california bar exam outline - constitutional law

California Bar Exam Outline - Constitutional Law

This is an outline which I created as part of my preparations for the July 2000 California Bar Exam. I started with the outline of subjects covered on the MBE exam provided by the National Conference of Bar Examiners. To that outline I added the additional topics tested on the California Bar Exam. I then filled in the substantive information for those categories from the following sources:
  • PMBR lecture tapes (24 tapes covering torts, K, property, con law, crim law, and evidence).
  • BarBri "Early Bird" lectures covering K, evidence, crim law, crim pro, con law, civ pro, bus org, community property, and property.
  • PMBR Multistate Workbook Volume 1 Outlines (torts, K, property, crim law, crim pro, evidence, con law)
  • PMBR Multistate Workbook Volume 1 MBE answers
  • PMBR Multistate Flashcards
  • Strategies and Tactics for the MBE, by Emanuel
  • PMBR 6-day lecture and �Early-Bird� Workbook (MBE answers and Multistate Issue Graphs)
Once I started the BarBri lectures, I stopped using this outline, and instead studied from flashcards (made in part from this outline), and checklists. Therefore, this outline does not contain any substantive information from BarBri, and any additions or corrections that I would have made using the BarBri information. You should not rely on this outline as an authoritative primary source.

  1. Constitutional Law

  1. Exam approach

  1. Boil down outline to a list of government powers to determine best way to uphold a challenged statute.
  2. Dealing with an issue on the basis of a procedural defect has priority over dealing with it on the basis of a substantive defect (i.e. on the merits).
  3. "Privilege, not a right" is always a wrong answer on procedural due process questions: There is no distinction.
  4. If it is a state action, include the 14th Amendment (i.e. "1st and 14th" not just "1st") because it is a narrower answer.

  1. Powers of the Federal Judiciary

  1. Organization

  1. A3 vests judicial authority in the (one - indivisible) Supreme Court, and inferior courts as Congress may establish. Lifetime tenure and salary protection

  1. Congress has plenary power to create, destroy, and regulate the lower federal courts.
A1 courts consists of administrative, legislative, military, D.C. and bankruptcy courts. No lifetime tenure.Jurisdiction (A3)

  1. Original jurisdiction

  1. Case involving an ambassador, public minister, or consul, and those in which a state is a party. Congress can�t enlarge or restrict, but can give concurrent jurisdiction to lower federal courts.
  2. Supreme court has exclusive jurisdiction over cases between 2 or more states.
Judicial Review
SC may determine the constitutionality of acts of other branches of governments (Marbury v. Madison). Federal courts may review state court decisions and statutes for constitutionality.Appellate
Congress has the power to regulate the appellate jurisdiction of the SC, but not eliminate any class of jurisdiction.

  1. Cases arising under federal law
  2. Cases between citizens of different states (diversity)
  3. Cases in which the US (or an officer in his official capacity) is a party
  4. Cases between a state (or its officers in official capacity) and citizens of another state (subject to 11th Amendment).
Appeal (mandatory review): Very few cases fall into this category - only applies to a decision of three-judge federal district court regarding injunctive relief. All other cases are appealed to the SC by certiorary

  1. Discretionary: Requires 4 justices to accept case.
  2. Cases from state courts (after final decision by highest court of the state regarding constitutionality or violation of federal law)
  3. Cases from US Courts of Appeals
Limitations on jurisdiction: Justiciability

  1. Case or controversy requirement
Actual and definite dispute between parties having adverse legal interests. Prohibits advisory opinions. Courts may not regulate inter-church disputes: No case or controversy present.Standing

  1. Injury: p has been or will be directly and imminently injured from the conduct being complained of.

  1. Types of injuries (economic injury is best choice on MBE): Violation of common law rights, constitutional rights, statutory rights, any other harms that court regards as sufficiently important, including aesthetic or environmental injury.
Third-party standing ("jus tertii")

  1. p may generally only assert personally suffered injuries (may be a problem for TP�s asserting standing).
  2. TP may assert standing when:

  1. p otherwise has standing;
  2. Close and special relationship between p and TP (doctor/patient, school/student, bartender/customer); and
  3. Special need to adjudicate exists (TP can�t adequately protect their own interest).

  1. Examples: Doctor raises issue of abortion for patient (but not based on his professional right to practice medicine), or school for students, labor union for members, criminal D can raise rights of prospective jurors against discriminatory preemptory challenges.
  2. p seeking injunctive or declaratory relief must show likelihood of future harm.
Association standing
One or more members would otherwise have standing; Interest asserted is germane to association�s purpose; and Neither the claim asserted nor relief requested would require participation by the individual members in the lawsuit.Causation and redressability: D actually caused injury such that favorable court decision would remedy the injury.

  1. Injury must be fairly traceable to D �s conduct.
  2. Federal courts don�t give advisory opinions, but state courts can.
Generalized grievances / Taxpayer standing: If p is suing solely as a citizen or taxpayer interested in making the government follow the law or not spend money in a particular way, and no other p injury exists, then case is usually denied.

  1. Taxpayer has standing to contest spending measure when p is harmed, expenditure exceeds a specific constitutional limitation on the spending power, and is a part of a federal spending program (almost always an expenditure which violates the Establishment Clause by giving financial aid to parochial schools � not an exercise of another of congress� powers such as giving away property, which taxpayer has no standing to object to).
Legislator has standing if they have a sufficient personal stake in the dispute, and suffer sufficient concrete injury. Congress cannot legislatively confer standing on a person who otherwise lacks it.Ripeness
Court may not grant pre-enforcement review of a law (because future events will sharpen and define the COA), unless genuine and immediate threat of hardship exists. Difference from mootness: Mootness bars considerations of resolved claims; ripeness bars consideration of claims before they have fully developed.Mootness
Actual controversy must exist at all stages of review. If events after filing of lawsuit end p �s injury, case dismissed as moot. Exceptions:

  1. Collateral legal consequences from prior ruling exist.

  1. Criminal conviction is not moot even though sentence has been served. Collateral consequences: Impeachment in judicial proceeding, application for employment.

