mbe subjects ii - con law outline

8/12/2019 Mbe Subjects II - Con Law Outline

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MBE CONSTITUTIONAL LAW

I. THE NATURE OF JUDICIAL REVIEW

A. Organization of the Courts in the Federal System (OL I. A.)

1. Federal Court System

a. Scope of Federal Judicial Power

(1) Article III, section 2, limits the jurisdiction of the federal courts to:

(a) Law-ased Federal Jurisdiction

1) Cases arising under Constitution law

2) Admiralt and maritime cases

(!) Party-ased Federal Jurisdiction

1) ".#. go$ernment

2) #tate $. #tate

%) #tate $. Citi&ens of other #tates

') Citi&ens from different states di$ersit jurisdiction, with *+, in contro$ers

+) -oreign dilomats

!. /he 11th Amendment: pri!ate indi!iduals cannot sue states for money damages in any court . #tate

so$ereign immunit !ars suits against states in state courts or federal agencies.

(1) 0cetions to the alication of the 11th Amendment:

(a) -ederal suits !rought ! one state against another state (or suits !rought ! the federal

go$ernment against a state)

(!) #u!di$isions of a state i.e. cities, towns, and counties. owe$er note that suits against state officers

are allowed as long as the state treasur will not !e aing retroacti$e damages.

(c) 3ost suits for injunctions i.e. ri$ate citi&en ma sue to enjoin a state official from acting in $iolation

of laintiff4s federal constitutional right

(d) A state ma consent to suit in federal court if it clearl wai$es its 11thamendment immunit


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eressl and une5ui$ocall

(e) 0nforcement owers: Congress can authori&e ri$ate suits ! indi$iduals to comensate for state

$iolations of those amendments

"#A$PL"% #uose that Congress enacts a law that sas that citi&ens can sue a state formone damages for torts committed ! state officials. /his cause of action is not created

ursuant to 0nforcement 6owers !ecause no issue of constitutional $iolation ! a state. /hiscause of action is !loc7ed ! state so$ereign immunit and the 11th Amendment.

"#A$PL"% #uose Congress enacts a law that sas ri$ate arties can sue states formone damages for racial discrimination. /his is something that the 1'th Amendment for!idsand we are an enforcing this Amendment8 therefore, it is not !loc7ed ! the 11th Amendment.

2. Other Limitations on Jurisdiction of Federal Courts

a. Case or Contro!ersy

(1) Article III, section 2, limits the jurisdiction of federal courts to 9cases and 9contro$ersies.

3nemonic:;A36# (to get into federal court, one must go u the ;A36#).

!. Standing

(1) Article III re5uires a erson litigating a constitutional 5uestion to show:

(a) &n'ury in Fact

1) Actual or imminent ersonal injur

2) 0amles of Indi$iduals who lac7 standing:

a) a legislator

!) ri$ate indi$idual

c) /aaer

i) "#C"P(&O)%taaers ha$e standing to sue on esta!lishment clause grounds !ut

cannot challenge eecuti$e action ! 6resident or A3/I6


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a) #ecial relationshi so that interest of laintiff are connected to third art4sconstitutional rights, A?=

!) Incaacit

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)"" (O " ASOL0(".

2) An organi&ation has standing to assert the claims of its mem!ers, e$en if the association has

not suffered an injur itself, if:

a) 3em!er standing

!) 6urose of the association

c) 3em!er articiation not re5uired

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(," )"&/,O*,OO CA))O( *&)/ A S0&( O) ,&S ",ALF FO* $O)"

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)"&/,O*,OO ASSOC&A(&O) CA) *&)/ A S0&( *"70"S(&)/ A) &)J0)C(&O).

,PO(,"(&CAL

/he mem!ers of the ?ational 6olitical @oo7 Clu! (?6@C) urchase !oo7s of their choosing relating to contro$ersial oliticalissues at a discount rice from ?6@C. /he =eartment of omeland #ecurit has demanded that the ?6@C turn o$er its

sales records, including which !oo7s ha$e !een urchased ! each mem!er. ?6@C sues to re$ent the release of

information, claiming free association of its mem!ers. ill the clu! ha$e standingB

Do the members have states !es" the# $o be%a&se the# 'ose (r)va%# r)*ht. Is

the or*a+),at)o+-s (&r(ose re'ate$ to )+terest be)+* asserte$ be%a&se the#

a+t (eo('e to rea$ these boo/s. F)+a''#" there )s +o re0&)reme+t 1or member

(art)%)(at)o+ be%a&se threate+e$ )+2&r# )s the same 1or ever#o+e. A+$ the

same reme$# )'' re$ress the)r %'a)ms.

c. *ipeness

(1) =efinition: A lawsuit filed !efore an actual injur.

%. )o Ad!isory Opinions

a. $ootness


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(1) =efinition: A lawsuit is filed too late. ill the federal decision do anthingB ?o redressa!ilt.

(a) "#C"P(&O)%Cases that are caa!le of reetition et e$ading re$iew.

"#A$PL"% here there is a restriction on a regnant woman4s right to see7 an a!ortion !utthere is no wa the case can !e decided while she is still regnant. /his is caa!le ofreetition !ut the court will ne$er hear it so it e$ades re$iew. #o we ma7e an ecetion.

(!) "#C"P(&O)%$oluntar cessation and class action suits.

If the answer is 9rieness or 9mootness, then the 5uestion will most li7el deal with declarator judgment.

!. Political 7uestions

(1) -ederal courts cannot hear cases in$ol$ing olitical 5uestions. A olitical 5uestion is a matter assigned to

another !ranch ! the constitution or incaa!le of a judicial answer. /he #ureme Court set forth factors

to determine if the olitical 5uestion doctrine alies. /hese are the two most imortant factors:

(a) /etual commitment

"#A$PL"% /he constitution sas the #enate shall ha$e the sole ower to tr imeachments./his is not a matter for the courts.

(!) ?o standards

"#A$PL"% /he court states it will not re$iew the wa a state draws its electoral districts wherethe laintiff argues the were drawn in a manner to fa$or one olitical art o$er another.

"#A$PL"% If the laintiff argues that the electoral districts were drawn in a manner to fa$or aarticular race, the court will hear the case.

-oreign affairs is a fre5uentl tested olitical 5uestion toic. Other toics include the reu!lican form ofgo$ernment clause, challenges to imeachment and remo$al rocess, and artisan gerrmandering.

c. A+stention

(1) =efinition: deference to state courts

(a) /he federal court ma a!stain if the meaning of a state law or regulation is unclear. In this situation,

the state court might interret the statute so as to a$oid the constitutional issue.

(!) here a state court roceeding is going on, the federal court will a!stain from hearing the same

matter.

d. Ade8uate and &ndependent State /rounds

(1) =efinition: ".#. #ureme Court will not hear a case from state high court if the case is suorted ! an

indeendent and ade5uate state law ground of decision.

(a) "nli7e other doctrines of judicial re$iew, which al to the entire federal judiciar, ade5uate state

grounds al onl to the #ureme Court.

"#A$PL"%A art to a contract !reaches one ro$ision of the contract. /he matter goes uthrough the state sstem, and the state court rules that the entire contract is nullified !ecausethe !reached ro$ision was not se$era!le as a matter of state law and !ecause it is in $iolationof the federal antitrust laws. /he court has ruled on one state law ground and one federal lawground. /he #ureme Court cannot hear this case !ecause the state law ground is ade5uate

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to suort the decision.

A state law ground will usuall !e ade5uate if it invalidatessomethinga state law or a contract. It will usuall not!e ade5uate if the law or contract is uheld under !oth state and federal law.

(!) "#C"P(&O)%#tate follows federal go$ernment, which does not count as indeendent state

ground.

. (he 0nited States Supreme Court (OL I. @.)

1. Jurisdiction of the Supreme Court

a. "nder Article III, section 2, the #ureme Court has original 'urisdiction in:

(1) 6arties include:

(a) -oreign dilomats

(!) #tates

!. Appellate 'urisdictioneists where the federal constitution or a federal law are at issue.

d. Congress5 Power O!er the Courts

(1) Lower -ederal Courts: hate$er it wants

(2) #ureme Court: Congress cannot limit #ureme Court

(%) Congress cannot: ta7e a case from aellate to original i.e. 3ar!ur $. 3adison

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BAR E3AM A44LICATION

Duestion 1

/he legislature of #tate @lue enacted a statute rohi!iting 9an artificiall amlified u!lic address within + feet of the

caitol !uilding while the state legislature or an of its committees is actuall conducting !usiness therein.

hich of the following laintiffs would !e most li7el to ha$e standing to attac7 in federal court the constitutionalit of the

statute rohi!iting amlified u!lic addresses near the caitol !uildingB

A) A state legislator who $oted against the statute !ecause she !elie$ed it to !e unconstitutional.9 A candidate for election to the state legislature who intended to address a gathering of his supporters at a

par: across from6 and within ;


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II. SE4ARATION OF 4OWERS

A. (he Powers of Congress (OL II. A.)

1. Legislati!e Power

a. Congress has the owers the Constitution gi$es it and no others.

(1) -or a federal law to !e constitutional:

(a) 3ust !e Congressional ower that authori&es it

(!) 3ust not $iolate or conflict with constitutional right

(2) -or a state law to !e constitutional:

(a) 3ust not $iolate an constitutional rights.

atch out for an answer that sas the federal olice ower or Congress4 ower to romote the generalwelfare. /hese owers do not eist unless discussing the =istrict of Colum!ia or some other federal territor.

