美国纽约州律师资格考试复习笔记 宪法

CONSTITUTIONAL LAW (33 QS) I.

Judicial Power 司法权 – Article III (15% of questions)

Requirement for Cases and Controversies – Justice Ability Doctrine

对普通公民不能用军事法院审理（即便他是军队的EMPLYEE)，除非民事法院被关了

1. Standing – whether the plaintiff is the proper party to bring the matter to the court for adjudication 自身因为第三人的原因受到伤害

a. Injury: P must allege & prove that he has been injured or imminently will be injured P only may assert injures that he personally suffered

(i) P seeking injunctive or declaratory relief must show a likelihood of future harm – monetary interests are the strongest form of injury

TIP: If Q asks which has the best standing, look to a P who has personally suffered an injury. Then choose the one who has suffered an economic/monetary loss.

b. Causation & Redressability – P must allege & prove that D caused the injury, so that a favorable court decision is likely to redress纠正 the injury (NO “advisory opinions”)

rdrd

c. NO 3 party standing – P cannot assert claims of others (3 parties) who are not before the court ? EXCEPTIONS:

rd

(a) Close relationship between P & the injured 3 party (e.g., abortion cases brought by doctors

on behalf of their patients)这个是指金钱关系上的密切，不是人身关系（比如W和H）

rd

(b) Injured 3 party is unlikely to be able to assert his own rights (e.g., criminal D’s can raise

the rights of prospective juror in racial discrimination claim during jury selection) (c) “Associational” standing – an organization may sue for its members, provided

- Members would have standing to sue

- Interests are germane密切相关 to the organization’s purpose

- Neither the claim nor relief requires participation of individual members

d. NO generalized grievances – P must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law (e.g. sued to disclose CIA budget – no standing b/c suing only as a citizen)

TIP: Exam will say “P is suing as a taxpayer”

(i) EXCEPTION – taxpayers have standing to challenge government expenditures as violating the Establishment Clause只能根据TAX & SPENDING 条款

(ii) BUT, taxpayers lack standing to challenge government granting of property to religious institutions/ parochial schools

2. Ripeness 现实的争议问题//避免法院过早介入– can you get declaratory judgment that a law is

unconstitutional? pre-enforcement review of a statute or regulation?

注意：看法律是不是已经通过了~~！！！Proposed//或者有过渡期(GRACE PERIOD)才执行的法律都属于未成熟的！！！

TIP: If Q talks about declaratory judgement, this is likely a ripeness issue.

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Hardship will be suffered without pre-enforcement review: the greater the hardship, the more likely the court will allow declaratory judgment

b. Fitness of the issues & the record for judicial review – does the fed court have all it needs to decide the issue, or should it wait for more factual development? Is anything to be gained by waiting for an actual prosecution?

3. Mootness 正在进行的而未消失的– must be an ongoing injury (if events after the filing of the lawsuit

end P’s injury, it’s moot) ? EXCEPTIONS:

(i) Wrong capable of repetition but evading review – e.g. an abortion case was decided after P had her abortion because P could seek an abortion in the future (Roe v Wade)比如选举权等 (ii) Voluntary cessation of offending practice, but D is legally free to resume it at any time

(iii) Class action suits won’t be dismissed as long as 1 member of the class has an ongoing injury

4. Political Question Doctrine – refers to allegations of constitutional violations that the federal courts

(and level) will not adjudicate (matters left to political branch or inherently incapable of judicial resolution); e.g.:

a. Cases under the “republican form of government clause” b. Challenges to the President’s conduct of foreign policy c. Challenges to the impeachment & removal process d. Challenges to partisan gerrymandering党派选区划分

B. Supreme Court Review 最高法院的裁判权 1. Appellate Jurisdiction

议会可以对其作为上诉法院的审判权作出限制的，但不能全部取消！！！！但不能对其作为原审法院的审判权作出限制，当然也不能扩大~如果是审理州最高法院上诉而来的案子，必须是涉及到联邦法律问题的（解释联邦法律和直接适用联邦法律都算）！！（州法律和联邦法律内容是不是一样无所谓）

如果联邦法院没法判断案子是不是涉及联邦问题，一般会DISMISS然后让州法院重审//如果确涉及到联邦问题，法院可以撤销，然后让州法院再根据州法律判。

a. Writ of Certiorari – all cases from (i) highest state courts, & (ii) U.S. federal court of appeals. 4 justices must agree to grant Certiorari in order for the case to be heard (completely discretionary) b. Appeal – for decisions of 3-judge federal district courts (appeals skip the U.S. federal court of

appeals). Supreme Court is obligated to take the case. The scope of appellate is subject to limitation of congress, though congress cannot take away as a whole.

2. Original Jurisdiction – suits between states & cases involving ambassadors//public minister//conselur

3. Exclusive jurisdiction – suits between states//involving a state

4. Final Judgment Rule - NO interlocutory review by Supreme Court – may hear cases only after there has

been a final judgment.

5. For Supreme Court to review a state court decision, there must NOT be an independent & adequate

state law ground of decision – Supreme Court will not hear a case only if the independent state ground is adequate by itself to support the decision

TIP: Rodney King sues in state court – state law battery claim and federal law civil rights claim and each

a.

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claim will result in the same amount of damages. P wins. D sues all the way up to Supreme Court. No good, because same judgment would occur from the state law ground even if the federal ground was overturned.

