TABLE OF CONTENTS | Case Brief for Law Students

Chapter 1

INTRODUCTION

I. ROADMAP OF CONSTITUTIONAL LAW

II. THREE STANDARDS OF REVIEW

A. Three standards

B. Consequences of choice

C. When used

Chapter 2

THE SUPREME COURT’S AUTHORITY

I. REVIEW OF ACTS OF CONGRESS (MARBURY v. MADISON)

II. REVIEW OF STATE COURT DECISIONS

A. General principles of review

B. Martin v. Hunter’s Lessee

C. Independent and adequate state grounds

III. CONGRESS’ CONTROL OF FEDERAL COURT JURISDICTION

A. The problem generally

B. McCardle case

C. Limits on congressional power

D. Modern congressional controls on federal jurisdiction

IV. THE SUPREME COURT’S JURISDICTION TODAY

A. Limited scope of discussion

B. Certiorari

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THE SUPREME COURT’S AUTHORITY

Chapter 3

FEDERALISM AND FEDERAL POWER GENERALLY

I. THE CONCEPT OF FEDERALISM

A. Nature of federalism

B. Federal government has limited powers

C. Specific powers

II. McCULLOCH v. MARYLAND

A. Doctrine of implied powers

B. McCulloch and the “Necessary and Proper” Clause

III. STATE OVERSIGHT OF THE FEDERAL GOVERNMENT — THE “TERM LIMITS” PROBLEM

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FEDERALISM AND FEDERAL POWER GENERALLY

Chapter 4

THE FEDERAL COMMERCE POWER

I. THE COMMERCE CLAUSE GENERALLY

A. Introduction

B. Limitation on states vs. limitation on Congress

C. Chronological approach

II. CASES PRIOR TO 1933

A. The groundwork — Gibbons v. Ogden

B. Inactive

C. Economic regulation

D. “Police power” regulations and the commerce-prohibiting technique

III. COURT BARRIERS TO THE NEW DEAL

A. The New Deal threatened

B. The Schechter Poultry (“Sick Chicken”) case

C. The Carter Coal case

D. The Court-packing plan

IV. THE POST-NEW-DEAL TREND

A. The post-New-Deal trend generally

B. Expanded “substantial economic effect”

C. The “cumulative effect” theory

D. The commerce-prohibiting technique (police power regulations)

E. Civil rights legislation

V. SOME MODERN LIMITS ON THE COMMERCE POWER

A. Some limits still exist

B. Can’t ban “guns near schools” (U.S. v. Lopez)

C. Violence against women (Morrison)

D. Regulation of non-commercial activity as part of broader regulatory scheme

E. Forcing someone to buy a product (N.F.I.B. v. Sebelius)

F. Summary of the modern limits on the Commerce power

G. Summary of modern view

VI. THE TENTH AMENDMENT AS A LIMIT ON CONGRESS’ POWER

A. Apparent irrelevance of Tenth Amendment

B. Once again irrelevant

C. Overruling of National League of Cities

D. Significance of case

E. Use of state’s lawmaking mechanisms

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THE FEDERAL COMMERCE POWER

Chapter 5

OTHER NATIONAL POWERS

I. THE TAXING POWER

A. Several provisions on tax

B. Special rules on taxes

C. Regulatory effect

Disguised regulation
Modern rules
Effect of calling a measure a “penalty” (the Affordable Care case)

II. THE SPENDING POWER

A. The spending power generally

B. Not limited to enumerated powers

C. Achievement of otherwise disallowed objectives

D. Spending program can’t “coerce” the states (N.F.I.B. case)

E. “General welfare” still required

III. THE WAR, TREATY AND FOREIGN AFFAIRS POWERS

IV. OTHER POWERS

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OTHER NATIONAL POWERS (ENTIRE CHAPTER)

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OTHER NATIONAL POWERS

Chapter 6

TWO LIMITS ON STATE POWER: THE DORMANT COMMERCE CLAUSE AND CONGRESSIONAL ACTION

I. THE DORMANT COMMERCE CLAUSE — REGULATION

A. Negative implications of federal power

B. Negative implications of the Commerce Clause

C. Traditional approach

D. Early interpretations

E. Rise of the “local” vs. “national” distinction

F. Modern approach

G. Application of the test

H. Regulation of transportation

I. State barriers to incoming trade

Protection of economy
Health and safety regulations
Baldwin case
Valid health objective not sufficient
Intentional discrimination (the Washington Apple case)
Discrimination by city against out-of-towners
Facially neutral statutes and the meaning of “discrimination”
Personal mobility