!. 6rocedurall, Congress asses a !ill with a majorit in !oth houses. /he 6resident then signs the !ill or

$etoes it. If the !ill is $etoed, Congress can o$erride the $eto if it gets a $ote of 2F% majorit in each house.

c. #u!stanti$el, Congress has three sources of ower to legislate:

(1) "numerated powers: commerce, taing, sending, immigration

(2) /he"na+ling Clausesof the 1%th, 1'th, and 1+th Amendments: Congress can enforce ! aroriatemeans

(%) /he )ecessary and ProperClause: iggle room8 Choice of means

"#A$PL"% Congress asses a law creating a national !an7. /he Constitution does not eresslgi$e Congress this right. owe$er, the #ureme Court reasons that a national !an7 will helCongress a de!ts, collect taes, send mone, and regulate commerce. /hus, the clause is

justified in conjunction with other enumerated owers.

/he ?ecessar and 6roer Clause as an answer ! itself will usuall !e incorrect. If it4s the ?ecessarand 6roer Clause in conjunction with another ower, it is more li7el to !e a right answer.

2. Commerce Power

a. Congress can regulate:

(1) Channels of interstate commerce such as highwas, waterwas, air traffic

(2) Instrumentalities of interstate commerce i.e. cars, truc7s, shis, airlanes

"#A$PL"% "sing its commerce ower, Congress can enact a law rohi!iting interstate shiment ofgoods made with child la!or. Congress is tring to discourage child la!or, an interstate acti$it. Itdoes not matter that the urose is not commercerelated.

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(%) Acti$ities that 9su!stantiall affect interstate commerce. In the area of noneconomic acti$it, a

su!stantial effect cannot !e !ased on cumulati$e effect.

(a) #u!stantial 0ffect:

"#A$PL"% Congress can use the commerce ower to rotect the right of wor7ers to formunions. Although this seems urel intrastate, the flow of goods and eole across state linesis affected ! la!or disutes.

(!) Cumulati$e 0ffect =octrine: 0$en an entire intrastate acti$it has a cumulati$e imact on interstatecommerce.

"#A$PL"% /he federal commerce ower ermits regulation of the amount of wheat a farmercan grow on his own land, for his own consumtion, !ecause his acti$it, together with that ofother growers of wheat for their own consumtion, ha$e a su!stantial cumulati$e effect uoninterstate commerce.

(c) Limitations:

1) Cannot use to regulate intrastate noneconomic acti$it

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0>A36L0% 4&OL")( C*&$" &S )O( A) "CO)O$&C AC(&4&(.

0>A36L0% LOA)S,A*2&)/ &S CO)S&"*" A) "CO)O$&C AC(&4&(.

0>C06/IO)% CO$P*",")S&4" SC,"$" =/O)>AL"S 4. *A&C,6 ;?; 0.S. @ B


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=o not sa that something is unconstitutional !ecause it is not for the general welfare.

"#A$PL"% Congress can gi$e mone to olitical candidates and state that, in return, the must a!ide !certain eenditure limits. /he #ureme Court sustained this as sending for the general welfare!ecause it would reduce the harmful effect of candidates4 reliance on large ri$ate contri!utions.

"#A$PL"% Congress can send mone to !uild highwas. /he can e$en send mone to !uild a

single !ridge in a single state. /his is !ecause transortation romotes the general welfare."#A$PL"% Congress ma not send mone to !uild a $acation home for the #enate majorit leader. Itwould ta7e this sort of selfdealing and corrution to fall outside of the general welfare.

!. Congress can use its sending ower to get around limits on its regulator ower. It ma ass a law offering

mone to states or indi$iduals in echange for 9. Often, 9 is not something that Congress could order the

state or indi$idual to do directl.

"#A$PL"% Congress cannot use its commerce ower to regulate u!lic schools. owe$er, it can use itssending ower to offer mone to the u!lic school sstems if the agree to imlement standardi&edtesting.

c. Congress ma lace a condition on receit of federal funds ! a state if:

(1) #ending ser$es general welfare

(2) Condition is unam!iguous

(%) Condition relates to federal rogram (9relatedness)

(') #tate is not re5uired to underta7e unconstitutional action8 and

(+) Amount in 5uestion not so great as to !e considered coerci$e to state4s accetance

,PO(,"(&CAL

In this ear4s !udget, Congress attaches a stiulation on school !rea7fast funding to the states re5uiring the reciient state

to offer and a for uni$ersal health care of its citi&ens. ill the stiulation !e uheld in a challengeB

No" be%a&se %o+$)t)o+ )m(ose$ $oes +ot re'ate to the 1e$era' (ro*ram .

+. 1ar and efense Powers

a. Congress ma HArticle I, section G:

(1) =eclare war

(2) Congress can raise and suort the arm

(%) 6ro$ide and maintain for the ?a$

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(') Organi&e, arm and call out militia

!. /he war ower confers uon Congress $er !road authorit to initiate whate$er measures it deems necessar

to ro$ide for the national defense in eacetime as well as in wartime. =uring wartime, Congress has the

ower to:

(1) =raft

(2) 6rice controls J Can do this during eace too through commerce ower !ut during war time, war

owers is !etter answer

(%) Ci$ilian eclusion

c. Congress can esta!lish militar courts to gain jurisdiction o$er mem!ers of the armed forces, conduct court

martial roceedings, and tr enem com!atants.

A 5uestion might as7 what rights does a terrorist ha$e with resect to detentionB @oth ".#. citi&ens andnon".#. citi&ens within the "nited #tates (or ".#. territories) are entitled to =ue 6rocess rights. ".#.citi&ens anwhere entitled to due rocess.

K. &mmigration and )aturalization

*. &n!estigatory Power

a. Congress4s in$estigator ower is: anthing related to lawma7ing functions

(1) Congress4s in$estigator ower is !road, and it ma etend to an matter: re5uire eole to testif,

su!oena eole.

(2) It ma do things necessar to facilitate an in$estigation. -or eamle, if a witness fails to aear after !eing

summoned !efore a congressional committee or fails to answer a 5uestion osed ! such a committee,Congress ma cite the witness for contemt.

(%) Congress cannot: o$erride rights such as selfincrimination

G. Property Power

a. ;egulate and disose federal roert

If dealing with a federal territor and not a state, Congress has a general legislati$e ower and can ass anlaw it would li7e.

. Power of "minent omain

a. /a7e ri$ate roert for just comensation.

1. Admiralty and $aritime Power

a. /he #ureme Court has determined that the ?ecessar and 6roer Clause gi$es Congress comlete and lenar

ower to fi and determine the maritime laws throughout the countr.

11. an:ruptcy Power

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a. Congress has the ower 9to esta!lish uniform Laws on the su!ject of @an7rutcies throughout the "nited

#tates.

12. Postal Power

a. 0sta!lish ost offices

1%. Copyright and Patent Power

a. Congress ma 9romote the 6rogress of #cience and useful Arts, ! securing for limited /imes to Authors and

In$entors the eclusi$e ;ight to their resecti$e ritings and =isco$eries.

1'. Speech and e+ate Clause

a. 3em!ers of Congress cannot !e sued or rosecuted for anthing said during de!ate.

1+. Ci!il 1ar Amendments

a. Congress has the ower to enforce:

(1) /he 1%th Amendment: !ans sla$er and in$oluntar ser$itude

(2) /he 1'th Amendment: rohi!its states from $iolating due rocess, e5ual rotection and ri$ileges and

immunities

(%) /he 1+th Amendment: !ans race discrimination in $oting

!. /o $alidl enforce these amendments, Congress:

(1) 1'thand 1+thamendment alies to onl states and not ri$ate actors

(2) Congress has to show $iolations in hearings.

(%) ;emed that Congress rooses is congruent and roortional.

"#A$PL"% Congress asses a law stating not to discriminate against eole with disa!ilities.owe$er, the 1'th Amendment onl states not to discriminate irrationall. Congress has gone !eondwhat the amendment for!ids and cannot !e enforced.

"#A$PL"% Congress tells states to ro$ide e5ual unaid lea$e for male and female wor7ers tocare for famil mem!ers. /he 1'th Amendment states not to discriminate against eole on the!asis of se unless it is su!stantiall related to an imortant go$ernment interest. /he #uremeCourt held this law constitutional.

c. If there is $alid 1'th or 1+th Amendment legislation, Congress can o$ercome so$ereign immunit, which it

cannot do otherwise.

1K. elegation of Power

a. Congress can create: an agenc and gi$es agenc the ower to ma7e rules that has force of law

!. Limitation: /his is constitutional as long as there is some intelligi!le rincile that guides agenc.


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. "Decuti!e Power (OL II. @.)

1. Chief "Decuti!e

a. /he 6resident is the chief eecuti$e and he has the following owers:

(1) "nforcement of Laws

(a) /he 6resident can enforce laws, !ut he cannot ma7e them.

(2) Appointment Power

(a) /he 6resident aoints high le$el officials such as Am!assadors and Ca!inet mem!ers with the

ad!ice and consent of the Senate.

/he residential aointment ower should !e construed as a limitation on the congressionalaointment ower. It cannot aoint mem!ers to an agenc or commission with administrati$e

owers.

(!) Congress can delegate the aointment of 9inferior officers to:

1) 6resident

2) Courts

%) eads of 0ecuti$e deartments

(c) An 9inferior officer is anone who has a suerior.

(%) *emo!al Power

(a) 0ecuti$e officials: 6resident has ower to remo$e them without cause or at will.

(!) 0ecuti$e officials ha$ing fied terms: Congress can gi$e fied terms and the 6resident can onl

remo$e these officials for cause. /his is true for judicial or 5uasi judicial officials such asadministrati$e law judges.

(c) -ederal judges: Article III. 6resident cannot remo$e them at all. Onl imeachment.

(d) Congressional aro$alFremo$al: Congress cannot gi$e itself the ower to remo$e an official

(e) 0>C06/IO?: #ecial rosecutor in$estigating the 6resident cannot !e remo$ed ! 6resident

(') 4eto Power

(a) Meto 6rocess: 6resident has 1 das to act through signing or $etoing a !ill assed ! Congress.