C. Lower Federal Court Review 低级联邦法院的审判权---对州的审判权

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1. Federal courts may not hear suits against state governments (11 Amendment) 是指公民或外国政府起诉州~~！联邦和其他州是可以起诉州的

2. Sovereign immunity bars suits against states in state courts or federal agencies.

– EXCEPT

a. Waiver is permitted (i.e., the state consents)

b. States may be sued pursuant to federal laws adopted under § 5 of the 14th Amendment – Congress may adopt laws “to enforce” the 14th Amendment, limiting state sovereignty (like Title VII (1964 Civil Rights Act) cases)

c. Federal government may sue state governments – sovereign immunity doesn’t bar this

d. Suits against state officers are allowed;

可以起诉官员的，但国库不能赔付过去的损害；可以起诉要求未来的利益。 (i) State officers may be sued for injunctive relief;

(ii) State officers may be sued for money damages to be paid out of their own pockets

(iii) BUT, state officers may not be sued if it is the state treasury that will be paying retroactive damages

3. Abstention – federal courts may not enjoin pending state court proceedings

4. NOTE: Congress has exclusive control over the jurisdiction except the Supreme Court

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II. Legislative Power 立法权(10% if questions)

A. Enumerated & Implied Powers

1. Must be express or implied Congressional power

? No general fed police power – there is, however, police power for MILD:

(i) Military; (ii) Indian reservations; (iii) Fed Lands and territories; (iv) D.C.

2. Necessary & proper clause

不能独立适用！！必须题干中出现另一个权力

– Congress can use any means not prohibited by the Constitution to carry out its authority (this clause standing alone cannot support law, thus must work in conjunction with other power)

3. Taxing / Spending Power & the Commerce Clause 很重要

联邦本身是没有general police 的权力的，如果选项说基于其对公民安全、健康、福利的权力通常是错误的//州才有

对居住性的不动产征税 ： 不能对印第安保留区

a. TAXING AND SPENDING POWER一般和general welfare 相联系

Congress may tax & spend for the general welfare as it sees fit – Congress may condition grants under

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spending power even where it cannot directly regulate

b. Commerce Power – includes 3 things: 都关于洲际贸易权力很大；万金油//可以对州工人的工资作出规定。

(i) May regulate the channels (places) of interstate commerce (highways, waterways, internet); or

(ii) May regulate the instrumentalities of, and persons or things in interstate commerce (trucks, phones, planes); or

(iii) May regulate activities that have a substantial effect on interstate commerce (it is legal to regulate amout of wheat farmers could grow for their own home consumption (b/c of

cumulative effect on commerce), however if it is non-economic activity, Congress cannot base their decision on a cumulative effect) th

4. 10 Amendment as a limit on Congressional powers – all powers not granted to the US, nor prohibited

to the states, are reserved to the states, or to the people

a. Congress can’t compel state regulatory or legislative action – BUT Congress can induce state action by attaching strings to grants

b. Congress may prohibit harmful commercial activity by state governments

c. Congress CAN preempt state/local actions by setting standards state/local governments must meet

th

5. Congress’ power under § 5 of the 14 Amendment

a. Congress may NOT create new rights or expand the scope of rights under §5 of the 14th Amendment

b. Congress may only provide additional remedies for rights recognized by courts – those remedies must be narrowly tailored (proportionate & congruent)

B. Delegation of Powers

委托权很广泛；但一旦授予给行政机关，且行政机关依法行使了权力；立法机关若要否决必须两院通过

1. Delegation of legislative powers – NO limit exists on Congress’ ability to delegate legislative power to

executive agencies or even to the judiciary (clear criteria & intelligible principles must be provided). TIP: On exam, if Q says fed law is unconstitutional, it will never be because of delegation of legislative powers.

2. Legislative vetoes & Line-item vetoes（部分通过部分否决） are Unconstitutional – to enact a law,

need bicameralism两院制 & presentment to the President, who must then sign or veto the bill in its entirety

a. Legislative veto立法否决违反三权分立 – when Congress tries to overturn an executive action without bicameralism or presentment with the vote of just 1 house of Congress (unconstitutional) b. Line-item vetoes – President attempts to veto part of a bill and sign the rest of law (unconstitutional)

3. Congress can’t delegate executive power to itself or its officers – Congress can give its powers but

cannot take other’s powers (e.g. Congress may NOT appoint members of a commission or agency with administrative powers)

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III.

Executive Power 行政权(10% if questions)

A.

Foreign Policy

Commander-in-Chief – President has broad powers to use troops in foreign countries (case

dismissed as political question or president wins because president has broad powers as commander in chief in domestic affairs)

军事权是总统和议会分享的，前者可以因为任何原因派遣部队；后者有宣布战争权。

2. Foreign affairs – paramount power, but shared with Congress (non-justiciable & inappropriate for

judicial consideration); Congress has plenary绝对 power over foreign commerce 州法律若涉及到外国商业，可能无效

3. Treaties – agreements between the US & a foreign country that are negotiated by the President & are

effective when ratified by the Senate

- State laws that conflict with treaties are invalid - Treaties prevail over conflicting state laws.

- If a treaty conflicts with a federal statute, the one adopted last in time controls.

- If a treaty conflicts with the United States Constitution, it is invalid.

4. Executive agreements 不需议会批准~~！只比州法律牛逼– an agreement between the US & a foreign

country that is effective when signed by the President & the head of the foreign nation; NO Senate approval is required

- Executive agreements can be used for any purpose.

- Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.

1.

B.