  1. Injury is capable of repetition, yet evading review. Example: Abortion, where p is no longer pregnant when case is heard, or an election matter where matter would ordinarily be decided only after election had been held.
  2. Voluntary cessation of harm by D , but is free to resume it at any time. Example: Racial discrimination by employer who voluntarily agrees to quit practice. But settlement would make case moot.
  3. Class action suits: Case will not be dismissed so long as one member of the class (not necessarily a named p ) still has injury.
Abstention doctrine (aka �Final Judgment Rule�)

  1. Federal court will abstain from hearing the case which is pending before a state court until the matter is settled in the state court. Federal court will retain jurisdiction of the federal claim.
  2. [???] The matter has to involve the constitutionality of a state or local law, and the issue rests upon an unsettled question of state law.
  3. Exception: Courts may choose not to abstain where time is of the essence, or fundamental right is at issue.
  4. Comity doctrine: Applies abstention to criminal cases. Also applies to civil proceedings "akin" to a criminal case, child custody, perjury, closure of porno theater as public nuisance.
Nonjusticiable political questions
Courts will not adjudicate issues constitutionally committed to executive or legislature:

  1. �Republican form of government� guarantee clause. Example: Challenge to initiative process (direct democracy) violates guarantee of government by representation � courts will not adjudicate. But legislative apportionment can be reviewed, and court can compel state to re-apportion districts.
  2. Viability of constitutional amendment. Court cannot determine duration of time for state to ratify amendment or other amendment processes. That is congress� job.
  3. Foreign affairs (i.e. treaties) and policy is reserved for congress and president (Vietnam war) and cannot be challenged by private person or company. Congress and president has exclusive control over the military organization, arming or discipline. Exception: If executive agreement relates to economic matters, then the case can be decided.
  4. Challenges to impeachment and removal process (Nixon v. US).
  5. Court cannot determine age, residency and citizenship requirements for members of congress � only congress can do that.
  6. Interpretation of church doctrine

  1. Textually demonstrable constitutional commitment of the issue to another branch
  2. Lack of judicially discoverable and manageable standards for resolution
  3. Impossibility of deciding without an initial policy determination that is clearly for nonjudicial discretion
  4. Impossibility of court�s undertaking independent resoltution without expressing lack of respect to other branches
  5. Unusual need for unquestioning adherence to existing political decision
  6. Potential of embarrassment from multiple pronouncements by various branches on one question
Adequate & independent state grounds
Although a state court decision involves a federal question or satisfies diversity, if the state court judgment can be supported on an adequate and independent state ground (i.e. ultimate outcome would not be altered, even if determination of federal issue was reversed), SC will not take jurisdiction, because that would be equivalent to rendering an advisory opinion. SC will refuse to review state court decisions in which federal question was not raised in a proper and timely manner, unless state procedural rule was not supported by any legitimate basis, or state court did not act in good faith in applying the procedural rules (it attempted to preclude assertion of federal claim).11th Amendment / Sovereign immunity
States cannot be sued in federal or state courts without consent of the state. Excpetions:

  1. Authorization by Congress under 14th Amendment �5 (civil rights laws).
  2. Suits against state officers for federal law violations
  3. Suits against local governments
  4. US v. State
Powers of Congress

  1. Doctrine of enumerated powers

  1. Federal government has only that authority that the Constitution expressly or impliedly gives it. All other powers retained by states through 10th Amendment, which is where state finds its police powers (health, safety, welfare, morals or aesthetics).
  2. Federal government has no general police powers, except Military, Indian reservations, federal Lands, and District of Columbia (MILD).
Can�t take away citizenship without citizen�s express or implied consent. Congress can set grounds for deporting resident aliens, but must give notice and hearing prior to deportation. Any grounds for exclusion and deportation of illegal aliens.Commerce Clause
When in doubt, choose the commerce clause. Congress can regulate the channels, instrumentalities, activities and persons or things in commerce between foreign nations, among Indian tribes, and across state lines. The federal government can burden interstate commerce all they want to � no prohibition.  Cumulative impact doctrine: Even an entirely intrastate activity which has a cumulative impact on interstate commerce may be regulated.  Affectation doctrine: Any activity, even if entirely intrastate, which in the aggregate has a substantial economic effect on the stream of economic commerce may be regulated under the commerce clause. Congress can also regulate for clearly non-commercial reasons, such as social welfare, health, civil rights in conjunction with enabling clauses of 13th, 14th and 15th amendments (i.e. Heart of Atlanta Motel, where incidentials such as food travel through interstate commerce).Taxing
Tax is valid if:

  1. Subject matter is permissible basis of congressional regulation;
  2. Tax is intended to raise revenue; or
  3. Tax results in raising revenue.
Direct taxes (property, income) must be apportioned; indirect taxes (sales, use and excise tax) must be geographically uniform. No export tax on goods exported from any state, bound for a foreign country. Taxation is not evaluated under equal protection, commerce clause or right to privacy, therefore a tax which is valid under the above test can hamper access to birth control, etc. and still be valid.Spending
Purpose must serve general welfare. Regulation by spending: Congress can attach strings to money, but the strings must be reasonable, within the powers of congress, and unambiguous. Even if the strings wouldn�t be proper legislation. Examples: Taking federal election funds limits amounts a candidate can get externally. Congress can mandate that the president spend specifically appropriated funds in a specific way, and the president cannot refuse.Necessary & Proper clause
Gives Congress implied powers to use any reasonable nonprohibited means necessary and proper to execute enumerated powers.  Investigation: Power to subpoena (with power of contempt) and conduct inquiries, free of judicial restraint (Speech and Debate clause), but subject to freedom of privacy and privileges against testifying.War and defense
Declare war Raise (draft & selective service) and support troops Organize, arm, discipline and call forth the militia Control civilian economy during wartime and after the war to remedy conditions directly and substantially flowing from the war. Establish military courts, which follows the Uniform Code of Military Justice and isn�t subject to judicial review. Jurisdiction over offenses connected with the service committed by servicemen, regardless of where stationed, on or off duty. No jurisdiction to try civilians.Power over federal property
Congress has the power to dispose of and make all rules and regulations regarding the territory or other property of the US. Includes wild animals on federal land, federal buildings, military ships and airplanes, Indian reservations. Congress has exclusive power over Washington D.C.Enabling powers
Enforcement of 13th, 14th and 15th Amendments. Under �5 of 14th Amendment, Congress can provide remedies for judicially recognized violations of the 14th, but cannot expand the scope of rights under the 14th.Delegation
Congress can delegate its own legislative power to another branch, but cannot subsequently retract the power (legislative veto).

  1. No delegation has been invalidated for over 60 years, even when the delegation is vague. Therefore, for exam purposes, no limit exists on power to delegate.
  2. Legislative vetos and line-item vetos are unconstitutional, because they fail to pass both houses of congress (bicameralism) and be presented to the president for signature or veto (presentment).
Congress cannot delegate executive power to itself or its officers, because it does not have executive powers to delegate.Other
Admiralty & maritime laws Bankruptcy Postal Coin money Immigration and naturalization (but states can regulate economic matters re: illegal aliens) Copyright and patent Impeachment Speech and debate clause: Absolute privilege for what is said in speech or debate in either house, and privilege against criminal and civil proceedings for regular legislative acts. Eminent domainPowers of President

  1. Chief executive / Domestic affairs

  1. Faithfully execute the laws
  2. Appointment & removal

  1. President appoints ambassadors, federal judges and officers of the US who have significant authority (cabinet members) subject to Senate approval.
  2. Congress may not give itself or other officers the power of to appoint executive or administrative officers � only the President has that power.
  3. Congress may vest in the president the power of appointment of inferior officers, heads of departments, or lower federal courts, without Senate consent, subject to qualifications and procedures which Congress establishes.
  4. Congress can vest appointment of special prosecutor in lower federal courts at the request of the attorney general. AG can fire prosecutor for just cause.
  5. President can remove federal officers appointed by him without cause. Exceptions:

  1. Officers of administrative agencies have fixed terms and cannot be removed "without cause."
  2. Federal officers performing judicial or legislative functions (FTC) may not be removed by president unless Congress authorizes.
  3. A3 judges have lifetime tenure during good behavior, and cannot have their salary reduced.

  1. President has power to regulate executive employees, but cannot unconstitutionally restrict free speech. Power is not plenary, because congress does have input regarding legislative matters.
Veto legislation within 10 days, subject to override by 2/3rds vote of the House. If he doesn�t veto within 10 days, automatic law if congress is in session, pocket veto if not in session.  Impeachment
President, VP, federal judges and officers of the US can be impeached and removed from office for treason or for high crimes and misdemeanors. Impeachment does not remove a person from office. Impeachment by the House of Representatives requires a majority vote, conviction in the Senate requires 2/3 vote.Executive privilege
Absolute immunity from civil suits for actions taken in office; no immunity for actions taken prior to taking office (because unlikely to distract from duties � Clinton may have changed this). Refusal to disclose presidential papers and conversations. Absolute as to military and diplomatic secrets; otherwise merely a qualified privilege which must yield to other important government interests (Nixon). Aides have qualified immunity.Pardon
President has the power to pardon those accused or convicted of federal (not state) crimes (not civil liability, including civil contempt), unless the person has been impeached. Clinton cannot be pardoned for what he has been impeached. Power to pardon applies to people convicted of federal crimes even if being held in state prison. Pardons may have strings attached if President so chooses.Foreign policy
Shared with congress (not plenary). Congress can legislate to preserve government�s monopoly over foreign affairs and relations (i.e. making it illegal for Jimmy Carter to negotiate without permission).  Commander in Chief of the Armed Forces
Deploy military troops even before outbreak or declaration of war, plus broad emergency powers (seizure of private property during wartime). President�s use of troops has never been declared unconstitutional, no matter how outrageous. War Powers Act (result of Vietnam war): President must consult with Congress before introducing armed forces into hostilities; submit report to Congress within 48 hours after introducing armed forces into hostilities; and terminate use of armed forces within 60 days unless Congress has declared war. President can establish military governments in occupied territories. Broad powers re: military training.Treaty is negotiated by president, but effective only when ratified by 2/3rds of Senate (and possibly only when Congress enacts implementing legislation); regarded as supreme law of the land (Heriarchy: Constitution; treaty/act of congress � last in time prevails; executive agreement; state law). Can only be superceded by another treaty or federal statute.  Executive agreement: Agreement between president and the head of another nation. Can be used for any purpose � never struck down. Always prevails over conflicting state laws, but not over conflicting federal laws or constitution.Federalism: Relations of nation and states in federal system

  1. Intergovernmental immunities

  1. States must observe validly enacted federal legislation.
  2. States are immune from federal taxation if the tax is applied to either unique state activities, or essential government functions. But not a proprietary business which would normally be operated by a private individual.
  3. Federal government is immune from state taxation and regulation, and suits by private individuals unless it consents.