?ot acting means !ill !ecomes law.

1) 6oc7et Meto: If the Congressional term eires !efore the 1da eriod is o$er, then the !illdies.

(!) Congressional O$erride: 2F%s majorit $ote in ouse or $eto

(c) A lineitem $eto: "nconstitutional.

@icameralism and resentment are the onl was in which a !ill can !ecome a law. A legislati$e$eto is unconstitutional (i.e. the law is 9 !ut if congress wants to change it the can change itwithout the resident4s signature).

(+) Pardon Power

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(a) /he 6resident ma grant ardons.

(!) Limitations:

1) 6ardon ower etends onl to offenses against the ".#. i.e. not ci$il lia!ilit and not crimes

against the state.

2) 6ardon ower cannot undo imeachment or restore someone to office.

,PO(,"(&CAL

As one of his last acts in office, 6resident @artlett a!sol$es all the officials in his administration of their erjur charges

arising from an -@I in$estigation, and all his major camaign donors from their #0C infractions8 and, in a gesture to his firm

!elief against caital unishment, he ardons e$er death row inmate in the "nited #tates. Are these ardons roerB

He %a+ (ar$o+ o11e+ses a*a)+st the U.S. )+%'&$)+* (er2&r# %har*es a+$ SEC

)+1ra%t)o+s" b&t %a++ot (ar$o+ $eath ro )+mates )1 the# are se+te+%e$ a+$

serv)+* (&+)shme+t &+$er state 'a.

(K) "Decuti!e Pri!ilege

(a) A!solute ri$ilege: 6resident can refuse to disclose secrets a!out national securit secrets

(!) 6resumti$el ri$ileged: Other confidential communications are resumti$el ri$ileged and

weighed against urose for which the information is demanded.

"#A$PL"% /he federal court su!oenaed taes of ?ion and his ad$isors, and the #uremeCourt said this was o7a.

"#A$ (&$"%?ion alwas loses.

2. Commander in Chief

a. /he 6resident is the Commander in Chief of the militar. 6resident wages war.

(1) $ilitary Powers

(a) Congress has the ower to declare war. If Congress has not done so, the 6resident4s owers are

limited to:

1) ;esond to attac7s with militar force !ut not initiate wars.

(!) If the 6resident and Congress disagree, the 6resident re$ails onl with resect to

1) @attlefield tactical decisions.

%. &nternational Affairs

a. (reaty Power

(1) /he 6resident has the ower to ma7e treaties with the consent of the #enate. /he #enate must ratif the

treat ! a 2F% $ote !efore it !ecomes effecti$e.


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(2) /reaties and -ederal Law: A treat will re$ail against an earlier federal statute.

(%) /reaties and state law: /reaties ALAN# win state law

!. "Decuti!e Agreements

(1) /he 6resident has the ower to enter into eecuti$e agreements with foreign nations.

(2) 0ecuti$e agreements are the sole resonsi!ilit of the 6resident, and need not !e ratified ! the

#enate.

(%) -ederal statutes: 0ec agreements lose if there is conflict.

(') #tate Law: 0ec agreement wins if there is conflict.

"#A$PL"% /he 6resident can use an eecuti$e agreement to settle claims ".#. citi&ens ha$eagainst a foreign countr.

C. &nter+ranch Chec:s upon the "Dercise of Federal Power (OL II. C.)

1. Congressional Limits on the "Decuti!e

a. /eneral *ule: If Congress has enacted a $alid law, the Congress wins. 6resident is not a!o$e law.

"#A$PL"% /here is a threat of stri7e at steel mills during wartime and the 6resident decides to sei&ethese mills desite federal laws stating he cannot do so. Courts ha$e found this to !e unconstitutional.

"#A$PL"% /he 6resident sets u militar courts on his own in order to tr susected terrorists, Ignoring$alid federal law esta!lished ! Congress. Again, this is unconstitutional and Congress wins. /he6resident can as7 authorit from Congress to set u these militar courts and that would ha$e !eeno7a.

!. &mpeachment Power

(1) Congress can remo$e the 6resident from office. It can also remo$e federal judges and an federalofficial.

(a) /he ouse of ;eresentati$es: ouse imeaches ! majorit $ote.

(!) /he #enate: #enate has sole ower to conduct trial

(c) hat can get ou imeached:

1) /reason

2) @ri!er

%) Other high crimes and misdemeanors

In ractical terms, Courts will not interfere with Congressional ower to imeach.

c. Appropriations Power

(1) here Congress ! legislati$e act elicitl directs the 6resident to send aroriated mone, the

6resident has no ower to imound (i.e., refuse to send or dela sending) the authori&ed funds.

"#A$PL"% If Congress does not want an


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can sa no federal funds ma !e used to transort risoners to ".#. /his will re$ent the 6residentfrom doing otherwise.

2. Presidential Limits on Congress

a. Meto: @efore law enacted, 6resident has to enact.

!. 6ardon ower: 6resident can undo laws.

%. Judicial Limits on Congress and the President

a. /he onl thing a court can do is to: decide cases.

Duestion %

A stud conducted ! a ashington 9thin7 tan7, re$ealed that $oter registration of isanic citi&ens has not 7et ace with

the increase in the isanic oulation. In fact, $oter registration of such citi&ens shows an 11E decline o$er the re$ious

decade, whereas the isanic oulation increase o$er the same eriod should ha$e resulted in a %GE increase.

/he stud also found that some isanic citi&ens who failed to register to $ote ga$e as a reason the !elief that registration

was a comlicated rocess that the were una!le to understand, and that it re5uired time awa from wor7 that the could notafford to ta7e. In resonse to the stud, Congress enacted a law ermitting $oter registration ! mail, with all mailings to

ro$ide instructions in fi$e languages, including #anish.

Congressional authorit to enact such legislation deri$es from:

A) the congressional ower to regulate for the general welfare.

@) the 0na!ling Clause of the 1%th Amendment.

C9 the "na+ling Clause of the @?th Amendment.

=) the 0na!ling Clause of the 1+th Amendment.

CON5RESS CAN ONL! TA3 AND S4END FOR 5ENERAL WELFARE.

Duestion '

Congress, ! a unanimous $ote, declared war on the ;eu!lic of -reedonia. /he #ecretar of the "nited #tates ?a$

informed the 6resident of the "nited #tates that dolhins could !e used as minesweeers along the -reedonian coastline.

/he 6resident issued an eecuti$e order that ro$ided for the sei&ure of all dolhins from American a5uariums. /he

eecuti$e order did not eressl ro$ide for comensation to the a5uariums. Congress had re$iousl enacted $arious

marine mammal a!use laws which rohi!it an erson from 7nowingl lacing cati$e dolhins at su!stantial ris7 of harm.

After the 6resident4s eecuti$e order, Congress considered, !ut failed to ass, a !ill countermanding the order. /he

American A5uarium Association, on !ehalf of all American a5uariums, and the -lier -und, an ad$ocac grou interested in

dolhin safet, filed suit in -ederal =istrict Court to enjoin the sei&ure of the dolhins. Assuming the laintiffs ha$e standing,

how should the court ruleB

A) /he eecuti$e order is constitutional !ecause the sei&ure does not discriminate !etween u!licl and ri$atel owned

a5uariums.

@) /he eecuti$e order is constitutional !ecause the 6resident of the "nited #tates, as CommanderinChief, has the

ower to sei&e ri$ate roert during wartime.

C) /he eecuti$e order constitutes an unconstitutional ta7ing !ecause the eecuti$e order did not ro$ide for

comensation for the a5uariums.

9 (he eDecuti!e order is unconstitutional +ecause it conflicts with the marine mammal a+use law enacted

+y Congress.

/a7ings clause does not !loc7 go$ernment from ta7ing roert !ut onl ro$ides for comensation.


16/48


17/48

III. THE RELATION OF THE NATION AND THE STATES IN THE FEDERAL S!STEM

A. )ature and Scope of Federal and State Powers (OL III. A.)

1.


18/48

/he 1th Amendment

It does not matter if a state is ha to o!e the federal go$ernment regarding legislation or enforcement of alaw. It is still unconstitutional.

/he sending clause can often !e used here instead to achie$e the same result.

It is not commandeering to for!id the states from doing something. /his is e$en true if the rohi!ition etendsto state so$ereign functions.

"#A$PL"% Congress enacts a law regulating the urchase of guns ! re5uiring eole who do soto consent to a !ac7ground chec7. Congress orders state law officials to enforce the law. /his lawis unconstitutional.

"#A$PL"% Congress enacts a law that re5uires state legislatures to enact rograms to disose ofnuclear waste. /his is unconstitutional !ecause Congress is ordering state legislatures to legislate.

"#A$PL"% Congress enacts a law that rohi!its race discrimination in emloment. /his is agenerall alica!le rohi!ition and not unconstitutional as it is not a so$ereign function.

C. Authority *eser!ed for (he States (OL III. C.)

1. ormant Commerce Clause: #tates cannot discriminate against out of state goods or economic acts. -acialdiscrimination is usuall in$alid a!sent comelling interest.

a. S(*&C( SC*0(&) FO* FAC&ALL &SC*&$&)A(O* LA1S%If a state law discriminates on its face

against outofstate goods or economic actors, the state must show:

(1) /he regulation ser$es a comelling interest8 and

(2) /he regulation is necessar to the comelling interest

"#A$PL"% 3aine !ans imortation of outofstate !ait fish to reser$e 3aine fisheries from the

arasites in the !ait fish. /his asses the strict test a!o$e.