Domestic Affairs

1. Appointment & removal power貌似没怎么出现过

a. Appointment Power:

(i) Officers – Senate must approve (e.g. ambassadors, fed judges, & officers of the US) (ii) Inferior Officers – Congress may vest appointment in the President appointment

(a) Congress has some discretion in appointing inferior officers, & may vest the appointment

of independent counsel in the lower federal courts

(b) Congress may not give itself or its officers the appointment power (that power is executive)

(i.e. Congress cannot create a new executive agency where Congress appoints some of the members)

b. Removal Power – unless removal is limited by statute, President may fire any executive branch official

(i) For Congress to limit removal power, it must be an office where independence from the

President is desirable (i.e., it can limit removal of independent counsel, but not cabinet members) (ii) Congress cannot prohibit removal, but can limit removal to good cause – this applies even to officers who should be independent from the President

2. Impeachment & removal:

弹劾/民事审判 和刑事审判因为一个事由加诸在同一个人身上不算“一事二理”

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(i) the President, (ii) Vice President, (iii) fed judges & (iv) officers of the US can be impeached & removed from office for treason, bribery or for high crimes & misdemeanors

a. Impeachment doesn’t remove a person from office – it just means that there will be a trial in the Senate

b. Impeachment by the House 众议院requires a majority vote, while conviction in Senate参议员 requires 2/3 vote

3. Executive Immunity – absolute immunity to civil suits for money damages while in office – BUT,

President does not have immunity for actions that occurred prior to taking office

4. Executive privilege –总统的文件和谈话有行政特权，但若有刑事案件的证据的需要，可能还是需

要公开。

议会根据立法需要而调查某些受保护的信息的权力也很宽泛//除非被调查人能证明其掌握的信息不可能成为议会立法的对象。

applies to presidential papers & conversations, but such privilege must yield to other government interests (not absolute) i.e. need for evidence in a criminal trial (Watergate)

5. Power to pardon赦免 – 只针对联邦/刑事案件//BUT not for impeachment

a. President may pardon only for fed crimes, NOT state crimes

b. President may pardon only for criminal liability, NOT civil liability

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IV.

Federalism (20% of questions)

A.

Preemption – under supremacy clause federal law preempts state law, even if non-conflicting (4-6 questions on BAR)

1. Express preemption – if federal law is exclusive in a field, state & local law deemed preempted

2. Implied preemption –通常此时联邦的法律很全面或者有有一个全国性的机构负责执行；若议会

只针对某一事项的某一方面做出规定，则不算对州法律的排斥。

如果联邦法院已经PREEMPTION了，就算州是制定支持其的法律也不行//不行就是不行，跟州有没有COMPELLING INTEREST 没什么关系！！！

even if text of federal law is silent, implied preemption in 3 ways:

a. If federal & state law are mutually exclusive, fed law preempts state law – can’t comply with both state & federal law, the fed law wins

? ONE EXCEPTION – states can establish environmental (or health and safety) regulations

stricter than federal law unless Congress clearly forbids it.

b. If state law impedes the achievement of a federal objective, fed law preempts state law

c. If Congress evidences a clear intent to preempt state law, fed law preempts state (i.e. Immigration Law – any attempt by a state of local gov’t to regulate immigration is preempted)

3. States may not tax or regulate federal government activity – 不能直接对联邦政府、机构征税；但可

以对联邦合同的另一方当事人征税，只要没有对联邦造成显著的负担。

a. “Inter-governmental immunities” means that the fed government is immune to unwanted state taxation、

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b.

States can’t regulate federal government if this places a significant burden on fed activity (i.e. Fed gov’t never has to comply with state pollution laws)

B. Full Faith & Credit 州与州之间 – courts in one state must give full faith & credit to another state court judgments, so long as:

1. Court that rendered the judgment had jurisdiction over the parties and the subject matter 2. Judgment was on the merits 3. Judgment is final

C. The Dormant Commerce Clause and the Privileges & Immunities Clause of Article IV 1. Definitions:

a. Dormant Commerce Clause 对洲际贸易的限制违宪(DCC) – principle that state/local laws are unconstitutional if they place an undue burden on interstate commerce (negative implication of Commerce Clause)

先看有没有差别对待；再看有没有对洲际贸易造成过大的负担/和对州的利益进行比较。

b. Privileges & Immunities Clause of Article IV对他州的公民区别对待违宪 (PIC) – “no state shall deprive citizens of other states the privilege & immunities it accords its own citizens” (anti-discrimination against out-of-staters)

2. ANALYSIS – Does the state or local law discriminate against out-of-staters?

a. Law does NOT discriminate: (i) PIC – NOT applicable

(ii) DCC – balancing test: if the law burdens interstate commerce, it violates the DCC if its burdens exceed its benefits (even if the law doesn’t discriminate, it can be stricken down as being too burdensome)

b. Law discriminates against out-of-staters:

(i) DCC violation if the law burdens interstate commerce,

(a) UNLESS it’s necessary to achieve an important government purpose 中等审查

(b) Strong presumption against burdensome state law; helping in-staters is NEVER an important

government purposes; no less discriminatory alternative could achieve its important gov’t objective (c) Exceptions

- Congressional approval

- Market participant exception (state/local government may prefer its own citizens in receiving benefits from government programs, or in dealing with government-owned businesses). Examples:

- State Universities in NY can charge less tuition to NY residents – b/c regarded as gov’t benefit program

- Cement factory owned by state charged less to in-state purchasers – ok b/c state is market participant

(ii) PIC violation if the law discriminates against out-of-staters with regard (a) important economic activities ( ability to earn a livelihood), or (b) civil liberties 重要经济利益和自由权；工作权肯定算