  1. States cannot tax the federal government, but can tax independent contractors, apply income tax to federal employees, and tax private use of federal property.
  2. States cannot regulate the federal government, i.e. requiring USPS driver to have state driver�s license. Federal land is regulated by the federal government, not state government.
Supremacy clause

  1. Exclusive federal powers: Treaty, money, import taxes. State laws cannot conflict with federal laws, and cannot act at all in an area where Congress intends to occupy the field.

  1. Laws are mutually exclusive (person cannot comply with both simultaneously);
  2. State law impedes achievement of federal objective;
  3. Congress expresses clear intent to preempt state law; or
  4. State tries to tax or regulate federal government activity.
Exclusive state powers: Powers not delegated to the federal government nor prohibited to the states (10th Amendment).  Concurrent powers: Areas where Congress has not yet acted, or where federal law only establishes minimum standards. State may pass stricter laws than required by federal standards (i.e. health & safety regulations).Powers reserved to the states
Source: 10th Amendment, which reserves to the states any powers not delegated to the federal government or prohibited to the states (treaties, money, bill of attainer, ex post facto law, impairing obligation of K, engaging in war, maintaining peacetime army).

  1. General federal law that substantially burdens the states must have clear declaration from congress of intent to apply law to states.
  2. Generally applicable law (i.e. minimum wage) cannot be defeated by 10th.
  3. Congress cannot compel state regulatory or legislative action (i.e. requiring state law enforcement to enforce handgun background checks).
  4. Other than the above, the 10th Amendment is a weak limitation on commerce power, and usually a wrong answer. Inherent governmental powers, state sovereignty, and reserved powers are all tied to 10th amendment, and wrong answers.
The referendum is a valid exercise of power reserved by the people to themselves. Constitutional as a basic instrument of democracy.Interstate commerce
Congress has primary power granted to it in the Constitution, but where Congress has not acted, states can act so long as:

  1. The regulation must be nondiscriminatory: May not favor or protect local interests against commerce from another state.

  1. Example: Cannot prohibit deposit of out-of-state garbage, or cannot protect residents against out-of-state competition for natural resources.

  1. The regulation must not be unduly burdensome to interstate commerce.

  1. Uses balancing test of burdens and benefits (law unconstitutional if burden to interstate commerce outweighs benefits to state).
  2. No less restrictive means are available.
  3. Usually ok if in the areas of health & safety (police powers), prevention of fraud, and conservation of natural resources.

  1. Exceptions

  1. Localities can regulate local activities, even if visiting foreigners end up having to pay the tax (example: license fee for photographers taking pictures in the city, foreign photographers have to pay it too).
  2. When state acts as market participant and not market regulator, it can buy or sell only to local businesses, or hire only local residents for construction projects; state can prefer its own citizens in receiving benefits (i.e. cheaper tuition for state schools).
  3. If congress approves the regulation.
  4. 21st Amendment allows states to regulate distribution of liquor within the state.
  5. Legitimate means for promoting health and safety concerns (justifiable exercise of state police power).
State taxation of interstate commerce (rarely tested)

  1. Must be reasonable and non-discriminatory (to satisfy Commerce Clause).
  2. Substantial nexus (more than minimum contacts) must exist between state interest and activity being taxed (to satisfy Due Process Clause).

  1. Tax must be fairly related to the services provided by the state.

  1. Goods in the stream of interstate commerce are exempt from state taxation, but may be taxed at the beginning and end of transit.
  2. Instrumentalities (cars, planes, trains, etc.) may be taxed so long as the tax is fairly apportioned to the extent of taxpayer use in the state versus other states.
  3. Sales & use tax: Sales tax valid if sale is consummated within the state, even if buyer takes goods out of state. If buyer is out of state, tax is invalid, but can collect use tax. Requiring seller to collect use tax is valid only if seller has sufficient nexus in the state (such as a sales office, or entered the state for the purpose of the transaction). Use tax may not exceed difference between sales tax of collecting state and sales tax assessed by state in which transaction was consummated.
  4. Privileged & immunities clause: Prohibits state taxes which discriminate against nonresidents.
Protection of Individual Rights & The Fourteenth Amendment

  1. Application via incorporation

  1. Bill of rights applies directly only to the federal government.
  2. Selective incorporation of Bill of Rights to states via 14th Amendment due process clause: 14th says that states may not infringe citizens� privileges and immunities, but Bill of Rights are not privileges and immunities (per court), so the court used the Due Process provision to selectively incorporate rights to apply to the states. All rights have been incorporated except:

  1. Right to carry arms � state and local governments can implement all the gun control they want.
  2. Right not to have soldiers quartered in one�s home (no such case ever brought � so not incorporated).
  3. Right to grand jury indictment in criminal cases (required in federal court)
  4. Right to jury trial in civil cases
  5. Right against excessive fines and bail
Retroactive legislation

  1. Contracts clause: State legislatures cannot pass laws which substantially impair express or implied obligations of existing private or public K�s, unless the prohibition is reasonably and narrowly tailored means of promoting important and legitimate public interest (balancing test). Public K�s requires strict scrutiny (gvmt trying to get out of its own K�s).  Ex-post facto laws: Makes criminal an act that was not a crime when committed, increases the punishment, or decreases amount of evidence needed. No application to civil laws, which requires only rational basis for retroactive civil liability. Applies to both federal and state governments.  Bill of attainer: Legislative punishment or adverse treatment of named group or individual without judicial trial. Applies to both federal and state. Example: Law which makes it a crime for a person who has been a member of communist party to be an officer of a union. Usually applies when government is punishing political party (communist) membership.
State action requirement: Threshold requirement of government conduct which must be satisfied before discrimination can be restricted. Without state action, private discrimination is not actionable under the 14th.