!. ALA)C&)/ ("S( FO* FAC&ALL )"0(*AL LA1S%If a state law merel incidentall !urdens interstate

commerce, the state must show:

(1) Imortant state interest

(2) ?o ecessi$e !urden

"#A$PL"%A =etroit smo7e a!atement ordinance that alies to shis tra$eling in interstatecommerce was uheld as a $alid health measure.

"#A$PL"%A state law limiting the length of truc7s tra$eling on state highwas or trains rolling throughthe state is unconstitutional !ecause the regulation undul !urdened interstate commerce, and the statefailed to demonstrate an significant safet !enefit.

c. "#C"P(&O)S%

(1) Congressional authori&ation

(2) 3ar7et articiant doctrine

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19/48

"#A$PL"% ?ew Nor7 #tate enacts legislation saing the olice deartment must !u uniformsfrom instate suliers. /his law discriminates on its face8 howe$er, this is a mar7etarticiantecetion.

,PO(,"(&CAL

A state legislature, at the urging of the melon farm lo!!, enacted a secific 3elon 6ac7ing Act to ensure that melons grown i

state were safel transorted, hence reser$ing the highl aealing aearance for which the state4s melons were 7nown.

/he Act, which re5uired secial rotecti$e ac7s, affected onl melons that were grown in state. -armer sued for injuncti$e

relief, claiming the act $iolated the Commerce Clause. ow would a court ruleB

I1 the 'e*)s'at)o+ a((')e$ o+'# to o&t o1 state me'o+s" the+ )t o&'$ be s&b2e%t to

str)%t s%r&t)+# as )t o&'$ be 1a%)a''# $)s%r)m)+ator#. I1 )t a((')e$ to a'' me'o+s"

the+ )t o&'$ be 1a%)a''# +e&tra' a+$ s&b2e%t to ba'a+%)+* test to sho ho )t

as a+ )m(orta+t state )+terest )th +o e6%ess)ve b&r$e+. Hoever" the

'e*)s'at)o+ at ha+$ a((')es to o+'# me'o+s *ro+ )+ the state" +ot )m(a%t

)+terstate %ommer%e" a+$ a((')es to me'o+s *ro+ )+ the state o+'#" so )t $oes

+ot v)o'ate the %ommer%e %'a&se as )t $oes +ot b&r$e+ )t be%a&se )t )s +ot a+

)+sta+%e o1 state tr#)+* to 1avor 'o%a's at e6(e+se o1 o&t o1 states.

d. /he dormant commerce clause alies to state taes. #tates can ta interstate commerce as long as not

faciall discriminator and so long as it does not !urden interstate commerce.


20/48

IV. T!4E OF ACTION 5OVERNED B! CONSTITUTION

A. State Action !ersus Pri!ate Action (OL IM. A.)

1. /he state action re8uirement: Onl the go$ernment can $iolate the Constitution.

a. /here are two ecetions to the rule that constitutional rights can !e $iolated onl ! go$ernmental action.

#tate action can !e found in the actions of ri$ate actors under:

(1) the u!lic function theor: ri$ate actor erforming a function that is traditionall done ! the go$ernment

"#A$PL"%A ri$ate coman owned an entire town. A mem!er of the eho$ah4s itnesses wasarrested and con$icted of $iolating a state tresass law that made it a crime 9to enter or remain onthe remises of another. /he #ureme Court re$ersed the tresass con$iction !ecause the town4sstreets, although ri$atel owned, were the functional e5ui$alent of cit streets. /he #ureme Courtheld that the coman4s actions were in $iolation of the 1st and 1'th Amendments !ecause neithera state nor a ri$ate owner can totall !an the eression of free seech.

"#A$PL"% /he #ureme Court ruled that the 9coman town rationale did not al to a ri$atel

owned shoing center.

,PO(,"(&CAL

3a wor7s as a waiter for the AllAmerican cruise line, a domestic cruise line sailing !etween 3iami and Los Angeles $ia

the 6anama Canal. e li$es on the !oat for two months at a time, with three das off in !etween. e decided to start an

organi&ation for oliticall acti$e emloees, !ut was told that he could not do so while on the !oat. e sues, claiming his

that -irst Amendment rights ha$e !een $iolated. ill he !e successfulB

The %r&)se a((ears to be a (r)vate a%tor a+$ s)+%e o+'# state a%tors %a+

v)o'ate the Co+st)t&t)o+" he ma# +ot )+ &+'ess the (r)vate %r&)se ')+e %a+ be

%o+s)$ere$ a state a%tor 1or a %o+st)t&t)o+a' v)o'at)o+. He o+-t s&%%ee$

&+'ess he %a+ sho that boat )s a (r)vate %om(a+# to+.

(2) /he significant state in!ol!ementtheor: If the ri$ate action is closel suorted and encouraged !

the state, then the state can !e held resonsi!le for what the ri$ate actor does

"#A$PL"%A ri$atel owned restaurant rents sace in a go$ernment !uilding. /he go$ernment

lanned for commercial renters, !uilt the restaurant dPcor, as for its u7ee and gi$es it some ta!rea7s. In this case, the restaurant was rohi!ited from discriminating against racial minorities!ecause it was found to !e wor7ing sufficientl close with the go$ernment to !e considered a stateactor.

"#A$PL"% /he #ureme Court found state action !ecause of the 9entwinement !etween a state and ari$ate organi&ation that regulates athletic cometitions in u!lic schools.

"#A$PL"% owe$er, state action was not found where the go$ernment granted a li5uor license toa ri$ate clu! that raciall discriminated. /he same is true of the go$ernment granting a charter to acororation.

!. /he 1%th Amendment: ?o state action re5uirement.


21/48

V. DUE 4ROCESS AND THE INCOR4ORATION OF 4ORTIONS OF THE BILL OF RI5HTS

3ultile choice 5uestions on this toic will resent themsel$es in two different forms. /he first as7s what isthe !est source for an argument that a articular law is unconstitutional. -or this, as7 whether theconstitutional ro$ision rotects from the states or from the federal go$ernment. /he second te of5uestion as7s whether a law is constitutional. -or this, loo7 to the actual content of the indi$idual

rights.

A. 1hich Constitutional Pro!ision Should e *elied OnE (OL M. A.)

1. /he @ill of ;ights can !e in$o7ed against the federal go$ernment, also 7nown as the first ten amendments.

a. &f the federal go!ernment is discriminating6 the ue Process Clause of the Fifth Amendment should +e

in!o:ed.

2. Against the states, the 1'th Amendment =ue 6rocess Clause should !e in$o7ed.

a. /here are just three ro$isions of the @ill of ;ights that cannot !e asserted $ia the 1'th Amendment =ue6rocess Clause:

(1) ;ight to indictment ! grand jur

(2) ;ight to jur trial in ci$il case

(%) 0cessi$e fines clause from 0ight Amendment

!. -or discrimination ! state go$ernments, usuall the 05ual 6rotection Clause of the 1'th Amendment will

al unless:

(1) Misitors Article IM ri$ileges and immunities

(2) 3igrants 6ri$ileges and Immunities of 1'thAmendment

/he 6ri$ileges and Immunities Clause of the 1'th Amendment is fre5uentl a wrong answer on the [email protected]$er, t it ma !e a right answer with regard to the right to tra$el and ma7e home in new state.

. Content of the *ights (OL M. A.)

1. ue Process Clause

a. /he 1'th Amendment =ue 6rocess Clause allows the @ill of ;ights to !e in$o7ed against the states whereas

the =ue 6rocess Clause of the -ifth Amendment alies directl to the federal go$ernment.

!. owe$er, !oth offer the following 7inds of rotection:

(1) 6rocedural due rocess

(2) #u!stanti$e due rocess

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/I6

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22/48

c. Procedural ue Processrotects: ersons against deri$ation of life, li!ert or roert without due rocess

of law.

(1) ho counts as a erson who can assert rightsB

(a) All eole

(!) Cororations

(2) hat counts as life, li!ert or roertB

(a) Li+ertyis: !roadl defined i.e. interest in !eing free from !odil restraints and unishment.

(!) Propertyis narrower. If the state can ta7e something awa from a erson for no reason at all, there

is no roert interest. /here are generall roert interests in the following:

1) 6u!lic education

2) 6u!lic emloment:go!ernment wor:er

a) /enure or /ermination for cause means there is roert interest.

!) At will emloees at no roert interest

%) elfare !enefits

') =ri$er4s License

,PO(,"(&CAL

arold is a unioni&ed custodian for the cit4s !uildings deartment. In a costcutting mo$e, the cit decides to outsource

maintenance and let arold go. e sues, claiming a roert interest in his jo! !ecause of the 9just cause ro$ision of

his union contract. ill he !e successful in his challengeB

!es. He )s a *over+me+t or/er )th a term)+at)o+ 1or %a&se %'a&se )+

%o+tra%t" h)%h mea+s he has a (ro(ert# )+terest )+ h)s 2ob that %a++ot be

$e(r)ve$ )tho&t $&e (ro%ess.

(c) Life

1) Interest in life, i.e. when the go$ernment wants to 7ill a erson.

(%) hat rocess is dueB hat 7ind of rocedure does the go$ernment ha$e to follow in order to !e a!le to

deri$e a erson or cororation of life, li!ert or roertB

(a) /he go$ernment must gi$e two things !efore an deri$ation:

1) Ade5uate notice

2) Ade5uate hearing


23/48

(!) /o determine what is ade5uate notice and what is an ade5uate hearing, the court will !alance three

factors:

1) Imortance of rotected interest

2) ;is7 of error

%) @urden on the go$ernment to ro$ide rocedural rotection

d. Su+stanti!e ue Process

(1) /hese rights are not selled out in the constitution. /he are unenumerated.

#CA360;= #eual orientation, contracetion, a!ortion, marriage, ossession of o!scene material,

education, relati$es, death.

(2) "conomic *egulation

(a) #u!stanti$e due rocess rights are not economic.