（a)For a license related to work, in-stater paid a small fee, while out-of-stater paid a large fee – VIOLATION OF PIC//

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(b)For a license related to hobby, in-stater paid a small fee, while out-of-stater paid a large fee – THIS IS OK

(a) UNLESS it’s necessary to achieve an important government purpose:中等审查

(b) Corporations & aliens cannot use the privileges & immunities clause (only DCC could

apply)

(c) No less discriminatory means to achieve that purpose

3. Comparison of the DCC & the Privileges & Immunities Clause of Article IV:

DCC: Privileges & Immunities Clause: ? Not require discrimination against out-of-? Requires discrimination against out-of-staters in order to apply states in order to apply ? Requires burden on interstate commerce ? Requires discrimination with regard to (i) civil liberties or (ii) important economic ? Corporations & aliens can sue under it activities ? EXCEPTIONS: ? Corporations & aliens can NOT sue under (i) Congressional approval it (ii) market participant exception ? NO exceptions

State Taxation of Interstate Commerce 1. Non-discriminatory state tax requirements

a. Substantial nexus to the state b. Fair apportionment

c. May NOT use tax systems to help in-state business

2. Types of taxes

a. Use Tax – tax on goods purchased outside of state, but used within state b. Sales Tax - tax on sale of goods consummated within the state

c. Ad valorum taxes – taxes on assessed value of the property 不能针对运输途中的货物征收此税 (i) Commodities – valid if no longer in interstate commerce

(ii) Instrumentalities - (i) whether there is a taxable situs (or nexus), & (ii) whether the tax is fairly apportioned

d. “Doing business” taxes (privilege, occupation, franchise, occupational tax) – tax placed on some activity

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V. Structure of the Constitution’s Protection of Individual’s Liberties 对个人自由的保护(8% of questions)

A. Is There Government Action?

1. State action doctrine – the Constitution applies only to government action; private conduct need not

comply with the Constitution 公立学校的工作人员的行为就算州行为的。 a. Exclusive public functions--经营彩票不算公共目的的。

b. Significant state involvement –仅仅规制的比较厉害不算参与；仅有资金支持也不单独构成 state must affirmatively facilitate, encourage or authorize an allegedly unconstitutional act in order for it to be state action

D.

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Congress, by statute, may (but not required) apply constitutional norms to private conduct:

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a. 13 Amendment can be used to prohibit race discrimination

(i) The ONLY Constitutional provision that directly applies to private conduct //但法律可以规定若个人通过不当方式唆使公职人员违背此条款的亦可入罪。

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(ii) TIP: Private discrimination doesn’t violate 13 Amendment itself but violates federal law adopted under this Amendment – only slavery can violate the 13th Amend. b. Commerce power can be used to apply Constitutional norms to private conduct – c. Congress can NOT use § 5 of 14th Amendment to regulate private behavior – Congress can only regulate state/local governments

3. EXCEPTIONS – situations where private conduct must comply with the Constitution

a. Public function exception (very narrow exception, doesn’t apply to private utilities since they are not traditionally, exclusively run by the govt) – the Constitution applies if a private entity is

performing a task traditionally, exclusively done by the government (e.g. Company owned all the land in the town – Jehovah witnesses were kicked out of the town, Here running the town is traditionally done by the gov’t)

b. Entanglement牵连 exception – Constitution applies if the government affirmatively (i) authorizes, (ii) encourages, or (iii) facilitates unconstitutional activity (i) In such situations,

(a) EITHER the government must stop what it’s doing, OR (b) The private party must be bound by the Constitution

(ii) Consider 7 examples

(a) Courts can’t enforce racially restrictive covenants//

(b) State action when government leases premises to a restaurant that racially discriminates// (c) State action when government gives free books to private schools that racially discriminate

//

(d) NO state action when a private school, almost totally subsidized by government (99%

funded), fired a teacher because of her speech (government subsidy insufficient for a finding of state action). Govt subsidy is insufficient for finding a state action.//

(e) NO state action when the NCAA suspended a basketball coach in a state school, because the

NCAA is a private organization so it doesn’t have to comply with the constitution.

(f) State action when a private entity regulates the state’s interscholastic sports – this was an

intertwinement with government, because most of the schools were public (it’s different from the NCAA case, because NCAA impacts all states, while the organization in this case regulated only Tennessee’s sports)

(g) NO state action when private club with state liquor license discriminated based on race

B. Application of the Bill of Rights人权法案

1. Bill of Rights applies directly only to the federal government, BUT, it’s applied to state/local

governments through its incorporation into the due process clause of the 14th Amendment 2. Selective in-corporationists think only some apply to the states

3. Total in-corporationists think that ALL of the Bill of Rights applies to the state/local governments –

this doctrine won the debate, BUT, the following DO NOT apply to the states:

nd

a. 2 Amendment right to bear arms (states can adopt any type of gun control they want)

rd

b. 3 Amendment right to not have soldiers quartered.

th

c. 5 Amendment right to grand jury indictment in criminal cases

2.

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d. e.

7th Amendment right to jury trial in civil cases 8th Amendment right to excessive fines

C. Levels of Scrutiny

MEANS Rationally related Substantially related PURPOSE Least Restrictive Alternative Analysis? Burden of Proof? Legitimate NO Challenger Conceivable Important Uncertain Intermediate Government Actual (probably yes) Scrutiny Compelling Necessary YES Government Strict Scrutiny Actual ================================================================== VI. Due Process (8% of questions)

A. Procedural Due Process ? a fair process is required for government to individually take a person’s “life, liberty, or property.”