J. State barriers to outgoing trade

K. Local-processing requirements

L. Environmental regulation

M. State as purchaser or subsidizer

II. STATE TAXATION OF INTERSTATE COMMERCE

III. CONGRESSIONAL ACTION — PREEMPTION AND CONSENT

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TWO LIMITS ON STATE POWER (ENTIRE CHAPTER)

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TWO LIMITS ON STATE POWER

Chapter 7

INTERGOVERNMENTAL IMMUNITIES AND INTERSTATE RELATIONS

I. TAX IMMUNITIES

II. FEDERAL IMMUNITY FROM STATE REGULATION

III. STATE IMMUNITY FROM FEDERAL REGULATION

IV. INTERSTATE RELATIONSHIPS

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INTERGOVERNMENTAL IMMUNITIES & INTERSTATE RELATIONS

Chapter 8

SEPARATION OF POWERS

I. DOMESTIC POLICY AND THE SEPARATION OF POWERS

A. General problem

B. No right to “make laws”

C. President’s veto power

The “pocket veto”
The “line item” veto
The legislative veto

D. Special prosecutor

E. Interference with, or undue delegation to, the Judicial Branch

II. FOREIGN AFFAIRS AND THE WAR POWERS

A. Special presidential role in foreign affairs

B. The war powers

Commitment of the armed forces abroad
Habeas corpus, and the rights of enemy combatants to it (Boumediene)

III. APPOINTMENT AND REMOVAL OF EXECUTIVE PERSONNEL

A. The President’s power of appointment

B. Buckley v. Valeo (the Election Law Case)

C. The President’s Recess Appointments power

D. The President’s right to remove appointees

E. Removal by Congress

F. Impeachment

IV. LEGISLATIVE AND EXECUTIVE IMMUNITY

A. Scope of discussion

B. Congress and the Speech and Debate Clause

C. Executive immunity

D. “Executive privilege”

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SEPARATION OF POWERS (ENTIRE CHAPTER)

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SEPARATION OF POWERS

Chapter 9

DUE PROCESS OF LAW

I. THE BILL OF RIGHTS AND THE STATES

A. The Bill of Rights generally

B. Enactment of the Civil War Amendments

C. Due process of law and “incorporation”

D. The Fifth Amendment’s Due Process Clause

II. SUBSTANTIVE DUE PROCESS — BEFORE 1934

A. Introduction

B. Early history of substantive due process

C. Lochner and its aftermath

III. SUBSTANTIVE DUE PROCESS — THE MODERN APPROACH TO ECONOMIC AND SOCIAL-WELFARE REGULATION

A. Initial decline of Lochnerism

B. Judicial abdication in economic cases

C. Summary of modern approach

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SUBSTANTIVE DUE PROCESS — ECONOMIC AND SOCIAL-WELFARE REGULATION

IV. SUBSTANTIVE DUE PROCESS — PROTECTION OF NON-ECONOMIC RIGHTS, INCLUDING “FUNDAMENTAL” RIGHTS

A. Overview

B. The early non-economic cases

C. Birth control (the Griswold case)

D. Post-Griswold contraceptive law

E. Abortion generally

F. Roe v. Wade

G. The modification of Roe by Casey

H. Post-Roe developments, generally

I. Consent

J. Public funding of abortions

K. Types of abortion allowable

L. Future of abortion regulation

M. Post-Roe regulation of contraception (Carey case)

N. Family relations

O. Sexuality, including homosexuality

P. The “right to die”

Q. Other assorted autonomy issues

Autonomy of mental processes
Rights of committed mentally retarded
Prohibition of risk-taking
The right to travel
Right to occupation