(!) 0conomic regulation ! the states or the federal go$ernment onl has to meet rational !asis re$iew.

1) *ational +asis re!iew: 6 must show that go$ernment interest is not rationall related to an

legitimate go$ernment interest.

a) @oth o$erinclusi$e and underinclusi$e laws will meet rational !asis re$iew.

(%) Strict Scrutiny: if the go$ernment wants to regulate ersonal rights, then it has to meet the highest le$el of scrutin,

strict scrutin. /he strict scrutin re5uires the go$ernment to show:

(a) Comelling interest

(!) ?o alternati$e wa to achie$e8 necessar to meet comelling interest8 narrowl tailored.

(') Fundamental *ightsQfirst some elements of 9ri$ac:

(a) Contracetion

(!) 3arriage

(c) A+ortion

1) A woman has a rotected ri$ac interest in choosing to ha$e an a!ortion !efore the fetus is

$ia!le.

2) An regulation on a re$ia!ilit a!ortion is unconstitutional if it imoses an undue +urdenon

a woman4s right to choose an a!ortion.

%) 0amles of undue !urden:

a) total !an

!) sousal consent


24/48

c) sousal notification

d) recording atient names

e) arental consent without judicial !ass

') =oes not create an undue !urden:a) arental consent with judicial !ass

!) 2' hour waiting eriod

c) truthful, non misleading info.

d) refusing u!lic funds

e) !an on certain methods if not the safest

+) 0$en su!se5uent to $ia!ilit: An a!ortion ost$ia!ilit 3"#/ ha$e ecetion forrotecting women4s life.

(d) Family *elations

1) /he go$ernment cannot rohi!it mem!ers of an etended famil from li$ing in a single

household.

2) /he state can !an unrelated ersons from li$ing together in a single famil residence.

(e) SeDual Orientation

1) omoseual sodom: go$t. cannot criminali&e ga conduct

2) Le$el of scrutin: rational !asis re$iew !ut it would !e held unconstitutional.

(f) Pri!ate "ducation

1)


25/48

2) /he right to international tra$el: not a!solute

(j) *ight to 4ote not a pri!acy right9

1) 3ostl, the right to $ote comes from the -irst Amendment ;ight of Association and the 1'th

Amendment. owe$er, there are some more secific amendments set out in the constitution

regarding the right to $ote:

a) 1+th Amendment: ?o race discrimination in $oting

!) 1th Amendment: ?o se discrimination in $otingc) 2'th Amendment: ?o oll taes in federal elections8 states also co$ered

d) 2Kth Amendment: ?o age discrimination a!o$e 1G in $oting.

2) Le$el of #crutin: If there is a total !an, strict scrutin. 3ore li7el to see regulations and

rocedure such as $oter I= use a !alancing test such as no undue !urden.

%) ;estrictions which are constitutional:

a) ;easona!le residenc re5uirements

!) ;easona!le registration re5uirements

c) ;easona!le time and manner regulations

d) -elon disenfranchisement

') ;estrictions which are unconstitutional:

a) 6oll taes

!) #chool !oard elections limited to arents and roert owners

c) Cannot count $otes using standards that are $ague and not uniform.

,PO(,"(&CAL

A state has recentl enacted a statute that allows $oters to not register as a mem!er of a olitical art. owe$er, in a

residential election onl mem!ers of a registered olitical art ma $ote. Aamir, a $oter not registered with a olitical art,

sues for the right to $ote in a residential election. ill he !e successfulB hat if Aamir were suing for the right to $ote in a

rimar electionB

States %a++ot )m(ose vot)+* (ro%e$&res that )m(ose a+ &+$&e b&r$e+ o+

voters. Here" there )s a+ &+$&e b&r$e+ to a11)')ate )th (o')t)%a' or*a+),at)o+ )+

or$er to vote )+ 4res)$e+t)a' e'e%t)o+ a+$ )t )s +ot %'ear hat the state )+terest

)s )+ ma/)+* Aam)r 2o)+ a (art)%&'ar (art# )+ or$er to vote. Aam)r o&'$ most

')/e'# )+ r)*ht to vote )+ 4res)$e+t)a' e'e%t)o+s. Hoever" 1or (r)mar# e'e%t)o+s

are $)11ere+t as the (o')t)%a' (art# %a+ $ra the ')+e a+$ sa# that o+'# members

o1 the (art# sho&'$ e'e%t the re(rese+tat)ve o1 the (art# )+ e'e%t)o+s.


26/48

+) 6residential 0lections: #tates elect electors8 0lectoral College chooses 6resident.

(7) (a:ings Clause:the -ifth Amendment ro$ides that the federal go$ernment cannot ta7e ri$ate

roert for u!lic use without just comensation. /his rohi!ition alies to the states as well,

through the =ue 6rocess Clause of the 1'th Amendment. /a7ings clause does not sto the

go$ernment from ta7ing roert !ut re5uires go$ernment to comensate.

1) /wo 7inds of ta7ings:

a) =irect go$ernment aroriation:


27/48

VI. E7UAL 4ROTECTION OF THE LAWS

A. Constitutional asis (OL MI. A.)

1. here does it come fromB

a. -or the states: -ourteenth amendment

!. -or the federal go$ernment: -ifth amendment due rocess clause

2. 05ual rotection re5uires the go$ernment to justif when it discriminates.

. Standards of *e!iew (OL MI. @.)

-or an e5ual rotection 5uestion, identif: (1) the te of discrimination and (2) identif andFor al the le$elof scrutin attached to that discrimination.

1. *ational +asiswill !e the le$el of re$iew in situations of disarate imact. =isarate imact, ! itself, is not

discrimination.

"#A$PL"% If an emloer administers a test to see which emloees are eligi!le for romotion, and it is neutralon its face, !ut one race scores higher than the other, there is no discrimination.

a. #tandard of re$iew: 6laintiff must show what go$ernment has done not rationall related to an legitimate

interest. @urden is on the 6laintiff.

!. /wo ecetions:

(1) Intentional disarate imact a$e to show emloer intended to discriminate through the test

(2) =iscriminator alication ?eutral standard enforced in a discriminator wa.

c. ;ational !asis re$iew alies to all classifications not falling under strict or intermediate scrutin, such as

classifications !ased on age, disa!ilit, and alienage if done ! Congress.

d. /he go$ernment generall re$ails when rational !asis re$iew is alied

(1) "#C"P(&O)%=iscrimination in seual orientation and criminal law

2. &ntermediate scrutiny:

a. Intermediate scrutin alies to go$ernment discrimination regarding se and illegitimac.

%. Strict scrutiny:

a. /he go$ernment usuall fails to ro$e its !urden under strict scrutin.

"#A$PL"% 3assachusetts has a law that re5uires olice officers retire at age +. /his is discrimination!ased on age, and thus, rational !asis will al and the laintiff will lose.

"#A$PL"%A state rohi!its samese seual conduct !ut not heteroseual seual conduct. ;ational !asis isalied, !ut this will !e struc7 down. /here is no legitimate interest.

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28/48

/0 /;00 #/A?=A;=# O- #C;"/I?N

*ational asis &ntermediate Scrutiny Strict Scrutiny

6laintiff must ro$e no rational

relation to an legitimate

go$ernmental interest


29/48

minoritowned construction comanies !ecause, in the ast, the state had discriminated in the

area of construction.

(!) =i$ersit in higher education

1) ?arrow tailoring: race can !e one factor among man with no fied weight or 5uota

"#A$PL"% In efforts to achie$e a di$erse student !od, a uni$ersit can ta7e race into account, !ut

it cannot ha$e a fied weight (i.e., a 5uota or award a certain amount of oints for race) !ecause

that would not !e narrowl tailored

"#A$PL"% /he Court ruled that a school district ma not assign indi$idual students to schools

!ased on race in order to achie$e 9$oluntar integration or 9racial !alancing, when school

segregation is caused ! social factors (de facto segregation) and not caused ! ast or resent

go$ernment action (de jure segregation). owe$er, a school district is ermitted to carr out such

$oluntar racial !alancing ! 9structural measures, such as redrawing school &ones or !uilding

new schools, that do not use o$ert classifications.

c. Alienage iscrimination +y States

(1) #trict scrutin if states do it. -ederal go$ernment gets rational !asis re$iew.

"#A$PL"% #tates cannot issue commercial fishing licenses to ".#. citi&ens, !ut not residentaliens.

"#A$PL"% #tates cannot den financial aid for higher education to resident aliens.

(2) Pu+lic Function "Dception%

(a) 6olice officials

(!) A3

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30/48

,PO(,"(&CAL

After Alan4s death, !oth Lucia and I$an claimed the right to ta7e under Alan4s will, which merel said that his +, shares in I@3

will !e left to 9his children then ali$e. Lucia claims I$an cannot ta7e !ecause of a state statute re5uiring illegitimate children to

ro$e aternit !efore the arent4s death or otherwise not ta7e at all. I$an claims his father had an affair with his mother. hat

analsis will the court ta7eB

State stat&te that $e+)es )''e*)t)mate %h)'$re+ 1rom shar)+* e0&a''# are

$eeme$ &+%o+st)t&t)o+a' )tho&t (rov)$)+* s&bsta+t)a''# re'ate$ to )m(orta+t

*over+me+t )+terest. Here" there )s a+ )m(orta+t *over+me+t )+terest 88

$)v)$)+* &( estate 9 a+$ the ')m)ts (ose$ o+ )+her)t)+* the estate to o+'#

'e*)t)mate %h)'$re+ )s re'ate$ to $)v)$)+* &( the estate. There1ore" 'a o&'$

(robab'# s&rv)ve )+terme$)ate s%r&t)+# be%a&se )t )s s&bsta+t)a''# re'ate$ to

the )m(orta+t *over+me+t )+terest o1 $)v)$)+* &( the estate %orre%t'# a1ter

$eath.