1. Deprivation of life, liberty, or property?

a. Definitions:

(i) Deprivation of liberty 家长轻微体罚孩子/学校纪律对程序没那么高的要求。– occurs if there is the loss of a significant freedom provided by the Constitution or a statute – less obvious examples of liberty include

(a) Except in an emergency, before an adult can be civilly committed, there must be notice and

a hearing

(b) When a parent institutionalizes a child, there only has to be a screening by a neutral

factfinder.

(c) Harm to reputation: by itself, is NOT a loss of liberty. Must show a tangible loss on top of

harm.

(d) Prisoners – rarely have liberty interests. Usually always lose

(ii) Deprivation of property – 如果一份工作只能因为“CAUSE‘被解雇，则它构成财产；此时解雇需要通知；事先答辩的机会以及事后的证据听证。//私人老板下干的随时可能被解雇，不存在DUE PROCESS

occurs if there is an entitlement & that entitlement isn’t fulfilled

b. Must be intentional or reckless government action for liability to exist

(i) Government negligence is NOT sufficient to state a claim under the due process clause.

(ii) “Shocks the conscience” – in emergency situations, the government is liable under due process only if the conduct shocks the conduct (reckless high speed chase by police not a violation of due process – must shock)

c. Government’s failure to protect people from privately inflicted harms does NOT deny due process – the government must literally create the danger in order for a duty to exist (Child beaten by father is not violation of due process by Social Services)

2. What procedures are required? – balancing test

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3.

Examples

a.

Types

OPPTY TO RESPOND HEARING Prior Subsequent - Yes Yes - - Yes (personal P) Interests NOTICE Institutionalization收容住Yes - Yes 院 (adult) // (child) Prior screening by “neutral factfinder” Welfare benefits Yes - Yes Disability benefits Yes Yes - Public employment Yes Yes - Public education Yes Yes - (disciplinary) Termination of child Yes - Yes custody Civil Forfeitures

Yes - Yes (real P) Other Examples:

(i) Punitive damages require instructions to the jury, & judicial review to ensure reasonableness (ii) American citizen held as enemy combatant in another country is afforded due process.

(iii) Pre-judgment attachment & government seizure of assets requires notice & a hearing, except in exigent circumstances – Due Process does not require an innocent owner defense to government seizure.

B. Substantive Due Process十四修正案只针对州！！！！！不针对联邦！！！！！比如合同权/针对外国人的法律

1. Definition – whether government has adequate reason for taking away an individual’s life, liberty or

property

2. Constitutional Source

th

a. 14 Amendment applies only to state/local governments, NEVER to federal

th

b. Equal protection is applied to the fed government through the 5 Amendment

3. Economic liberties – Constitution provides only minimal protection for economic liberties

a. Rational basis test – used for laws affecting economic rights (e.g., minimum wage, other regulations, state law regulating trades or professions, consumer protection laws)

b. Takings clause (separate test) – government may take private property for public use, but must provide just compensation (i) Is there a taking?

(a) Possessory taking 就是墙上打个洞也算~~！

– government confiscation 没收or physical occupation of property is a taking, regardless of size or amount

(b) Regulatory taking – government regulation is a taking if it leaves no reasonable

economically viable use of the property

- Not enough to show merely a decrease in the value of the property - NOTE: apply rational basis PLUS the “roughly proportionate” test b.

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government that is roughly proportionate to the burden imposed – otherwise, it’s a taking.

→ A property owner may bring a takings challenge to regulations that existed at the time the property was acquired

→ Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable (moratoriums)

(ii) Is it for public use? 通常都是

(a) If not, the government must give property back

(iii) Is just compensation paid?

(a) Measured in terms of the loss to the owner (i.e., reasonable market value) (b) Gain to the taker is irrelevant

c. Contracts clause -----只针对州！！议会就算损害了合同权益，也不能适用这一条区分私人合同（中等审查）和政府合同(严格审查）– “No state shall impair the obligations of contracts” (i) Prohibits states from enacting any law that retroactively impairs contract rights

(a) – NEVER applies to federal government, which can be challenged only on due process

grounds

(b) Affects only already-existing contracts

(ii) State/local interference with private contracts must meet intermediate scrutiny (plus combining elements of rational basis):

(a) “Does the legislation substantially impair a party’s rights under an existing contract? (b) “If so, is the law a reasonably & narrowly tailored means of promoting an important &

legitimate public interest?”

(iii) State/local interference with government contracts must meet strict scrutiny

(iv) Ex post facto clause does not apply in civil cases – 只针对刑事案件的

4. Privacy – fundamental rights protected under substantive due process (generally strict scrutiny test)

Strict Scrutiny (compelling reason) Not a fundamental right (Rational Basis review) ? right to practice a trade or profession ? right to physician-assisted suicide ? right to education ? right to marry ? right to procreate ? right to custody of children - Caveat: If a married woman has a child, it is an irrebutable child that the woman’s husband is the father of the child. This is OK. ? right to keep family together (must be related to one another) ? right to control raising of children – violates due process to order grandparent visitation over parent’s objection ? right to purchase & use contraceptives ? right to travel (covered under Equal protection § VII-H) ? right to vote (covered under Equal protection § VII-H) Constitutional Law

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? freedom of speech (covered under Equal protection § VIII) ? freedom of association (covered under Equal protection § VIII) ? free exercise of religion (covered under Equal protection § VIII) a.Undue Burden Test (right to abortion)

(i) Prior to viability – states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions (24 hour waiting period, or requirement that abortions be performed by licensed doctors are not unconstitutional)

(ii) After viability – states may prohibit abortions unless necessary to protect the woman’s life or health

(iii) Government has no duty to subsidize abortions or provide them in public hospitals (iv) Spousal consent & notification laws are unconstitutional

(v) Parental notice & consent laws for unmarried minors – state may require parental notice &/or consent for an unmarried minor’s abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge.

b. Unknown level of scrutiny

(i) Right to private, consensual homosexual sex (ii) Right to refuse medical treatment:

(a) Competent adults have right to refuse medical treatment, even life-saving treatment or

food and water

(b) Ending treatment – state may require clear & convincing evidence that a person wanted

treatment terminated before it ended

(c) Terminating family members’ treatment – state may prevent family members from cutting

off treatment, because family members might have different interests than the patient himself

(d) No right to physician assisted suicide.

