CON LAW II

what is criminal law

• a person has allegedly committed an offense against the people of the state

• Prosecutor, defendant, potential for jail time

• Mostly up to the states (ex: murder = state crime) & tried by state courts

what is civil law

• one person has committed an alleged offense against another & caused damage

• Not crimes; no potential for jail time

• Someone who loses civil case = ordered to pay restitution/damages to other party

what are the 3 main areas of civil law

contracts, torts, real property

what is a tort

1 party has damaged another party outside of a contractual relationship (ex: getting hit by a car)

what is conflict of laws

• law often doesn’t provide a yes/no answer; multiple entities can have authority to make laws about the same things

• Ex: it’s both illegal (under federal law) & legal (under DC law) to possess marijuana in DC

• No entity exists to resolve these conflicts; it’s no one’s job to proactively ensure the law provides clear answers and that 2 areas of law don’t conflict with each other

what is a legal person/personality

• any human or nonhuman that has rights/obligations in the law

• All humans = legal persons; not all legal persons = humans

  • ex: corporations, estates, governments, PACs, organizations, universities

• Nonhuman legal persons have a group of humans to administer it

  • ex: board of directors, estate executor, board of trustees

• Different types of legal persons have different rights & obligations under the law

  • Ex: voting, driver’s license

what is rights allocation

• Anytime the government grants a right, it’s taking away rights from other people

• No creation/reduction of rights; Court merely reallocates rights

• Cases can be both rights diminishing AND rights enhancing

• Ex: First Amendment gives people the right to free speech but also takes away the government’s right to censor

• Ex: right to privacy takes away government’s right to intrude on privacy

• Ex: Brown v. Board granted the right of black students to attend desegregated schools but also took away the right of white kids to attend an all-white school

• Ex: Dobbs took away the right to abortion but also granted states’ rights to regulate abortion

Barron v. Baltimore (1833)

held that BoR doesn’t apply to the states; rights granted in BoR only apply relative to federal government

why is the privileges & immunities clause important

• first time the US Constitution says “no state shall”

• First time the Constitution limited states’ power relative to the people

• States can’t take away privileges & immunities of being a US citizen

how is the 14th Amendment due process clause different from the 5th Amendment due process clause

14th Amendment limits states from depriving people of life/liberty/property; 5th Amendment limits Congress/federal government from doing so

what is incorporation

taking a piece of the 14th Amendment and applying a part of the BoR to the states

Slaughterhouse cases

• New Orleans centralized slaughterhouses

• Private butchers lost slaughterhouses and had to move to centralized location/pay fee

• Butchers sued under Fourteenth Amendment; argued that the city deprived them of privileges/immunities and they had a right to conduct business by virtue of being citizens

• SCOTUS held that privileges & immunities clause only applies to specific rights granted by US federal government to US citizens; doesn’t apply to entire BoR

  • Held that privileges & immunities clause does not incorporate BoR

• Began movement to apply BoR to states through Due Process clause

  • Argued that “life, liberty, and property” includes BoR

Gitlow v. New York (1925)

• First Amendment freedom of speech applies to states through Fourteenth Amendment due process clause

• If a state violates freedom of speech, they violate the federal Constitution

• Began process of incorporating BoR to the states

what is total incorporation

• Court should extend the entire BoR to states through Due Process clause

• Argued by Justice Harlan in 1844 dissent

• This has never been the opinion of the entire Court

what is selective incorporation

• Court should pick & choose specific rights to apply to the states

• Justice Frankfurter argued in 1937 that a right should apply to states under selective incorporation if it is:

  • Implicit in the concept of ordered liberty

  • Deeply rooted in our nation’s history & traditions

    • Dobbs decision relied on these factors & Alito argued that the right to an abortion was not deeply rooted in US history/tradition

Adamson v. California (1947)

• Justice Murphy dissent argued that 14th Amendment due process clause could incorporate rights that apply to states even if they’re not explicitly enumerated in BoR

• Argued that some rights are fundamental rights and states may not violate them even if they’re not explicitly mentioned in BoR because of Due Process clause

  • Due Process incorporates both enumerated AND unenumerated rights if they meet the 2 criteria

• 2 part definition to determine whether a right is fundamental that Frankfurter posited:

  • Implicit in the concept of ordered liberty

  • Deeply rooted in our nation’s history & traditions

Griswold v. Connecticut (1965)

• CT law prohibited use of birth control to prevent premarital sex

• Constitution does not explicitly include the word “privacy”

• Griswold had to base constitutional challenge in a specific right & argue that right to privacy = fundamental right applied to the states