!. SeD iscrimination: laws that treat men and women differentl must meet intermediate scrutin.

(1) 0amles where such laws were held to !e unconstitutional:

(a) 0state administration

(!) 3ilitar housing

(c) Alimon

(d) =rin7ing age

(2) 0amles where such laws were held to !e constitutional:

(a) =raft

(!) #tatutor rae

If the eam as7s a 5uestion in an area that is not settled, then state, 9/he Court seems to !efocusing on the 5uestion of whether the discrimination is moti$ated ! or reinforces traditionalstereotes a!out aroriate se roles. If the discrimination is moti$ated or reinforced ! suchstereotes, it will most li7el !e unconstitutional.

c. Affirmati!e Action

(1) ;ace!ased affirmati$e action strict scrutin

d. Le$el of scrutin for gender !ased affirmati$e action: intermediate scrutin

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31/48

"#A$PL"% #ocial #ecurit statutes and ta eemtions that entitle women to greater !enefits wereuheld.

"#A$PL"%A ".#. na$ discharge rocedure that re5uired male officers, twice denied romotion to !eautomaticall discharged whereas female officers were not, was uheld !ecause in the ast, men had !eenafforded greater romotional oortunities than women.

(1)


32/48


Duestion +

A fastfood restaurant chain wanted to construct a restaurant on ;oute '', a !usiness&oned, secondar road running

through the town. /he chain ser$es ethnic cuisine. It had urchased a !uilda!le lot with sufficient frontage and su!mitted

engineering and architectural lans to the aroriate town authorities. /he !uilding insector, !ac7ed ! the town lanning

!oard, denied the restaurant chain4s alication for a !uilding ermit, stating the following reasons in a written decision: (1)

;oute '' cannot sustain an further traffic entering and eiting !usinesses on the road8 (2) ;oute '' currentl has 1* fast

food restaurants, fi$e of which are in the immediate $icinit of the chain4s lanned location8 and (%) the location of theentrance to the lanned chain eater is too close to a dangerous intersection. In a letter to the town lanning !oard mem!ers

and !uilding insector, the fastfood chain re5uested an oortunit to address each of the stated reasons for the denial of

the !uilding ermit, !ut the town authorities resonded that the decision was final. /he chain then sought a declarator

judgment of its right to address the ermit denial.

If the chain o!tains declarator relief, it will !e !ased on rights guaranteed under:

A) su!stanti$e due rocess.

@) e5ual rotection.

C) the /a7ings Clause.

9 the Fourteenth Amendment.

Duestion K

Conditions in an alread o$ercrowded federal rison deteriorated e$en further with the influ of a large num!er of Cu!an

risoners. -actions formed within the walls of the rison, and $iolent out!ursts eruted !etween indi$iduals and small grous

with different ideological ersuasions. #ome of the $iolent incidents were tracea!le to ersonal animosit, !ut other disrutions,

including two nearl fatal sta!!ings, resulted from racial tensions. 3o$ing to a$oid a further escalation in $iolence, rison

authorities searated the cell!loc7s ! race, with isanic, AfricanAmerican, and Caucasian risoners each in a different

cell!loc7. Authorities also transferred some of the risoners to another federal facilit to reduce o$ercrowding. One risoner, an

instigator of some of the ast $iolence who is uset that his closest friend is now in another cell!loc7, files suit against rison

authorities for the segregation of risoners ! race.

In the risoner4s constitutional challenge, he will li7el:

A) not re$ail, if the searation of risoners ! race was rationall related to a legitimate go$ernment goal of 5uelling

$iolence.@) not re$ail, !ecause the rights of risoners are outweighed ! the rison authorities4 need to maintain order within the

rison.

C9 pre!ail6 if prison authorities could ha!e used alternati!e means to pre!ent further !iolence without !iolating

prisoners5 e8ual protection rights.

=) re$ail, !ecause rison authorities $iolated risoners4 0ighth Amendment rights ! deri$ing them of confinement in

their regularl assigned cell!loc7s.


33/48

VII. 4RIVILE5ES AND IMMUNITIES CLAUSES

A. Pri!ileges and &mmunities under the @?th Amendment (OL MII. A.)

1. 9?o #tate shall ma7e or enforce an law which shall a!ridge the ri$ileges or immunities of citi&ens of the "nited

#tates H1'th Amendment.

2. /he 6ri$ileges and Immunities Clause of the 1'th Amendment has $er limited alication and includes rimaril

the right:

a. ;ight to tra$el to !ecome resident of new state

%. Cororations are not rotected under the 1'th Amendment 6ri$ileges and Immunities Clause.

. Pri!ileges and &mmunities under Article &46 Section B (OL MII. @.)

1. #ometimes referred to as the Comit Clause, Article IM, section 2 ro$ides: 9/he Citi&ens of each #tate shall !e

entitled to all 6ri$ileges and Immunities of Citi&ens in the se$eral #tates.

2. /his clause rohi!its states from discriminating against nonresidents (!ased uon the fact that the do not reside

in the state) with resect to rights and acti$ities that are fundamental to the national union.

a. /he following ha$e !een held to !e in$alid forms of nonresident discrimination:

(1) commercial licenses

(2) commuter taes

(%) a!ortion

(') emloment

!. /he 6ri$ileges and Immunities Clause does not rotect a nonresident against all forms of discrimination. /he

following tes of nonresident discrimination ha$e !een uheld:

(1) recreational license

(2) instate natural resources

%. /he test: the state can treat out of staters differentl if the discrimination is su!stantiall related to imortant state

interest, much li7e intermediate scrutin.

'. Cororation cannot assert these rights. A cororation is not a citi&en. A cororation can rotect itself from such

discrimination with the =ormant Commerce Clause.


34/48

,PO(,"(&CAL

Oosh and @rian, a coule li$ing in ?ew Oerse !ut emloed in ?ew Nor7, ha$e filed suit o$er a commuter ta charged on

non?ew Nor7 state residents when the tra$el into ?ew Nor7 Cit. ?ew Nor7 claims residents a through a state income ta

not imosed on outofstate residents. ill their suit !e successfulB

Comm&ter ta6es v)o'ate the (r)v)'e*es a+$ )mm&+)t)es %'a&se o1 the

Fo&rth Ame+$me+t" )1 'o%a's are +ot s)m)'ar'# ta6e$. The)r s&)t ma# bes&%%ess1&'.


35/48

VIII. RETROACTIVE LE5ISLATION

A. (he Contract Clause(OL MIII. A.)

1. 9?o state shallUass anULaw imairing the O!ligation of Contracts HArticle I, section 1.

a. /he Contract Clause alies onl to state legislation, and not to state court decisions. ?or does the Contract

Clause al to the federal go$ernment.

!. In determining whether a contract ma !e modified, the Court will consider:

(1) #e$erit of imairment against

(2) Imortance of interest

"#A$PL"%A state law imosing a moratorium on mortgage foreclosures during the deression

was uheld."#A$PL"%A state attemted to use transit authorit funds to su!sidi&e u!lic transortation in$iolation of a re$ious statutor co$enant to ri$ate !ondholders. /his was held unconstitutional.

"#A$PL"% /he Court in$alidated state ension reform legislation which increased the o!ligation ofcomanies under reeisting ension lans.

. Ex Post Facto Laws(OL MIII. @.)

1. /here are two ex post facto clauses in the Constitution that re$ent !oth the state and federal go$ernments from

assing retroacti$e criminal laws. Article I, section , clause % ro$ides: 9?oUe ost facto Law shall !e assed8

and Article I, #ection 1, Clause 1 ro$ides: 9?o #tate shall ass an e ost facto Law.

a. In general, a statute $iolates the ex post factoclause if it:

(1) ?ew crime

(2) 3ore unishment

(%) Less e$idence

(') Longer limitations etended when ou are in the clear

,PO(,"(&CAL

@o!!ilou was arrested on 3arch 1st for the murder of her hus!and. On une 1st, the state legislature

assed a statute lowering the re5uirements for a jur con$iction in noncaital cases from all 12 jurors to G

of 12 jurors. On August 1st, @o!!ilou was con$icted ! a % decision. ill she !e a!le to o$erturn the

ruling on aealB


36/48

!es" she )''. The state 'e*)s'at&re $e%rease$ the ev)$e+t)ar#

b&r$e+ re0&)re$ to %o+v)%t her b# ta/)+* aa# 2&r# &+a+)m)t#

re0&)reme+t a+$ there1ore v)o'ate$ e6 (ost 1a%to 'as.

C. ills of Attainder (OL MIII. C.)

1. Article I, section , clause % states: 9?o !ill of attainder U shall !e assed8 and Article I, section 1, clause 1

ro$ides: 9?o state shall ass an @ill of Attainder. /hese two ro$isions re$ent !oth federal and state

legislatures from assing !ills of attainder.

2. A !ill of attainder is: legislation that inflicts unishment without trial to named indi$iduals for ast conduct

"#A$PL"% Congress asses a law ma7ing it a crime for a mem!er of the Communist 6art to act as anofficer of a la!or union was the e5ui$alent of legislati$e unishment, and hence a !ill of attainder.

"#A$PL"% Congress asses a law stating that ?ion must turn o$er $arious residential aers and tae

recordings. /his did not constitute a !ill of attainder, !ecause the act was nonuniti$e.

%. An ex post facto law will not single out an indi$idual or a grou whereas !ills of attainder do.

'. @ills of attainder also will not in$ol$e a trial.


37/48

I3. FIRST AMENDMENT FREEDOMS

A. Freedom of *eligion and Separation of Church and State (OL I>. A.)

1. /he -irst Amendment ro$ides that 9Congress shall ma7e no law resecting an esta!lishment of religion, or

rohi!iting the free eercise thereof.

a. /he -irst Amendment alies to !oth the federal go$ernment and the states through the 1'th Amendment.