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VII. Equal Protection (8% of questions）十四修正案中的平等保护只针对州；联邦需要通过第五条适

用！！！

thth

A. Constitutional Provisions Concerning Equal Protection (5 for fed government, 14 for states). Steps (1) What is the classification (2) What is the scrutiny (3) Does the law meet the level of scrutiny

th

1. 14 Amendment applies only to state/local governments, NEVER applies to federal govt

th

2. Equal protection is applied to the fed government through the Due Process clause of the 5 Amendment

B. Classifications Based on Race and National Origin – strict scrutiny is used 1. Proving existence of a racial classification

a. Classification exists on the face of the law; OR

b. If the law is facially neutral, proving a racial classification requires demonstrating both (i) discriminatory impact & (ii) discriminatory intent

2. Racial classifications benefiting minorities – strict scrutiny is applied

a. Numerical set-asides (i.e., quotas) require clear proof of past discrimination. (Rarely allowed – only upheld once by Supreme Court – Every time a white person was hired, a black person had to be hired – this was OK)

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Educational institutions may use race as one factor among many in admissions to help minorities. However, they cannot set-aside slots or add points to admission scores solely based on race. c. Seniority systems (“last hired, first fired”) may not be disrupted for affirmative action

b.

C.

D.

E.

F.

G.

Gender Classifications – intermediate level of scrutiny is used – must be exceedingly persuasive justification.

1. Gender classifications benefiting women

a. Gender classifications benefiting women that are based on role stereotypes is NOT be allowed (i.e. woman always gets survivor benefits but men only if they need it – UNCONSTITUTIONAL) b. Gender classifications designed to remedy past discrimination & differences in opportunity is allowed

Alienage Classifications – favorite area (1-2 questions)议会对外国人怎么规定都可以！！不适用平等保护！！！！！州也有一个例外。

1. Generally, strict scrutiny is used (e.g., law said only US citizens could receive social security benefits

or hold civil service jobs or practice law – stricken down on strict scrutiny analysis), BUT:

2. Intermediate scrutiny is used for discrimination against undocumented alien children.

3. Rational basis is used for:

a. Alienage classifications that concern self-government & the democratic government – some privileges can be reserved for US citizens only, namely: (i) voting, (ii) serving on a jury, (iii) being a teacher, (iv) cop or (v) probation officer . Here the gov’t can discriminate against aliens.

b. Congressional discrimination against aliens – Congress has plenary power to regulate immigration. If Congress discriminates against non-citizens, only a rational basis review.

Discrimination Against Non-Marital Children

1. Intermediate scrutiny is used (but almost always stricken down)

2. Laws that deny a benefit to all non-marital children (kids whose parents are not married), but grant it to

all marital children, are unconstitutional.

Rational Basis Review (used for all other types of discrimination)

1. Age discrimination – mandatory retirement laws are often challenged, & government usually wins 2. Disability discrimination – one of the few times government lost in rational basis review (ban of

mental homes in towns was struck down by the courts under rational basis review

3. Wealth discrimination – poverty is NOT a suspect classification. Discrimination against poor is only

rational basis

4. Economic regulation – hot dog owners have to be there for 8 yrs - constitutional 5. Sexual orientation discrimination -

Fundamental Rights Protected under Equal Protection----投票时的居住限制不超过50天 1. Right to travel

a. Laws that prevent people from moving into a state must meet strict scrutiny

b. Durational residency requirements (person must live in a jux for a specified amt of time in order to get a benefit) must meet strict scrutiny – for voting, 50 days is maximum allowed durational residence requirement

c. Restrictions on foreign travel need meet only the rational basis test – NOT a fundamental right

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Constitutional Law

Right to vote

a. Laws that deny some citizens the right to vote must meet strict scrutiny (e.g., poll taxes or property ownership requirements are unconstitutional)

b. Only time the courts have ever upheld property ownership as a condition for voting or for holding public office was a water district election.

c. One-person-one-vote must be met for all state/local elections – voter approval doesn’t justify deviation from one-person-one-vote

d. At-large elections (all the voters vote for all the office holders) are constitutional – UNLESS there’s proof of a discriminatory purpose

e. Use of race in drawing election district lines (to benefit minorities by redrawing districts) must meet strict scrutiny.

f. Counting uncounted votes without standards in a presidential election violates equal protection (Gore-Bush).

3. Right to be a candidate – NOT constitutionally guaranteed 4. Right to education – NOT a fundamental right 1. What is the classification: (a) Classification is on the face of the law; OR (b) If law is facially neutral, there is both (i) discriminatory intent, AND (ii) discriminatory impact 2. What is the level of scrutiny: 2.