  1. State action

  1. Government officers purport to perform official duties (even if in an unconstitutional manner)
  2. Private parties undertake what is a traditionally public function. Example: Company town. But not privately owned utility company, school, nor nursing homes.
  3. Significant involvement or encouragement by government entity of private conduct, such as public school system, use of textbooks by private school, and state administered housing, employment or essential services, adjudicating racially restrictive covenants. Doesn�t include merely licensing or regulation.

  1. Exception: Congress can prohibit private discrimination by statute, without showing state action (13th Amendment enabling laws). Commerce clause power can also be used (i.e. Civil Rights Acts).
Procedural due process
Procedural safeguards of notice and hearing are available whenever there is a serious deprivation of life, liberty or property.

  1. Liberty interest: Significant freedom provided in Constitution or statute.

  1. Right to K, engage in gainful employment (termination of professional license requires post-suspension hearing), natural parents in care and custody of their children, refuse unwanted medical procedures, commitment to mental institution.
  2. Corporal punishment of pupils in schools.
  3. Nonemergency institutionalization requires notice and hearing, but only finding of fact for child.
  4. Harm to reputation is insufficient unless there is also tangible harm.
  5. Prisoners rarely have liberty interest. Interest exists for involuntary transfer to mental institution, administration of anti-psychotic meds, revocation of parole or probation.
  6. Termination of child custody requires notice and hearing
Property interest: Entitlement right (reasonable expectation of continued receipt) or privilege.

  1. Continued welfare benefits (pre-termination hearing), SSDI (post-termination hearing)
  2. Public elementary and secondary education (suspension requires notice of charge and opportunity to explain � longer suspension requires hearing).
  3. Punitive damage awards require instructions to jury and judicial review to ensure reasonableness. Only unconstitutional in one case: BMW � grossly excessive.
  4. Prejudgment attachment and forfeiture of assets requires prejudment hearing, except exigent circumstances.
  5. Garnishment of wages
  6. Continued tenured public employment (cause required), but not when at-will.
  7. Retention of driver�s license (requires hearing � but not forfeiture for failure to do breathalizer)
Deprivation must be intentional or reckless � not merely negligent. In emergency situations, government liable only if conduct shocks the conscience (official intended to cause harm). Government�s failure to protect people from privately inflicted harms does not deny due process (i.e. putting child back with abuser). Irrebuttable presumptions in civil and criminal cases may trigger due process violation.Balancing test for determining the severity of the harm vs. administrative cost of government to determine what, if any, safeguards are required (notice, hearing, attorney present, discovery) and when those safeguards must be provided (before/after interest is affected). Applies to natural persons and corporations.Takings (5th and 14th)

  1. Private property may not be taken for public use (safety, health, economic, political, social, welfare, aesthetic, or moral ends) without notice, a fair hearing, and just compensation (FMV in hands of owner).
  2. Taking occurs by confiscation (easement), physical occupation (cable TV box), or state police power regulation leaving no viable economic use (post-purchase zoning change prohibiting structures on the land). Mere regulation does not require compensation.
  3. Factors: Significance of public purpose, expectations and financial interest of owner. Any physical encroachment, even minor, is a taking. No compensation for land use, zoning, environmental protection, landmark preservation.
  4. Public use of land may be done by a private company (i.e. a privately run public park).
Substantive due process & Equal protection


  • Strict Scrutiny / Fundamental Rights

  • Intermediate Scrutiny

  • Rational Basis / Not Fundamental Rights

  • Burden

  • Government must show that the law is necessary to a compelling government interest, and that no less restrictive alternative means are available.

  • Government must show that the law is substantially related to an important government interest.

  • p must show that the law is not rationally related to any legitimate government interest.
    p usually looses.

  • Type of classification

  • The law must classify or discriminate on its face (de jure) or have both discriminatory intent and impact.

    1. Law doesn�t facially discriminate or classify, but that�s its effect (de facto).

  • Substantive Due Process: Applies to a law of general applicability.
    Equal Protection: Applies where law affects similarly situated people (or corporations) differently (states 5th, federal 14th).

  • Privacy: CAMPER
    Contraception (use and purchase; married and unmarried)
    Abortion (no undue burden on pre-viability abortion, prohibit ok after viability except to save mom�s life)
    Marriage (can�t forbid interracial)
    Education (choice between private/public)
    Relations (child custody, related but not unrelated persons to live together, raise children)
    Fundamental Rights: TRAVS
    (use substantive due process)
    Travel (domestic)
    Vote (incl. running for office, policical parties, primaries)
    Suspect Classification (unalterable characteristics, history of purposeful unequal treatment and political powerlessness)
    (use equal protection)
    National origin
    Refuse medical treatment (but not MD-assisted suicide)
    Read obscene literature at home
    Indigent divorce w/o filing fee

  • Gender
    Illegitimacy (law generally invalid)
    Undocumented alien children (entitled to free school)

  • Rights: Social and economic welfare measures, public housing, necessities of life, bankruptcy, public education, economic liberties, foreign travel, practice trade or profession, public employment, physician assisted suicide, unrelated people living together, gay sex.
    Classifications: Age, disability, wealth/poverty, sexual orientation, any others.
    Congressional regulation of aliens, naturalization, deportation. State regulation of aliens as related to self-government (teachers, police officers, jury service).
    Taxes, and instituting supermajority vote for special taxes

    1. Abortion

    1. Parental notice and consent for unmarried minor ok so long as judicial bypass is available.
    2. Spousal consent and notification requirement is unconstitutional.
    3. Waiting periods, informed consent, and M.D. all non-undue burdens.
    4. No right to public funding.