R. No right to be protected from privately-imposed harm

S. Looking back on the “fundamental value” approach

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SUBSTANTIVE DUE PROCESS — PROTECTION OF NON-ECONOMIC RIGHTS

V. PROCEDURAL DUE PROCESS

A. Introduction

B. “Liberty” and “property” before 1970

C. Growth in the ’70s of “entitlements”

D. Narrowing of “entitlements” theory

E. The tenure cases (Roth and Perry)

F. Breadth of injury is weighed

G. Freedom from arbitrary procedures

H. Narrowing of protected “liberty” interests

I. Rights of students

J. What process is due

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PROCEDURAL DUE PROCESS

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DUE PROCESS OF LAW

Chapter 10

EQUAL PROTECTION

I. INTRODUCTION

A. Historical overview

B. Operation of the Clause 250

II. ECONOMIC AND SOCIAL LAWS — THE “MERE-RATIONALITY” STANDARD

A. Deferential review

B. Broad reading of “legitimate public objective”

C. “One step at a time” approach

D. Determining a statute’s “purpose”

E. Legal disabilities motivated by “animus” towards unpopular groups

F. Highly deferential standard

G. Summary of Court’s approach

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EQUAL PROTECTION — ECONOMIC & SOCIAL LAWS

III. SUSPECT CLASSIFICATIONS, ESPECIALLY RACE

A. Suspect classes generally

B. Groups covered

C. “Purposeful” discrimination

D. Other requirements for strict scrutiny

E. How strict is “strict scrutiny”

F. Segregation and its remedies

IV. AFFIRMATIVE ACTION AND “BENIGN” DISCRIMINATION

A. “Benign” discrimination generally

B. Benign use of sex classes

C. Race

D. Desegregation

E. Preferential admissions to universities

F. Admissions to public secondary schools by race-conscious pupil-assignments (the Parents Involved case)

G. Minority set-asides by states and cities

H. Set-asides by Congress

I. Hiring, lay-offs, and promotions

J. Drawing of election districts

K. Harm to members of minority

L. Law enforcement, prison administration and military operations

M. Popular votes to repeal affirmative action

V. CLASSIFICATIONS BASED ON SEX

A. Introduction

B. Traditional deference by Court

C. Stricter review

D. Middle-level review not always fatal

E. Stereotypical thinking rejected

F. Remedial statutes

G. Discriminatory purpose required

H. “As applied” challenges

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EQUAL PROTECTION — SUSPECT CLASSES, AFFIRMATIVE ACTION AND CLASSIFICATIONS BASED ON SEX

VI. CLASSIFICATIONS BASED ON ALIENAGE

VII. ILLEGITIMACY

VIII. MENTAL RETARDATION AND MENTAL ILLNESS

A. Mental retardation

B. Mental illness

IX. GENERAL PRINCIPLES OF MIDDLE-LEVEL SCRUTINY

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EQUAL PROTECTION — ALIENAGE AND ILLEGITIMACY

X. UNEQUAL TREATMENT OF GAYS, AND THE BANNING OF
SAME-SEX MARRIAGE

A. Issues generally

B. Singling out of gays because of animus (Romer v. Evans)

C. The federal Defense of Marriage Act struck down (Windsor)

D. States must allow same-sex marriage (Obergefell)

XI. FUNDAMENTAL RIGHTS

A. Introduction

B. Education

C. Marriage as fundamental right

Marriage by parent who is in default on child support
Same-sex marriage

D. Adult sexual relations

E. Voting rights

F. Access to the ballot

State interest in regulating elections
Interest of candidates, parties and voters
Candidate eligibility rules
Party organization and popular support
Filing fees
Right to be a candidate

G. Access to courts

H. The right to travel

I. Wealth classifications

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EQUAL PROTECTION — UNEQUAL TREATMENT OF GAYS; FUNDAMENTAL RIGHTS

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EQUAL PROTECTION

Chapter 11

MISCELLANEOUS CLAUSES: 14TH AM. PRIVILEGES OR IMMUNITIES; TAKING; CONTRACT; RIGHT TO BEAR ARMS; EX POST FACTO; BILLS OF ATTAINDER

I. THE 14TH AMENDMENT’S PRIVILEGES OR IMMUNITIES CLAUSE

II. THE “TAKING” CLAUSE

A. The Taking Clause generally

B. The taking/regulation distinction

C. Requirement of “public” use

III. THE “CONTRACT” CLAUSE

A. The “Contract” Clause generally

B. Protection of public agreements

C. Protection of private contracts

D. More deferential standard

E. Incidental effect on contracts

F. Other retroactivity issues

IV. THE SECOND AMENDMENT “RIGHT TO BEAR ARMS”

V. EX POST FACTO LAWS

VI. BILLS OF ATTAINDER

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MISCELLANEOUS CLAUSES (ENTIRE CHAPTER)