Strict Scrutiny: Law must be necessary to achieve a compelling government purpose ? Race ? National origin ? Alienage (generally) ? Travel (but not foreign travel) ? Voting Intermediate Scrutiny: Law must be substantially related to an important government purpose ? Gender ? Legitimacy ? Undocumented alien children Rational Basis Test: Law must be rationally related to a legitimate government interest ? Alienage classifications related to self-government & the democratic process ? Congressional regulation of aliens ? Age – Handicap – Wealth ? All other classifications 3. Does the law meet the level of scrutiny?

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The First Amendment (20% of questions and usually if there is ever an essay)

H. Free Speech Methodology //宣誓的话只能是忠诚类的或者是保证不是某个已知的以进行非法活动为目的的组织的成员

政府官员的谈话内容如果影响其职责的履行，则不受此条的保护 1. Content-based v. Content-neutral restrictions:

a. Content-based restrictions on speech generally must meet strict scrutiny – 2 types

(i) Subject matter restrictions – application of the law depends on the topic of the speech (ii) Viewpoint restrictions – application depends on the ideology of the message

b. Content-neutral laws burdening speech generally need only meet intermediate scrutiny – must: (i) Further a significant government interest,

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(ii) Narrowly tailored, AND

(iii) Leave open alternative channels of communication

2. Prior restraints – Judicial orders to stop speech before it occurs //事先禁止规制通常违宪，即使是为了给被告提供公平的审判环境，需要证明这是唯一的方法。 关闭法庭需要OVERRIDING INTEREST.

只针对报社出版社的税收或是仅因为其刊登特定内容（包括广告）则需要COMPELLING INTEREST.

(worst form of restraint on free speech)

a. Court orders suppressing speech must meet strict scrutiny

(i) Procedurally proper court orders must be complied with until they are vacated or overturned – gag orders on press to prevent prejudicial pre-trial publicity are NOT allowed

(ii) Collateral bar rule – a person who violates a court order is later barred from challenging it b. Government can require a license for speech, only if there is an important reason for licensing, & clear criteria leaving almost no discretion to the licensing authority – licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses & judicial review

3. Vagueness & overbreadth:

a. Vagueness – a law is unconstitutionally vague if not give reasonable notice of what is prohibited b. Overbreadth – a law is unconstitutionally overbroad if it regulates substantially more speech than is necessary

c. Fighting words (likely to provoke a violent response) laws are unconstitutionally vague &

overbroad. HYPO: Appealing victim and nasty speaker – Answer is always that law prohibiting fighting words is unconstitutional.

4. Symbolic speech –各种艺术表演形式都受此条保护~连镭射灯光表演都算哦，亲 the government

can regulate conduct that communicates IF (i) it has an important interest unrelated to suppression of the message, & (ii) the impact on communication is no greater than necessary to achieve the government’s purpose Constitutionally protected: Constitutionally NOT protected: ? Flag burning ? Draft card burning ? Burning of cross (unless there is intent to ? Nude dancing threaten) ? Expenditure limitations ? Contribution limits for election campaigns 5.

Anonymous speech is protected – protect right not to speak

I. What Speech is Unprotected or Less Protected by the First Amendment

1. Incitement of illegal activity – government may punish speech if: (i) there’s a substantial likelihood of

imminent illegality, AND (ii) the speech is directed at causing the imminent illegality //

2. Obscenity & sexually-oriented Speech:

a. Obscenity Test

(i) appeal to the prurient interest (a “shameful or morbid interest in sex”) – local community standard;

(ii) patently offensive under the law prohibiting obscenity – local community standard; AND

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(iii) lack serious redeeming artistic, literary, political or scientific value – national standard b.

Zoning Permissible – government may use zoning ordinances to regulate the location of adult bookstores & movie theaters---REDUCE SECOND EFFECT (Erogenous Zoning is permissible) Child pornography – can be completely banned, even if not obscene. To be child pornography, it must be children , not adults that look like children or computer generated images)

Punish private possession of obscene materials NOT allowed – BUT, may punish private possession

c.

d.

of child pornography

e.

Government may seize the assets of businesses convicted of violating obscenity laws

f.

Profane & indecent speech – generally protected by the 1st Amendment, EXCEPT:

(i) broadcast media – broadcast is uniquely intrusive into the home, CAN censor profanity, (EXCEPT for cable television and internet which people choose to bring into their homes) (ii) in schools (schools can punish profane and indecent language, including sexual innuendo)

3. Commercial speech:

a. False & deceptive ads – NOT protected by the 1st

Amendment

b. True commercial speech that inherently risks deception can be prohibited:

(i) Government may prohibit professionals from advertising or practicing under a trade name (ii) Government may prohibit attorney, in-person solicitation of clients for profit – BUT, if lawyers offer services for free or by letters, they can solicit

(iii) Government may NOT prohibit accountants from in-person solicitation of clients for profit c. Other commercial speech can be regulated if intermediate scrutiny is met (cannot solicit accident victims for 30 days was upheld)

d. Commercial speech regulation must be narrowly tailored, but NOT need to be least restrictive alternative

4. Defamation – not protected, but the ability of a state to limit recovery is limited

actual malice – knew the statement was false or acted with reckless disregard for the truth

Plaintiff Liability Standard Damages Burden of Proof Public official compensatory P must prove falsity by clear and (or running for office) actual malice presumed/punitive convincing evidence Public figure actual malice compensatory P must prove falsity by clear and presumed/punitive convincing evidence Private figure negligence compensatory for actual (matter of public injury; P must prove falsity and concern) actual malice Presumed/punitive damages negligence on the part of the require actual malice speaker Private figure compensatory for actual (matter of private unclear injury Unclear concern) (negligence) Presumed/punitive damages (burden on D to prove truth) do not require actual malice 5. Privacy a. Government may NOT create liability for the truthful reporting of information that was lawfully obtained from the government

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b.

