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A federal court will NOT hear a case that has become moot. A real, live controversy must exist at all stages of review, not merely when the complaint is filed.

(1) Capable of repetition but evading review.
(2) Class representative may continue to pursue class action even when his controversy has become moot.
State Action Requirement
Constitution prohibits only governmental infringement of constitutional rights, but does NOT have to be DIRECT action by state.

State action can be found in the actions of private individuals who (i) perform exclusive public functions, or (ii) have significant state involvement in their activities.
Exclusive Public Functions
Activities that are so TRADITIONALLY the EXCLUSIVE prerogative of the state that they constitute state action, even when undertaken by private individual or organization.
Significant State Involvement -- Facilitation of Private Action
State action exists whenever a state AFFIRMATIVELY facilitates, encourages, or authorizes acts of discrimination by its citizens.

(1) Official encouragement (judicial approval, peremptory challenges, official acts, discriminatory law enforcement, apparent legal authority;
(2) State authorization;
(3) State as lessor for discriminatory lease;
(4) Administration of discriminatory trust by public officials;
(5) Entwinement of state and private entities.

Does not include: regulated businesses, granting monopoly to utilities, private nursing homes, private schools.
Public Education
Traditional public function which is encouraged and financed by the state.
Gender Classifications
Classifications that intentionally discriminate against women are "quasi-suspect" and are subject to the intermediate standard of scrutiny and must be substantially related to an important government interest.

The government bears the burden of proving an "exceedingly persuasive justification" for the classification; otherwise it's not substantially related to an important government interest.

Important government interest MUST be REAL and GENUINE, not hypothesized for litigation purposes.

Affirmative Action benefiting women will be upheld if designed to remedy past discrimination.
Legitimacy Classifications
Along with gender, a quasi-suspect classification. Must be substantially related to an important governmental objective.

State statute CANNOT prevent illegitimate children from inheriting from their fathers.

Immigration preference to legitimate children is permissible due to the government's plenary power over immigration.
Undocumented Aliens
NOT a suspect classification.
Racial Classifications
Suspect classification (along with national origin).

A classification based on race is always subject to strict scrutiny, meaning that the classification will only be upheld if the government proves that it is NECESSARY to achieve a COMPELLING government purpose.

Discriminatory effect NOT enough to trigger strict scrutiny (i.e., to prove a racial classification). There must be INTENT to discriminate, shown by (i) facial discrimination; (ii) discriminatory application; or (iii) discriminatory motive.
Facial Discrimination
A law that includes a classification on its face, by making an explicit distinction between classes of person by its own terms.
Facially Neutral Classification

A law that appears to be neutral on its face, but is (1) applied differently to different classes of persons with the purpose of discrimination or (2) will have a purposely disproportionate impact on a particular class of persons.

Type (1) is termed "discriminatory application."

Type (2) is termed "discriminatory motive."

REMEMBER: Challenger MUST prove that the government had a discriminatory purpose; otherwise the facially-neutral law will be upheld.
Right to privacy
Fundamental right that includes several privacy interests:

Marriage, child-rearing, use of contraceptives, obscene reading material, keeping extended family together, rights of parents, intimate sexual conduct, freedom from collection of personal data, and abortion (to an extent; see its own flashcard for details).
Right to vote
Fundamental right, which is mentioned in 14th, 15th, 19th, 24th, and 26th Amendments.

Any restrictions on voting, other than on the basis of age, residency, or citizenship are INVALID unless they pass strict scrutiny.

Variance in number of people within congressional districts MUST BE ALMOST EXACTLY EQUAL.

Variance in state/local MUST NOT BE UNJUSTIFIABLY LARGE.

Discriminatory gerrymandering is not constitutional, but political gerrymandering has never been invalidated.
Right to travel
Fundamental right to interstate travel, but not to foreign travel.

This includes the right to (i) travel from state to state; and (ii) be treated equally once a permanent resident of a state.

Durational residency requirement requiring waiting period for dispensing benefits should not be upheld merely because they have some theoretical rational relationship to an arguably legitimate government purpose -- higher standard (technically strict scrutiny, but Court not clear).

State laws that distinguish between old and new residents (that don't involve reasonable waiting period) are INVALID, as it has not rational relationship to any government purpose.
Right to education
NOT yet held to be a fundamental right.
A person has standing in federal court only if she can demonstrate a concrete stake in the outcome of the controversy.

Standing Requirements:
(1) Injury in fact
(2) Causation
(3) Redressabilty

Standing to assert rights of others, where where plaintiff has suffered his own injury and (i) 3rd parties find it difficult to assert their rights; or (ii) injury suffered by plaintiff adversely affects his relationship with 3rd parties.

Organizational standing, if:
(i) injury to members that would give them right to individually bring action; (ii) related to organization's purpose; and (iii) neither the nature of the claim nor the relief sought requires individual participation.

Congress has NO power to completely eliminate the case or controversy requirement.

NO taxpayer standing, unless to challenge Establishment Clause violations.

NO general citizenship standing.
Non-public forums
Most public property is considered to be a nonpublic forum. Time, place, and manner restrictions will be upheld if they are viewpoint neutral and reasonably related to a legitimate government purpose.

The following are not public forums:
- Military bases
- Schools
- Government workplace
- Airport terminals (can ban solicitation, but not leafleting)
- Candidate debates on TV
- Postal Service property (including sidewalks)
- Mailboxes
Public forums and designated public forums
Regulations of speech and assembly in public forums and designated public forums ONLY VALID IF it is:

(1) Content-neutral (subject matter and viewpoint neutral. TPM restrictions valid); and
(2) Narrowly tailored to serve a significant government interest; and
(3) Leaves open alternative channels of communication.

Public forum: public property that has historically been open to speech related activities.