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MISCELLANEOUS CLAUSES

Chapter 12

STATE ACTION

I. INTRODUCTION

II. THE “PUBLIC FUNCTION” APPROACH

A. The “public function” approach generally

B. The White Primary Cases

C. Company towns and shopping centers

D. Parks and recreation

E. The requirement of state “exclusivity”

F. Future of “public function” doctrine

III. “NEXUS” — THE SIGNIFICANCE OF STATE INVOLVEMENT

A. The “nexus” theory generally

B. “Commandment”

C. “Encouragement” by the state

D. “Symbiosis” between state and private actor

E. Involvement or “entanglement” by state

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STATE ACTION (ENTIRE CHAPTER)

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STATE ACTION

Chapter 13

CONGRESSIONAL ENFORCEMENT OF CIVIL RIGHTS

I. INTRODUCTION

II. CONGRESS’ POWER TO REACH PRIVATE CONDUCT

A. Purely private conduct

B. Early decision

C. The Guest case

D. Morrison wipes out the expansive interpretation of Guest

E. Current state of the law

F. The Thirteenth Amendment and private conduct

G. Violation of other constitutional rights

III. CONGRESS’ POWER TO REMEDY VIOLATIONS OF THE CIVIL WAR AMENDMENTS

A. General problem

B. Congress’ broad “remedial” powers

C. The Voting Rights Act

Historical background of the V.R.A.
Voting Rights Act of 1965
Upheld in South Carolina v. Katzenbach
Obligation to rely on current data (Shelby County v. Holder)

IV. CONGRESS’ POWER TO REDEFINE THE MEANING AND SCOPE OF CONSTITUTIONAL GUARANTEES

V. CONGRESS’ POWER TO ABROGATE THE ELEVENTH AMENDMENT, AND THUS AUTHORIZE PRIVATE DAMAGE SUITS AGAINST THE STATES FOR DISCRIMINATION

A. Private money-damage suits against states for discrimination

B. The Eleventh Amendment

C. Age and disability discrimination

D. Significance of standard of review

E. Right to allow damages for actual constitutional violations

F. 3-step analysis

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CONGRESSIONAL ENFORCEMENT OF CIVIL RIGHTS

Chapter 14

FREEDOM OF EXPRESSION

I. GENERAL THEMES

A. Text of First Amendment

B. Two broad classes

C. Analysis of “track one” cases

D. Analysis of “track two” cases

E. Regulation of “pure conduct”

F. Unprotected categories

II. ADVOCACY OF ILLEGAL CONDUCT

A. Introduction

B. The “clear and present danger” test

C. The Learned Hand test

D. Statutes directly proscribing speech

E. Threat of communism and the Smith Act

F. The modern standard

III. OVERBREADTH AND VAGUENESS

A. Overbreadth

B. Vagueness

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FREEDOM OF EXPRESSION — GENERAL THEMES; ADVOCACY OF ILLEGAL CONDUCT; OVERBREADTH AND VAGUENESS