L

iability is NOT allowed if the media broadcasts a tape of an illegally intercepted call, IF: (i) the media did not participate in the illegality, & (ii) it involves a matter of public importance

c. Government may limit its dissemination of information to protect private, but NOT in criminal trials – only the press have 1st Amendment right in pre-trial criminal proceeding

6. Other government restrictions based on the content of speech – must meet strict scrutiny

J. What Places are Available for Speech

1. Public forums – government properties that the government is required to make available for speech

(e.g. streets, sidewalks & parks)

政府大楼外墙即使允许做广告，它也不构成公共区域

a. Regulations must be subject matter & viewpoint neutral

b. Regulations must be a time, place, or manner regulation that serves an important government purpose & leaves open adequate alternative places for communication (i.e. No trucks with sound amplification equipment allowed in residential areas at night -UPHELD)

c. Narrowly tailored – government regulation of public forums need not use the least restrictive alternative (e.g., city ordinance said concert in the park required city engineers for sound system – this is ok, because need not be least restrictive alternative)

d. City officials can NOT have discretion to set permit fees for public demonstrations

2. Limited/designated public forums – government properties that the government could close to speech,

but chooses to open to speech; so long as government chooses to open property for speech, it must follow all of the above rules (i.e. school facilities are non-public forums in the evenings and on the weekends – Congress can open the place as a limited public forum)

3. Non-public forums – government properties that the government constitutionally can & does close to

speech绝大多数公共财产都不是PUBLIC的，对其的限制只要观点中立，有合法目的就行 a. Government can regulate so long as the regulation on time, place & manner is (i) reasonable (rational basis), & (ii) viewpoint neutral b. Non-public forums include: (i) military bases

(ii) areas outside prisons & jails (iii) advertising space on city buses (iv) sidewalks on post office property

(v) airports – may prohibit money solicitation; can NOT prohibit distribution of literature (fails rational basis review

st

4. Private property – NO 1 Amendment right of access to private property (i.e. Shopping centers) for

speech purposes Public forums & Limited/designated public forums Non-public forums Constitutional Law

Subject matter neutral Viewpoint neutral Method of regulation allowed time, place, or manner (i) open adequate alternative place (ii) narrowly tailored (NOT least restrictive) reasonable Interest required YES YES important legitimate 18 NO YES

K.

private property NO 1st Amendment Right to use private property for speech purposes Freedom of Association

1. Laws that prohibit or punish group membership must meet strict scrutiny – to punish membership in a

group, it must be proven that the person (i) actively affiliated with the group, (ii) knowing of its illegal activities, & (iii) with the specific intent of furthering those illegal activities.

2. Laws that require disclosure of group membership, where such disclosure would chill association, must

meet strict scrutiny

3. Laws that prohibit a group from discriminating are constitutional, UNLESS they are

a. Intimate association (e.g., if you’re not invited to a small dinner party, you can’t sue), OR

b. Expressive activity – discrimination is an integral part of the association (e.g., the KKK who have an anti-black message or Boy Scouts who had anti-gay message)

L. Freedom of Religion 1. Free exercise clause:

a. Prohibits government interference with religious beliefs ? Members of the clergy can hold government office b. Allow regulation of general applicability (conduct)

? Exception – Unemployment compensation (government may not deny benefits to individuals who quit their job for religious reasons)

2. Establishment clause:

a. Prohibits laws respecting the establishment of religion

b. Test (SEX) (if any of these three are violated, it violates the Establishment Clause): (i) Must be a Secular purpose for the law (e.g., 10 commandments can’t be posted on public schools)

(ii) Effect must be neither to advance nor inhibit 抑制religion – government can’t symbolically endorse religion, or a particular religion ? “plastic reindeer rule” – if there are religious symbols accompanied by symbols from other

religions, AND secular symbols (i.e plastic reindeer), that’s ok (iii) Must not be eXcessive entanglement with religion – government can’t pay salaries of parochial school teachers because that would require too much supervision

c. Government can’t discriminate against religious speech or among religions, unless strict scrutiny is met

d. Government sponsored religious activity in public schools is unconstitutional (i.e., school prayer, even moments of silence are unconstitutional, clergy神职人员 delivered prayers at school

graduations not allowed, student delivered prayers at football games not allowed), BUT religious student & community groups must have the same access to school facilities as non-religious groups e. Government may give assistance to parochial schools – so long as the money isn’t used for Constitutional Law

19 religious instruction. CONSTITUTIONAL LAW – ESSAY QUESTIONS I. QUESTION – 76 (& CRIMINAL LAW/PROCEDURE)

A. Whether a disorderly conduct statute that prohibits “inciteful behavior” is overbroad

B. Whether the obscenity statute sufficiently defines or has been construed to sufficiently define “obscenity”

II. QUESTION – 17 (& NY PRACTICE & TORTS)

A. Whether due process is applicable in administrative proceeding

1. 5th & 14th Amendment – due process contemplates fair process and procedure, and requires at least an

opportunity to present objections to the proposed action to a fair, neutral decision-maker 2. D is entitled to a “trial-type” hearing

a. Order will be based on adjudicative facts

b. Number of parties to whom notice and opportunity to be heard would have to be given is not impractically large

c. Agency action deprives the party of liberty or property d. And includes the right of cross-examination

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