Designated (limited) public forum: Public property not historically open to speech activities, but which the government has thrown open for such activities on a permanent or limited basis.
Access to trials
First Amendment guarantees the public and press a right to attend criminal trials and pretrial proceedings, but this right may be outweighed by an overriding interest articulated by trial judge.

Defendant's right to fair trial may outweigh public's right if judge's order is narrowly tailored to meet this overriding interest.

Press has the right to publish truthful information about matter of public concern, which can be restricted only by a sanction (gag order) that is narrowly tailored to further a state interest of the highest order.

State has compelling interest to protect children who are victims of sex offenses, and may close trial to public.
Overbroad speech regulation
Invalid if it prohibits substantially more speech than is necessary.

A regulation that punishes a substantial amount of protected speech is facially invalid.
Content-based regulation of speech
Presumptively invalid, unless government can show that the regulation (or tax) is necessary to serve a compelling government interest and is narrowly drawn to achieve that end.

EXCEPTION: certain categories of speech are unprotected:
(1) fighting words
(2) obscenity
(3) defamation
Prior restraint
Any governmental action that would prevent a communication from reaching the public (e.g., licensing system). Must be narrowly tailored to achieve some compelling, or at least significant, government interest (national security, fair trial).

Court would rather allow speech and then punish it if it was unprotected, rather then to prevent it altogether.

Court will uphold prior restraint if some special harm would otherwise result.
11th Amendment Limits on Federal Courts (State Sovereign Immunity)
Federal courts may NOT hear the following actions:

(1) against state governments for damages;

(2) against state government for injunctive or declaratory relief, when state is named as defendant;

(3) against state government officers where the effect of the suit will be that retroactive damages will be paid from the state treasury or where the action is a quiet title action that would divest state of ownership of land; and

(4) against state government officers for violating STATE law.

NOT BARRED: Actions :

(1) against local governments;
(2) by US or or other state governments;
(3) Bankruptcy proceedings
Interstate Privileges and Immunities (Article IV, Section 2)
Prohibits discrimination by a state against nonresidents.

Discrimination must involve FUNDAMENTAL RIGHTS, such as those involving important economic activity (right to earn a livelihood) or civil liberties.

A state law discriminating against nonresidents may be valid if the state has a substantial justification for the different treatment. State must show that nonresidents either cause or are part of the problem it is attempting to solve and there are no less restrictive means.

Corporations not protected.
National Privileges and Immunities (14th Amendment)
Prohibits states from denying their citizens the privileges and immunities of national citizenship, such as the right to petition Congress for redress of grievances, the right to vote for federal officers, the right to enter public lands, the right to interstate travel, and any other right flowing from the distinct relation of a citizen to the US Government.

Corporations not protected.
Contract Clause (Article I)
Prohibits STATES ONLY from enacting any law that retroactively impairs existing contract rights.

Substantial impairment of existing contract rights valid only if:
(1) Legislation must serve an important and legitimate public interest; and
(2) must be reasonable and narrowly tailored means of promoting that interest.

Public contracts will receive stricter scrutiny. There is no substantial impairment to a public contract if state has power to revoke, alter, or amend the contract.
Ex Post Facto Clauses
Neither state or federal government may pass ex post facto law (law that retroactively alters the criminal law in a substantially prejudicial manner).

Ex post fact if:
(1) makes criminal what was innocent;
(2) prescribes great punishment for act that was prescribed for when it was committed; or
(3) reduces the evidence required to convict from what was required when act was committed.
Bill of Attainder
A legislative act that inflicts punishment without a judicial trial.

Both federal and state governments are prohibited from passing a bill of attainder.
Congress' Commerce Power
Congress' power to regulate interstate commerce is plenary and pervasive, but NOT exclusive. States may regulate, so long as not superseded, preempted, or otherwise prohibited by Congress.

Congress may also permit state regulation of interstate commerce that would otherwise violate the Commerce Clause.
Dormant Commerce Clause
If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce if the regulation:
(1) does not discriminate against out-of-state competition to benefit local interests; and
(2) is not unduly burdensome.

Discriminatory Regulations: state or local regulations that discriminate against interstate commerce to protect local economic interests are INVALID, unless:
(i) NECESSARY to important state interest;
(ii) State is market participant.

Nondiscriminatory law may be invalidated if it burdens interstate commerce and burden outweighs legitimate local interest.
How do you ALWAYS begin a constitutional law essay?
Restrictions on Federal Courts:

Political questions
Advisory opinions
Equal protection
Substantive due process
Procedural due process
State action
Congressional Power:

Fiscal powers
Aliens and naturalization
Commerce power
Tax power
Spending power
Foreign affairs power
Election regulation
War power
Postal power
Enforcement of civil rights power
Property power
Indigent plaintiff
Waiver of fees imposed on indigent plaintiff is required when the imposition of a fee would deny a fundamental right to the indigent.
Procedural Due Process (5th & 14th Amendments)
The government shall not take a person's life, liberty, or property without due process of law.

Only applies to intentional government acts.

A deprivation of a legitimate LIBERTY interest occurs when a person:

(1) loses significant freedom of action; or
(2) is denied a freedom provided by the Constitution or statute.

PROPERTY interest must be a legitimate claim or "entitlement" to the benefit under state or federal law.
Examples: public education, welfare benefits, continued public employment (unless "at will").

(1) the importance of the individual interest involved;
(2) the value of specific procedural safeguards to that interest; and
(3) the government interest in fiscal and administrative efficiency.

Court will always require (1) fair procedures and (2) an unbiased decision maker.

Normally, person whose interest is being deprived should receive (3) notice and (4) opportunity to respond BEFORE the termination of the interest.

However, post-termination hearing is allowed, where pre-termination hearing is impracticable.
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