spea!

-. W6at S'eec6 i Un'rotected or Le Protected %4 t6e /irt Amendment

". Incitement of illeal activity government may punish speech if: (i) there/s a substantial li!elihood of imminent illegality

4' (ii) the speech is directed at causing the imminent illegality&. 8scenity & seuallyoriented Seech:

a. bscenity "est#i$ aeal to the rurient interest (a 5shameful or morbid interest in se36) local community standard;#ii$ atently offensive under the law rohiiting oscenity local community standard; 4'#iii$ lac serious redeeming artistic! literary! olitical or scientific value national standard

%. Gonin 2ermissible government may use 0oning ordinances to regulate the location of adult boo!stores & movie

theaters (+rogenous oning is permissible)

Constitutional Law "B

$onstitutionally protecte"@ $onstitutionally *T protecte"@

?lag burning

7urning of cross (unless there is intent to threaten)

ontribution limits for election campaigns

'raft card burning

ude dancing

+3penditure limitations


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c. $!il" pornorap!y can be completely banned even if not obscene8 "o be child pornography it must be children not

adults that loo! li!e children or computer generated images)d. Punish private possession of obscene materials " allowed 78" may punish private possession of child

pornographye. Novernment maysei,e t!e assets of businesses convicte" of violatinobscenity lawsf. 2rofane in"ecent speec! generally protected by the


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%. on-public forums include:#i$ military bases#ii$ areas outside prisons & jails#iii$ advertising space on city buses(iv) sidewals on ost office roerty

#!$ airports may prohibit money solicitation; can " prohibit distribution of literature (fails rational basis review)*. "rivate roerty


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CONSTITUTIONALLAW 1SSA8+U1STIONS

I. +U1STION

Barbri Outline - MBE-NY (2005) - Constitutional Law

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