    1. Race

    1. Strict scrutiny applies to benign classification (affirmative action) in employment, college admissions, promotion preferences, hiring.
    2. To pass muster, the action must be aimed at remedying effects of past purposeful discrimination, narrowly tailored, and doesn�t unduly deprive innocent persons of rights.
    3. Quotas: Numerical set-asides requires very precise findings of past discrimination. Virtually all quotas will be held unconstitutional unless court finds entity refused to correct imbalance. Numerical goals are more favored.
    4. Schools can use race as one factor in admissions to help minorities (Bakke).
    5. Bussing: Schools have affirmative duty to eliminate intentional segregation. Temporary bussing can be used to achieve desegregation, and racial quotas can be used to determine who is to be bussed. Individual schools may not be required to adhere to precise district-wide ratios.
    6. Relevent pool is the qualified applicant pool � not total minority population.
    7. Preemptory jury challenges on the basis of race violate EP and are unconstitutional in both civil and criminal cases.
    Durational residency requirements held unconstitutional for receipt of indigent medical services, welfare benefits, library services. Valid for reduced in-state tuition (12 months max), obtaining a divorce (12 months max), voting in state primary elections (50 days max).Vote
    Apportionment: 1 person, 1 vote requires approximately equal districts. Exception for special limited purpose districts (i.e. water storage district vote can be limited to land owners in proportion to land owned). At-large elections (each person has 3 votes for 3 positions) constitutional unless there is proof of discriminatory purpose. Discriminatory impact (no blacks ever elected) not enough. Gerrymandering is unconstitutional: Apportionment scheme deliberately distorting political districts for discriminatory or partisan political purposes. Exceptions: Minimum age, residency requirements, reasonable number of qualifying signatures, reasonable filing fees. Congress can regulate elections to ensure no discrimination on race (15th A.), gender (19th A.), age (26th), or poll tax (24th).Gender
    Affirmative action permitted subject to intermediate scrutiny (generally upheld). Role stereotypes are impermissible, but legislation may take biological differences into account (i.e. can exclude pregnancy from state disability insurance because men and women were treated equally). Cannot give alimony only to women. Preemptory challenges not allowed. In recent years, all laws discriminating against women have been overturned, and most laws discriminating against men (one exception: Men can be punsished more harshly for statutory rape because that furthers an important state interest).Privileges & immunities clauses
    No applicability to corporations. 14th Amendment narrowly protects the federal rights of citizens from infringement by states. Applies only to people (not businesses). Nearly always a wrong answer on the MBE. Protects right to petition congress for redress of grievances, travel across state lines, peacefully assemble, use navigable waters, vote in federal elections, Habeas Corpus, claim benefits of treaties. First and only use was 5/17/99 enforcing right to travel. Equal protection and due process also apply to all of these rights, and are stronger answers. A4�2: Comity clause. No state may deny an out-of-state U.S. citizen the privileges and immunities which the state gives its own citizens with regards to basic economic rights and liberties.

    1. Example: Professional license fees, residency requirement for medical care, hiring preference to state residents, not letting foreigner run for office. But not applicable to a recreational hunting license (gvmt can charge out-of-staters more).
    2. Yields when government has a substantial interest in discriminating (intermediate scrutiny) and uses least restrictive means.
    3. Does not protect corporations and aliens � only natural persons.
    First Amendment

    1. Religion and separation of church and state

    1. Government may not pass a law preferring or aiding one religion over another, nor discriminate against religious speech, without satisfying strict scrutiny test.
    2. Establishment

    1. Lemon Test

    1. Primary purpose of law must be secular
    2. Primary effect of law must neither advance nor inhibit religion.
    3. Law must not foster excessive government entanglement with religion.
    Public schools
    Religious activities in public schools are unconstitutional: Required non-denominational prayer (i.e. at graduation); daily bible reading, even if excusal allowed; posting of ten commandments; moment of silent voluntary prayer, even if student led; forbidding teaching of evolution. But religious student and community groups must have equal access to public college facilities as non-religious groups.Religious schools & institutions
    Indirect aid is ordinarily upheld: Bussing, text books, educational expense tax deduction, standardized testing, property tax benefits. But not direct aid to elementary and secondary schools, such as construction grants, direct tuition reimbursement, or salary supplements. Aid to church-affiliated hospitals for care of indigents, and to church-related colleges is generally upheld if the grant has stipulations attached that the money may not be used for sectarian purposes, and avoids excessive entanglement. Tax deduction for tuition paid only to religious schools is invalid, as are tax exemptions only for religious organizations, but general tax deduction and property tax exemptions are ok.Public displays: OK so long as secular purpose (celebrate holiday season) such that benefit to church is incidental, no excessive entanglement, and no one religion being favored over another. Examine who erected the display (city good, church bad), and what it contained (no one religion favored, and mix of religious and secular items).Free exercise
    Direct (de jure) regulations must meet strict scrutiny. Indirect (de facto) regulations are ok if secular in purpose. Beliefs are absolutely protected. Court may not determine reasonableness of beliefs (whether one religion is right and another is wrong or invalid), but court can determine sincerity (whether belief is a tenent of the applicable religion, and genuinely held by the individual asserting it). Conduct in furtherance of religious beliefs may be regulated by generally applicable laws if there is an important or compelling state interest. Courts balance burden to person vs. government interest in regulation of that conduct.