2. "sta+lishment Clause

a. here a go$ernment rogram refers one religion, or one religious sect, o$er others, strict scrutin analsis

will !e alied.

!. here the legislation or go$ernment rogram is neutral on its face, the #ureme Court will follow the three

art test under Lemon $. Rurt&man H'% ".#. K2 (1*1):

(1) #tatute must ha$e a secular legislati!e purposeG

(2) 6rincile or rimar effect or urose must neither ad!ance nor inhi+it religionG

(%) #tatute must not foster an eDcessi!e go!ernment entanglement with religion.

c. *eligious Acti!ities Conducted at Pu+lic Schools

(1) #chool raer:

(a) /he following ractices in u!lic schools ha$e !een held to !e in$alid:

1) 6er se unconstitutional.

,PO(,"(&CAL

A state statute mandates a short moment of silence for meditation each da in the u!lic school. /he

laintiffs resent no e$idence that the state legislature intended to romote religious raer. Is this

constitutionalB

Th)s )s (robab'# %o+st)t&t)o+a' be%a&se there )s +o re')*)o&s mot)ve

so )t (asses Lemo+ test.

2) /en Commandments

%)


38/48

') igh school foot!all raer

(!) A religious clu! holding its meetings in a u!lic school does not $iolate the 0sta!lishment Clause.

d. Pu+lic School Curriculum

(1) Creationism cannot !e taught net to e$olution

e. Other /o!ernment "ndorsement of *eligion

(1) A cit can include a crVche in a Christmas disla in a ar7. It is for a secular urose. /he cit is just

tring to cele!rate a holida, eseciall where there is also a #anta Clause and cand canes. It is not

religious.

(2) A cit ma grant a license ermitting a ri$ate grou to ut u a cross in a cit ar7 near a statehouse.

(%) 6lacement of the /en Commandments on the walls of courthouses is: unconstitutional

(') 6osting the /en Commandments as a monument along with man other monuments surrounding the

#tate Caitol: constitutional

(+) #unda closing laws: constitutional !ecause secular urose to ro$ide for da of rest

(K) =elegation of authorit to religious organi&ations is unconstitutional.

f. (aD eductions for *eligious &nstitutions

(1)


39/48

(d) Li!rar and media materials, including comuters

(e) Interreters for deaf students

(%) /he state cannot gi$e mone:

(a) ?o mone for religious instruction

(!) ?o mone for secular teachers at secondar schools

1) /his is not true at the uni$ersit le$el. /he states can fund the salaries of secular teachers

!ecause it assumed their rofessional norms will re$ent them from engaging in religious

indoctrination.

(') If a ta deduction is gi$en to all arents !ased on actual eenditures for children attending an u!lic,

ri$ate, or religious school, it will !e uheld.

(+) A $oucher rogram that allows arents to send their children to arochial or religious schools with state

aid instead of to failed u!lic schools is allowed !ecause aid is neutral with resect to religion to a !road

class of citi&ens, defined without reference to religion, and arents direct aid to religious schools as aresult of their own indeendent and ri$ate choice.

h. Pro!iding Pu+lic Ser!ices (hrough *eligious &nstitutions

(1) Congress can gi$e mone for neutral urose

%. Free"Dercise Clause

a. A erson4s religious !eliefs are a!solutel rotected. /he go$ernment ma not unish an indi$idual ! dening

!enefits or imosing !urdens !ased on religious !elief.

(1) /he go$ernment ma not determine the truth or falsit of a erson4s religious !eliefs, !ut it ma determine aerson4s sincerit in his or her claim of religious !elief.

!. here an indi$idual4s conduct is moti$ated ! his religious !eliefs, the state ma regulate or rohi!it the

acti$it if the regulation is neutral in resect to religion and is of general alica!ilit.

(1) In 0mloment =i$ision $. #mith H'' ".#. G*2 (1), the #tate of Oregon: den unemloment

!enefits to a wor7er fired for using illegal drugs for religious uroses, and the #CO/"# uheld it.

c. Other alications:

(1) Airforce regulation that re$ents headgear for emloees

(2) Amish social securit

d. /wo 0cetions ?ot O$erruled in #mith:

(1) #a!!ath o!ser$ance unemloment !enefits

(2) Amish high school


40/48

,PO(,"(&CAL

/he u!lic school district imoses a $er rigid rule eressl for!idding anthing that can !e used as a weaon. Ale comes

to school the following da with a $er large crucifi with shar edges around his nec7. e is susended and wants to

challenge the rule. ow will a court li7el resondB

The law is about conduct as opposed to belief so we use the Smith test. The state may regulate or prohibit the activityif the regulation is neutral in respect to religion and is of general applicability. Second question, this is a neutral rule

applying to anyone so the school will win unless Alex can show that when the school enacted the law, they were tryingto target religion.

. Freedom of "Dpression (OL I>. @.)

1. /he -irst Amendment ro$ides 9Congress shall ma7e no law ... a!ridging the freedom of seech, or of the ress8 or

the right of the eole eacea!l to assem!le, and to etition the go$ernment for a redress of grie$ances.

a. /he -irst Amendment was held alica!le to the states through the =ue 6rocess Clause of the 1'th

Amendment.

,PO(,"(&CAL

3elanie 3arshall, head of the Llama 6resentation #ociet, decided to run an ad$ertisement in the ashington, =.C.,

newsaers a!out the light of the llama. #he arranged for it to run in the aers on the same da Congress was de!ating an

animal rotection law. /he ashington =ail ?ews refused to run the ad, and 3elanie would li7e to sue. ill she successfull

force the aer to rint the adB

No 1)rst ame+$me+t v)o'at)o+ here be%a&se there )s +o state a%t)o+.

2.


41/48

"#A$PL" % /he go$ernment can !an child ornograh, including fa7e child ornograh.

(!) "nrotected or low$alue seech.

(c)


42/48

wor7, ta7en as a whole, aeals to the rurient interest8

ii) /he wor7 deicts or descri!es, in a atentl offensi$e wa, seual conduct

secificall defined ! the alica!le state law8 and

iii) /he wor7, ta7en as a whole, lac7s serious literar, artistic, olitical or scientific

$alue

,PO(,"(&CAL

An ardent antigo$ernment acti$ist, Cind decides to sew an American flag on the rear end of her jeans and arade around

town on ul 'th. A olice officer tells her to remo$e the flag and then arrests her for disorderl conduct when she refuses.

#he claims a right under the -irst Amendment to wear the flag as she sees fit. ow would a court ruleB

Th)s )s %o+te+t8base$ re*&'at)o+ a+$ the %o&rt )'' a(('# str)%t s%r&t)+# a+$ the

('a)+t)11 )'' )+ &+'ess *over+me+t %a+ sho )t )s &+(rote%te$ s(ee%h. It-s +ot

1)*ht)+* or$s" obs%e+e s(ee%h or s(ee%h that a$vo%ates v)o'e+t or &+'a1&'

a%t)o+ so the F)rst Ame+$me+t 1ree e6er%)se a((')es.

+) =efamator seech.

a) Constitutional restrictions al to defamator seech where the laintiff is either au!lic official or u!lic figure, or where the defamator statement in$ol$es a matterof u!lic concern.

i) hen the laintiff is a ri$ate erson and the su!ject of the statement is a matter of

urel ri$ate concern: /his is unrotected categor, and strict lia!ilit can !e

alied.

ii) hen the laintiff is a ri$ate erson and the su!ject of the statement is a matter of

u!lic concern: =efamation cause of action re5uires negligence. #trict lia!ilit not

re5uired.

iii) hen the laintiff is a u!lic official or u!lic figure, the laintiff must ro$e the

state law re5uirements of defamation, lus 9actual malice, defined as 7nowledge of

the falsit or rec7less disregard of the truth or falsit of the statement. /his rule

holds whether the allegedl defamator statement is a matter of u!lic or ri$ate

concern.

i$) If a ri$ate laintiff suing a media defendant for falselight in$asion of ri$ac,

concerning a matter of u!lic interest: the law must re5uire actual malice.

a.In addition, the Court said that a newsaer or !roadcaster cannot !e heldlia!le for u!lishing truthful information o!tained from the u!lic record. Annewsworth and true information is also rotected.

(2) Certain categories of seech recei$e lower le$els of rotection (quasirotected seech):

(a) Commercial seech8 and

1) Commercial seech is rotected ! the -irst Amendment if it is not false or deceti$e and

does not relate to unlawful acti$it. If commercial seech satisfies these re5uirements,

go$ernment regulation of the seech must satisf the threeart test:

a) ser$es a su!stantial go$ernmental interest


43/48

!) directl ad$ances that interest, and

c) not more etensi$e than necessar to ser$e that interest

2) A state cannot lace a !an on the ad$ertisement of drug rices.

%) A state cannot rohi!it attornes from ad$ertising legal ser$ices.

') #tates cannot !an all ad$ertising for legal roducts.

+) A state can:

a) Lawers from soliciting clients in erson

!) Commercial !ill!oards to ser$e interest of aesthetics and highwa safet

(!) #eual or indecent seech.

1) Indecent seech is full rotected !ut can !e regulated on the !asis of secondar effects. #uch

regulations must ser$e a su!stantial go$ernment interest, and lea$e oen reasona!le alternati$e

channels of communication.

"#A$PL"%A cit can imose &oning restrictions on adult theaters, e$en it restricts the

theaters from +E of the cit.

"#A$PL"%A !an on u!lic nudit, including nude dancing in adult entertainment

esta!lishments, was held constitutional.

c. /o!ernment as Spea:er

(1) /est: hether sea7er is sea7ing for self or go$ernment

"#A$PL"% /he go$ernment rohi!ited doctors in go$ernment clinics from discussing a!ortion with

its atients. /his was held constitutional.