IV. REGULATION OF CONTEXT — “TIME, PLACE AND MANNER”

A. Context regulations generally

B. Meaning of “narrowly tailored”

C. “Leave open alternative channels” requirement

D. Licensing

E. Intrusive speakers vs. right to be left alone

F. Canvassing and soliciting

G. Protest and persuasion on public property outside of abortion clinics

H. The hostile audience and “fighting words”

I. Offensive words and the sensitive audience

J. Regulation of “hate speech”

K. All speech not necessarily created equal (the disfavoring of indecent speech)

L. Regulation of indecency in media

M. The public forum

N. Right of access to private places

V. SYMBOLIC EXPRESSION

A. Problem generally

B. Flag desecration

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“TIME, PLACE AND MANNER” RESTRICTIONS; SYMBOLIC EXPRESSION

VI. DEFAMATION, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND THE BANNING OF “FALSE SPEECH”

A. Regulation of defamatory and other false speech

B. Initially no protection

C. New York Times v. Sullivan

D. Extension to “public figures”

E. Private figures

F. Non-media defendants

G. Statements of no “public interest”

H. Statements of opinion

I. Intentional infliction of emotional distress

J. False statements of fact outside the defamation context

VII. OBSCENITY

A. Generally unprotected

B. Miller

C. Private possession by adults

D. Protection of children

E. Protection of animals, and the “animal crush video” issue

F. Other issues

VIII. COMMERCIAL SPEECH

A. Overview

B. The Virginia Pharmacy revolution

C. Regulation of lawyers

D. Commercial speech doctrine curtailed

E. Current status

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DEFAMATION, OBSCENITY AND COMMERCIAL SPEECH

IX. REGULATION IN THE CONTEXT OF POLITICAL CAMPAIGNS

A. Money in political campaigns, generally

B. Buckley v Valeo

C. Limits on aggregate contributions by an individual (McCutcheon)

D. “Soft money” and pre-election “issue ads” (McConnell, Wisconsin Right to Life and Citizens United)

E. Campaign spending by political parties

F. How low can limits be set

G. Corporate and judicial expression during campaigns

X. SOME SPECIAL CONTEXTS

A. Scope

B. Schools

C. Furnishing of legal services by lay groups

D. Government as speaker or as funder of speech

XI. FREEDOM OF ASSOCIATION, DENIAL OF PUBLIC JOBS OR BENEFITS, AND UNCONSTITUTIONAL CONDITIONS

A. Freedom of association generally

B. Right not to associate

C. Ways of interfering with right

D. Illegal membership

E. Denial of public job or benefit

F. Compulsory disclosure

G. The bar membership cases

H. Unconstitutional conditions

XII. SPECIAL PROBLEMS CONCERNING THE MEDIA

A. Summary of issues

B. Special role for the press

C. Prior restraints

D. Governmental demands for information held by press

E. Disclosure of confidential or illegally-obtained information

F. Right of access to government-held information

G. Regulation of broadcast media

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REGULATION IN POLITICAL CAMPAIGNS; FREEDOM OF ASSOCIATION; DENIAL OF PUBLIC JOBS OR BENEFITS; SPECIAL PROBLEMS OF THE MEDIA

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FREEDOM OF EXPRESSION

Chapter 15

FREEDOM OF RELIGION

I. INTRODUCTION

II. THE ESTABLISHMENT CLAUSE

A. Background

B. Religion and the public schools

Religious instruction
Prayer reading
Modification of curriculum

C. Sunday closing laws

D. Property-tax exemptions for churches

E. Military and prison chaplains

F. Helping religious groups spread their message

G. The “excessive entanglement prong”

H. Entanglement by church involvement in government affairs

I. Ceremonies and displays

J. No preference for one sect over others

K. Financial aid to religious schools

Three-prong test
Broad themes
Particular programs
Transportation
Textbooks and other materials
Salary supplements
Furnishing of teachers
Services
Tuition vouchers
Scholarships for religious study
Aid to higher education

III. THE FREE EXERCISE CLAUSE

A. Introduction

B. Intent to interfere with religion

C. Incidental burdensome effect, and required accommodations

1990 shift
Pre-1990 law
The 1990 “generally-applicable rule” case (Employment Div. v. Smith)
Anti-discrimination laws, and a group’s right to pick its “ministers”

D. Military service and conscientious objection

E. Public health

F. What constitutes a “religious belief”

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FREEDOM OF RELIGION

Chapter 16

JUSTICIABILITY

I. INTRODUCTION

II. ADVISORY OPINIONS

III. STANDING

A. Nature of “standing” generally

B. Federal taxpayer and citizen suits

C. Standing not based on taxpayer or citizen status

D. The “injury in fact” requirement

Non-economic harms
Must be “actual or imminent,” not “speculative”

E. Harm suffered by many

F. Causation

G. Special deference when plaintiff is a state acting for its citizens

H. Third-party standing

I. “Prudential” standing

IV. MOOTNESS

V. RIPENESS

VI. THE 11TH AMENDMENT, AND SUITS AGAINST STATES

VII. POLITICAL QUESTIONS

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JUSTICIABILITY

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