    1. State can order medical care for a child whose parents refuse the care on religious grounds. State will balance the objections of the parents versus the health and safety of the child.
    2. Generally applicable law can be applied regardless of burden because legislature did not intend to burden religion with law: Peyote, polygamy, no religious exception for military uniform (broad deference to military commander for unit cohesiveness), social security tax applies to Amish.
    Examples (free exercise claim usually loses):

    1. No mandatory flag salute in schools.
    2. Sunday closing laws are constitutional despite Jews who wanted to open on Sunday to be closed on Saturday. Rationale is that they provide a day of rest, which is in the government�s interest. But can�t disqualify a person for unemployment benefits because they refuse to work on their sabath.
    3. Selective service exception for conscientious objectors
    4. Amish cannot be required to attend school after age 16.
    Freedom of speech is not absolute.  Facially invalid laws
    Invalid (speaker may ignore statute) unless subsequently interpreted in a foreseeably constitutionally proper manner. Example: Law prohibiting sexual conduct with a minor probably vague, but upheld if court later interpreted as applying only to fornication, which is clearly within the meaning of "sexual conduct". If the statute is valid on its face, the speaker may not ignore statute. Speaker must seek judicial relief before speaking, otherwise subsequent claim of 1st Amendment violation will fail.  Vagueness: A person of ordinary intelligence would be uncertain as to whether conduct was proscribed or not.  Overbroad: Proscribes unprotected and protected speech, conduct or behavior, or is applied in an overbroad manner.  Unfettered discretion in licensing official as to whether to confer or deny a permit.Prior restraints (permits, licensing, etc.)

    1. Advance restrictions on speech are nearly always unconstitutional. Exception for national security.
    2. Scheme must relate to an important government objective, be clearly written, narrowly drawn, no unfettered discretion, clearly and reasonably regulate time, place and manner of speech, and allow for prompt determination of requests and judicial review of denials.
    3. Gag orders: Content-based restrictions requires strict scrutiny, and are almost always overturned because of right to report on matters of public interest. Content-neutral requires intermediate scrutiny. Gag on criminal trial ok if it�s the only means of insuring a fair trial.  Injunction: Must be complied with, even if facially invalid, until overturned or terminated, unless issued by a court lacking SMJ, or if injunction deliberately makes judicial review difficult (issued immediately prior to speech). Otherwise, person who fails to comply is estopped from challenging and in contempt.  Obscenity: Injunction or large seizure must be preceded by a hearing, burden on censor to prove matter is obscene.
    Content based: Subject matter (politics) or viewpoint (libertarianism) restrictions must meet strict scrutiny, unless:

    1. Clear and present danger (aka incitement of unlawful activity)

    1. Directed at producing imminent unlawful conduct; and substantially likely to produce such unlawful conduct.
    2. Regulation is often overbroad.
    Fighting words
    Insults likely to provoke ordinary person to commit an act of violence can be made criminal. Statute must be viewpoint neutral (not just based on race, religion or gender). Most if not all of these laws are unconstitutionally vague and overbroad (never upheld in 60 years). The mere fact that the listeners may be vehemently opposed to the content of the speech is not a valid basis for restriction of the speech.Fraudulent commercial speech
    Commercial speech is protected under intermediate scrutiny, which allows for regulation of harmful and illegal products, and false and deceptive advertising (includes prohibiting trade names for certain professionals). City can regulate billboards for aesthetics, but may not distinguish between types of messages. In-person solicitation by lawyer (but not accountant) of clients for-profit is prohibited (lawyer-initiated), but advertising and written solicitation is protected. In-person solicitation for profit is not protected. Balance individual�s right to privacy with freedom of commercial speech. Evaluate prior restraint, overbreadth, alternative means of advertising, narrowly drawn.Obscenity
    To be obscene, the material must:

    1. Appeals to prurient interest in sex, applying contemporary local community standards (manner in which the material is advertised and sold � pandering � may be probative of prurient interest);
    2. Depict sexual conduct in a patently offensive way, determined by local community standards; and
    3. Taken as a whole, the material lacks serious redeeming literary, artistic, political or scientific (LAPS) value. National reasonable person standard (not local community).
    Merely offensive language is not obscene and not restricted, but profane language on the airways may be restricted because children have unsupervised access; also restricted in schools. Private possession of obscene materials in one�s home is protected, except for child pornography. Viewing, sale, mailing and distribution of obscene material may be vigorously regulated through movie ratings and zoning ordinances (can be used to regulate location and distribution of adult theaters and bookstores based on the secondary effects � crime, violence, alcohol - of the commercial speech) but can�t totally prohibit all "live entertainment" in the city, b/c no other adequate channels of communication. Government can seize all the assets of businesses convicted of violating obscenity laws. Liquor: State can regulate non-obscenity (i.e. nude dancing) in establishments licensed to serve liquor under the 21st Amendment. Any large scale seizure of obscenity requires 4th Amenmdent compliance: Full adversary hearing and judicial determination of obscenity. Seizure of a single book to preserve as evidence in criminal proceeding requires only a warrant. States can regulate non-obscene speech with regards to how children can access it, but statute must not affect right of adults to access the materials. Example: Requiring magazine stands to cover up Playboy pictures.  Child pornography: Can be punished even if not obscene. Even private possession can be punished. Scientific and educational publications are constitutionally protected. Visual depictions of child pornography can be punished even if not "obscene."Defamation

    1. p

  • Liability Standard

  • Damages

  • Public official and public figure (celebrity � access to media to respond)
    Limited public figure (voluntarily injects himself into public eye for limited time)

  • p must prove falsity of statement plus actual malice (knowing falsity or reckless disregard for truth)

  • Compensatory presumed

  • Private person

  • Public concern: Negligence or malice must be proven.
    Private concern: False statement.