"#A$PL"% /he go$ernment cannot rohi!it go$ernmentfunded legal ser$ices lawersreresenting ri$ate indi$iduals from !ringing a claim challenging the restriction of welfare !enefits./his is unconstitutional !ecause the lawers are sea7ing on !ehalf of their clients not thego$ernment.

d. Conduct *egulation

(1) A law which regulates conduct, creating an incidental !urden on seech, is allowa!le if:

(a) imortant go$ernment interest

(!) no greater !urden than necessar

"#A$PL"% It is constitutional for the go$ernment to restrict eole from !urning their draftcards.

e. (ime6 Place6 $anner

(1) ;easona!le regulation of the time, lace, or manner of seech is allowed.

(a) /he go$ernment ma lace reasona!le restraints on the time, lace, and manner of seech in

u!lic areas, such as streets, sidewal7s, and ar7sQlaces historicall associated with eressi$e

conduct (e.g., ic7eting, leafleting, and !roadcasting).


44/48

1) A threeart test is used to determine the constitutionalit of time, lace, manner, regulation

of seech and assem!l in u!lic laces. /he regulation must:

a) @e content neutral as to !oth su!ject matter and $iewoint

!) ?arrowl tailored to ser$e an imortant go$ernment interest

c) It must lea$e oen alternati$e saces

2) #tates can re5uire that large gatherings: get a ermit to use u!lic roert.

%) A state cannot re5uire arades or marches to a for olice rotection. /his would not !e

content neutral. @ecause unoular seech would !e charged more.

') A state can restrict the $olume and hours of amlifiers.

+) A state cannot enact a comlete !an on doortodoor solicitation, !ecause a homeowner can

rotect his ri$ac ! osting a 9?o #olicitors sign.

K) An ordinance re5uiring doortodoor solicitors, or can$assers, to identif themsel$es to local

authorities was uheld in the interests of crime re$ention.

*) /he #ureme Court held that a cit ma not re5uire religious or olitical can$assers to:

G) /he #ureme Court has uheld the constitutionalit of a federal law that ermits the 6ost

Office, uon a householder4s re5uest, to order a mailer to sto all future mailings to that

addressee.

) A eaceful rotest on a sidewal7 in front of a ri$ate home ma !e: restricted as long as

restriction is content neutral and rotestor is an alternati$e lace to rotest.

1) In some cases, the Court has uheld !uffer &ones if the are not too !ig.

(!) #eechrelated acti$ities at nonu!lic forums, such as militar !ases, jails, go$ernment

wor7laces, and mail!oes can !e regulated ! $iewointneutral regulations. /he test used ! the

Court re5uires a go$ernment regulation to !e:

1) Miewoint neutral

2) ;easona!l related to legitimate go$ernment interest

(c) A state ma rohi!it demonstrations on jailhouse grounds.

(d) 3ilitar !ases ma: !e closed to olitical seech.

(e) /he go$ernment can regulate seech in go$ernment wor7laces.

(f) A cit ma sell sace for: ma sell commercial !ut not olitical ad$ertisers.

(g) A u!lic school ma not den: cannot eclude grous !ased on their $iews, including religious

grous.

(h) A u!lic tele$ision station can eclude a candidate from its de!ate.

%. Pu+lic "mployment

a.


45/48

!. An indi$idual ma !e deri$ed of u!lic emloment for olitical association, if:

(1) acti$e mem!er of a su!ser$ice organi&ation

(2) with 7nowledge of illegal goals

(%) intent to further illegal goals

c. ith resect to oath re5uirements for u!lic entr:

(1) the go$ernment can re5uire: u!lic emloees to ta7e oath to suort constitution and oose illegal

o$erthrow of go$ernment.

(2) u!lic school teachers do not ha$e to reort a list of all organi&ations to which the !elong8

(%) the go$ernment cannot re5uire u!lic emloees to swear not to: aid, ad$ice the Communist art

(') the go$ernment cannot re5uire emloees to swear to insire re$erence for the flag8

(+) school children do not ha$e to recite the 6ledge of Allegiance (the are not u!lic emloees)8 and

(K) lawers can !e re5uired to: swear to suort and defend the Constitution.

d. 6u!lic emloees ma !e discilined or fired for seech if:

(1) not on a matter of u!lic concern

(2) e$en if seech is u!lic concern, can fire if seech is otentiall disruti$e to wor7lace

'. School Children

6u!lic school children can !e discilined for seech if: otentiall disruti$e.

+. Prisoners

6risoners4 seech rights ma !e restricted if the regulation is rationall related to legitimate enalogicalo!jecti$e

K. Prior *estraint

a.


46/48

(%) 6retrial gag order

d. /he #ureme Court re5uired trial judges to consider three factors in determining if a restraining order against

retrial u!licit is aroriate:

(1) nature of retrial u!licit

(2) a$aila!ilit of other measures

(%) li7el effecti$eness of restraining order

e. 6retrial gag orders are usuall unconstitutional there are alternati$e means to re$ent ollution of the jur

ool:

(1) Moir dire

(2) change of $enue

(%) ostonement

f. Another form of rior restraint is the censorshi or licensing of motion ictures rior to their ehi!ition. /he Court

has held that statutes re5uiring films to !e su!mitted to a @oard of Censors !efore showing them are

constitutional if the following re5uirements are met:

(1) narrow and reasona!le standards

(2) immediate injunction

(%) !urden on censor

(') romt ruling

g. A method the go$ernment fre5uentl uses for regulating the time, lace, and manner of seech is to re5uire a license

or ermit for such acti$ities as a arade, demonstration, or rall.

(1) A licensing statute that is $alid on its face must !e o!eed and a ermit denial cannot !e ignored, e$en if

the statute is alied unconstitutionall.

(2) here a statute is faciall $oid (i.e., gi$es the licensing officials unrestricted discretion): then we can ignore the

faciall $oid statute and rotest anwa.

h. Injunctions must !e o!eed or aealed8 the cannot !e ignored e$en if erroneous.

*. O!er+readth

a. hen a state has the ower to regulate an area dealing with free seech, it must do so in a wa that is:

narrow and secific

(1) O$er!readth is an ecetion to third art standing.


47/48

G. 4agueness

a. /he 9$agueness doctrine is closel related to the 9o$er!readth doctrine.


48/48


Duestion *

An eighteenthcentur $essel is anchored in the har!or of the state4s caital, and is maintained with state funds. /he doc7 at

which the shi is anchored is a oular tourist attraction. Although no one is ermitted to !oard the shi, the state has

oened a doc7side museum ro$iding information a!out the $essel4s histor. 3erchant seamen hired ! the state maintain

the shi on a dail !asis.

/he shi sails onl once a ear, on #etem!er ', when a cruise around the har!or commemorates the first landing of the

shi. =ignitaries ta7e u ' reser$ed saces a!oard shi, !ut the other 12 saces are gi$en out to the general u!lic !

lotter. @ecause the cruise is a high rofile e$ent drawing sectators and media, some eole who ha$e gained saces on

the shi ha$e ta7en to carring olitical signs romoting candidates or issues. In the interest of fire and u!lic safet, the

state has enacted legislation rohi!iting eole from holding signs or distri!uting literature while on !oard the shi during the

#etem!er festi$ities.

#e$en mem!ers of a committee to reelect a local olitician are ic7ed ! lotter to articiate in the cruise, and the all

aear at the doc7 with signs romoting the olitician4s candidac. /he committee mem!ers are rohi!ited from !oarding the

shi with their signs. #u!se5uentl, all se$en of the committee mem!ers file suit in court challenging the constitutionalit of

the statute.

/he most li7el outcome of the suit is that:

A) the committee mem!ers will re$ail, !ecause the statute rohi!its rotected sm!olic seech.

@) the committee mem!ers will re$ail, !ecause the shi is a u!lic forum.

C) the state will re$ail, if there is a li7elihood that the committee mem!ers will incite $iolence.

9 the state will pre!ail6 +ecause the state can limit acti!ities on +oard the ship to those which are consonant

with the day5s e!ents.

Duestion G

Citi&ens of #tate 6urle were mesmeri&ed ! the disaearance of a oung schoolteacher who $anished while jogging along

a oular waterwa. Local and regional news stations and the local ress followed the de$eloing stor closel, and a

we!site was created that trac7ed tis, leads, and search de$eloments. One wee7 after her disaearance, friends

conducting their own search located the woman4s remains in a shallow gra$e. At the time of the disco$er, a local news team

was following the grou and filming the search. /he net da, the state4s largest circulation newsaer u!lished a still

hotograh of the woman4s remains ta7en from the film shot ! the !roadcast news team. In a frontage article !elow the

hotograh, it was reorted that the woman had !een seuall assaulted and the cause of death was ashiation !

garroting. /he woman4s sister and onl sur$i$ing famil mem!er !rings suit for in$asion of ri$ac against the newsaer for

its u!lication of the icture.

If the newsaer raises the -irst Amendment as a defense, the court will li7el find that:

A) the newsaer is not lia!le, !ecause the -irst Amendment rotects the u!lication of truthful information.

9 the newspaper is not lia+le6 +ecause the First Amendment protects the pu+lication of truthful depictions of

newsworthy e!ents e!en if offensi!e to some sensi+ilities.

C) the newsaer is not lia!le, !ecause the -irst Amendment right to free seech guaranteed ! the Constitution

outweighs the right to ri$ac guaranteed ! tort law.

=) the u!lication of the hotograh is not rotected ! the -irst Amendment.

1. ";I#=IC/IO?

2. #/A/0 AC/IO?

%. #/A/0# O; -0=0;AL

mbe subjects ii - con law outline

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