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Judicial Power Judicial Review: Fed courts have power to hear acts involving legislative/executive branches and state laws involving fed law Jurisdiction a. Only Case/Controversy b. Supreme Court: original/concurrent jx with fed courts hearing i. Ambassadors, public ministers, consuls, state as a party ii. Suits between states iii. Discretionary Review 1. cases from state courts 2. cases from state appeals iv. Appeals: mandatory from district courts Limitations a. State Immunity: 11th i. Suits against states by citizen from that or dif state ii. Exceptions 1. Congress allows a. Equal protection 2. waived by state govt 3. uncon acts of state officials 4. suits against local govts
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Powers of States Valid: police power-10th, rational, not violate supremacy clause Tax: a. Impose non-discrim taxes on those with fed govt – not direct b. Limitations i. Nexus between tax and state ii. Fairly apportion iii. Related to service iv. Doesn’t discriminate against interstate commerce Regulate: cant interfere with fed govt – supremacy a. Dormant Commerce Clause
Standing Case or controversy a. Need actual dispute between parties b. Capable of judicial resolution c. No advisory opinions i. Injunctive/declaratory if: 1. proposed conduct 2. likelihood of future harm 3. or threatened imminent harm Standing a. Injury: need to be proper party i. Suffered personal injury 1. actual/imminent 2. denial of right ii. caused by challenged action iii. can be redressed by court: remedied by relief b. Taxpayer: generally no standing i. Exceptions 1. fed action based on taxing/spending power violated establishment cl 2. state action with expenditure of state funds c. Third Party i. Need personal right violated ii. Exceptions 1. Unable or unlikely to protect own rights 2. has special relationship with party 3. Brought by association a. Member has own right b. Germaine to purpose c. Individual participation is unnecessary d. Ripeness: actual/threat of immediate harm e. Mootness: not already resolved i. Exceptions 1. capable of repetition 2. voluntary to repeat 3. class action: other still bring f. Adequate & Independent State Grounds i. Supreme wont hear if: 1. good faith in state law 2. reversal of judgment wont change outcome of case g. Abstention: state crim/civil proceedings pending h. Political question: policy, other branch, respect
Individual Rights 1. State Action: need govt conduct a. Agent/officials
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i. No fed law in area ii. Regulate under police power iii. Need 1. rationally related to legitimate objective 2. not discriminate a. on face b. applied 3. Not unduly burden interstate commerce iv. Exceptions 1. substantial justification 2. necessary to achieve important state interest a. balance Privileges and Immunities clause a. States cant discriminate non-residents on basic rights unless i. Substantial justification ii. No less restrict means iii. 14th: travel, vote
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Speech Applies to states through 14th amendment Prohibits states from abridging freedom of speech a. Not absolute – based on content/manner Content-based regulation a. Regulate subject matter/viewpoint b. Protected speech – strict scrutiny c. Unprotected speech i. Defamation 1. public/private ii. Advocacy of unlawful conduct 1. intended and substantially likely to produce 2. imminent unlawful conduct iii. Fighting words 1. towards person 2. likely to provoke ordinary person to violence iv. Obscenity 1. consider contemporary local community standards 2. appeals prurient interest 3. depects sex in offensive way 4. as whole lacks serious literary, artistic, political value v. Commercial speech 1. if false/deceptive 2. other valid commercial if a. directly advances govt interest b. no more than necessary
b. Public function – private individual c. Significant involvement in private conduct Due Process a. Substantive i. Prohibits intentional deprivation life, liberty, property ii. Fundamental rights 1. religion, association, speech, privacy a. Privacy i. Contraception, abortion, marriage, procreate, relatives living together iii. Standard of review 1. Strict: a. fundamental rights b. burden govt to show law is necessary to achieve comp c. narrowily tailored, least restrictive means 2. Rational: a. Affects important rights b. Economic/social: employment/min wage, trade/profes c. Burden p to show rationally related to legitimate govt b. Procedural i. Liberty: physicial restraint, reputation, choice, marry, pursue job ii. Property: legitimate entitlement – statute, contract, custom iii. Balance: 1. risk of error in procedure 2. importance of interest to individual 3. govt interest in efficiency 4. cost v. value of procedure requested iv. Examples 1. Notice&Hearing: welfare benefits, pre-judgment attach for gov custody of child, post hearing social security
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Speech Cont’d Content-neutral regulation a. Regardless of content b. Mid level scrutiny – narrow tailor, signif govt int, no alt c. Symbolic i. Speech through conduct ii. Regulation as to content – strict iii. Regulation directed at conduct – content neutral 1. narrow tailored 2. signif govt interest 3. leave alt open Regulation – Time, Place, Manner a. Public/Designated Public forum – traditional i. Content neutral 1. narrowily tailored 2. serve signif interest 3. leave alt channels open b. Nonpublic forum i. Open to public for specific purpose – airport, jail, sidewalk, court, class,
ii. Rational basis 1. rationally related 2. legit govt interest consistent with purpose of property 3. leave alt open c. Private property i. Can be restricted ____________________________________________________________ Facial Attacks 1. Vagueness: lacks ascertainable standards to what is prohibited 2. Overbreadth: punishes all speech – unprotected and protected 3. Prior Restraint: prohibits prior to communication a. Injunctions i. Valid if: extremely important interest b. Licenses: i. Valid if: content neutral, cleat standard, reasonable