  • Compensatory for actual injury
    Punitive damages requires malice.

  • Privacy

    1. Government may not create liability for truthful reporting of information lawfully obtained from the government.
    2. But the government may limit its own dissemination of information to protect privacy.
    Content neutral

    1. Public forums (street, park, sidewalk except post office)

    1. Must be a reasonable time, place and manner regulation, which needs to only meet intermediate scrutiny. Regulation must:

    1. Further a significant governmental interest (noise, crowd, litter control, traffic safety);
    2. Be narrowly tailored (no more restrictive than necessary � not necessarily the least restrictive alternative); and
    3. Leave open alternative channels of communication (i.e. commercial door-to-door solicitation can be restricted because other avenues of communication exist such as mail, newspaper, radio, tv).

    1. Requiring a permit is fine, so long as the process doesn�t try to circumscribe the message.
    2. Floating buffer zone barring all verbal and written communication in 15 feet space between protesters and persons entering/leaving abortion clinic unconstitutional because it burdens speech more than necessary to ensure access to clinic. But prohibition of picketing around a personal residence is constitutional because of privacy and tranquility interests.
    Limited public forum (library, school, state fairground)

    1. Can be restricted such that the speech doesn�t disrupt the function of the forum.
    2. Once a limited public forum is opened up to certain types of expression, similar forms may not be foreclosed unless substantial government interests is present, unrelated to content of the speech, and restriction is no greater than necessary to accomplish government objective.
    3. Government entities may decide who may speak directly to its employees at work (one union, particular charities).
    Nonpublic forum (jail, military base, inside of courthouse, mailbox, private billboard, government owned stations in political debates, post office sidewalk, public buses, government buildings, airport terminals).

    1. Regulation must be viewpoint neutral (conduct and subject matter may be regulated); and
    2. Reasonably related to a legitimate government interest.
    Private property (privately owned shopping center): No constitutional right to free speech on private property.

    1. Shopping center: runeyard says there is such a right in CA under state constitution, but not federal. Speech may not unreasonably interfere with normal operation of premises. Does not infringe on owner�s first amendment rights because owner can post signs saying he disagrees with the speech.
    2. Solicitation: Complete ban is unnecessary because "no soliciting" sign will do the trick. Post office can restrict mail advertisements at householder�s request.
    Symbolic speech
    Medium itself is the message Regulation of conduct must further significant government interest unrelated to suppression of the message Narrowly tailored Leave open alternative channels Examples:

    1. Draft card burning can be prohibited because of the need for smooth running of draft system; nude dancing not protected
    2. Black armband; flag burning is protected (ban would be content specific and lacks significant government interest; chilling effect and vague); burning cross; painting swastika is all protected. However, destruction of another�s property is illegal, but not the symbols themselves.
    3. Penalty enhancements for hate crimes are constitutional because the conduct is being punished, not the speech.
    Broadcast media
    Restrictions on TV and radio stations are subject to rational basis review because of a scarcity of frequencies and likelihood that the content of the speech will invade the home unexpectedly. Cable companies have slightly more protection (intermediate scrutiny). Cable companies can prohibit offensive sex-related material (i.e. x-rated channel), despite law requiring operator to lease channel to TP. Newspaper and print media have the most scrutiny (strict). Internet has strict scrutiny protection because of lack of scarcity of frequencies, and little chance of unexpectedly invading privacy of home. Ban on transmitting indecent materials to minors is invalid because of a lack of way to make sure that adults can still get those materials. The law amounted to a total ban on protected speech, and thus was unconstitutional. Government may not prohibit the sale to adults just because it is inappropriate for children.Forced speech

    1. Government cannot force someone to convey a message, such as a motto on a license plate, which can be covered up so long as the purpose of the license plate (vehicle identification) isn�t hampered.
    2. Children cannot be compelled to salute or pledge allegiance to the American flag.
    3. Broadcasters can be required to provide equal time to both sides of an issue because of limited airwaves. Newspaper cannot be so required.

    1. Public employment and bar membership
    May not be denied based upon group affiliation unless government can show: Individual is a knowing and active member of an organization which advocates unlawful conduct; and individual has specific intent to further illegal objectives of organization Bar association can inquire into membership into subversive organization and use that as a screening factor (moral character), thus applicants cannot refuse to answer, but membership alone cannot be grounds for denial of admission to the bar.Loyalty oath ("I am not a communist") generally invlid as a condition to public employment (vague and overbroad). Oath to support and uphold constitution and oppose violent overthrow of government is valid. Disclosure requirements: To avoid chilling effect on first amendment activities, disclosure is generally not required, unless government could make such membership illegal. Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity. A private group using a place of public accommodation for first amendment activity can be prohibited from discriminating against protected groups.Freedom of press
    No special 1st Amendment privilege beyond what is afforded to private citizen. Right of access: No right of access to information different from the right of normal people of access to information. Both public and press have a right to attend a criminal trial, but that right may be outweighed by overriding government interest and such closure is narrowly tailored so that the D �s right to a public trial isn�t interfered with. Privilege: No privilege exists to refuse to disclose confidential sources to a grand jury, but states may enact shield laws to afford such protection. Broadcasting: May be regulated more closely than the press due to the limited number of frequencies. Equal time broadcasts may be required on TV and radio, but newspaper need not provide equal space for political rebuttal. 

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