• Court held that a right to privacy is in the Constitution because it implicitly originates from the penumbra & emanations (shadows/lights) of other rights (1, 3, 4, 5, 9)

  • Applies to states through 14th Amendment because it’s a fundamental right

  • Embraced selective incorporation plus

• All other SCOTUS privacy cases build on Griswold (ex: Roe, Dobbs)

what is selective incorporation plus

incorporate some of what’s in the BoR and some of what isn’t

how can Dobbs be viewed under incorporation theory

• Alito wrote that the right to abortion is not a fundamental right & doesn’t apply to the states under Due Process

  • Abortion is not implicit in concept of ordered liberty & deeply rooted in history/tradition

• Thomas dissent argued that right to privacy itself from Griswold isn’t fundamental

  • Argued for selective incorporation instead of selective incorporation plus

what is procedural due process

protects procedural rights (ex: right to attorney, fair trial, etc.)

what is substantive due process

protects substantive rights (ex: privacy, abortion)

why is Lochner v. New York important in the context of substantive due process

• decided by conservative court & construed as very bad SCOTUS decision

• relied on substantive due process and was overturned by liberal court

• Griswold & Roe brought back this concept of substantive due process

what are legal elements

• components of a legal doctrine; requirements that must be filled for a legal action to succeed

• All elements must be proved to establish something

• Ex: burglary used to have 5 elements → breaking, entering, in a dwelling, at night, to commit a felony

  • Could only convict someone of burglary if you prove all 5 elements by convincing a jury

• Ex: elements of murder → killing, of a human, by a human, on purpose, with malice of forethought/premeditation

  • Some states require sixth element of a special victim for 1st degree murder (child or police officer)

  • Difference between different types of murder (manslaughter, 1st degree, 2nd degree, etc.) = ability to prove different elements

• Claims require systematically proving each legal element

what is justiciability

the ability of a court to adjudicate a dispute

what are doctrines of avoidance

ways for courts to avoid adjudicating a dispute:

• Standing

• Ripeness

• Mootness

• Political questions

what is standing

• a person has standing only if that person can demonstrate a concrete stake in the outcome of the controversy & an impairment of its rights by the government

• There must be some damage to them that can be ameliorated by the courts

• Can’t sue to assert the rights of others

what are the 3 elements necessary to establish standing

injury, causation, redressability

what is injury in establishing standing

• person must be able to assert they’ve been injured by the government OR that the government made a clear threat to cause them a future injury

• Can be financial; doesn’t have to be physical injury

• Plaintiff may only assert an injury it personally has suffered

• Injury must be specific & more than theoretical injury

what is causation in establishing standing

injury must be traceable to the alleged conduct of the defendant

what is redressability in establishing standing

• a potential ruling that’s favorable to the plaintiff must be able to eliminate the harm to the plaintiff

• Must be a way of fixing the damage

• Amount of compensation should be equal to the damage (sometimes difficult to quantify damage)

• should compensate injured party to the point they’re indifferent to the injury/harm because of the compensation

what are the limited circumstances/exceptions where actors can have standing to assert the rights of others?

• When the injured party is unlikely to be able to assert their rights

  • Ex: Jurors have a right to not be discriminated against in jury selection but might not know that they were discriminated against; criminal defendant can thus sue on behalf of potential jurors

• When an injury to a third party affects the plaintiff’s relationship to the third party

  • Ex: bartenders suing on behalf of patrons, doctors suing on behalf of patients

• An organization can sue on behalf of its members

  • Ex: NRA, ACLU

Hollingsworth v. Perry (2013)

• California approved referendum on Proposition 8 to ban same-sex marriage

• Same-sex couple wanted to get married and couldn’t; sued state of CA claiming that Prop 8 violated the Equal Protection clause

• State of California agreed with district court that Prop 8 was unconstitutional & didn’t want to appeal

• Proponents of Prop 8 appealed & replaced state of CA as a party

  • Argued that they had an injury because allowing same-sex couples to marry = nontraditional/immoral

• SCOTUS dismissed for lack of standing

  • Petitioners couldn’t demonstrate injury; weren’t instructed to do or stop doing anything

• Court took stance on substantive issue of same-sex marriage

  • Policy decision hidden under legal technicality

what is ripeness

• A plaintiff is not entitled to review of law before it’s enforced

• Congress can pass unconstitutional laws that remain on the books for decades

  • Can’t get struck down through judicial review until it’s before the Court

what is mootness

the plaintiff’s injury has already ended

what is the exception to mootness

• reasonable expectation that the same person will be subjected to the same injury again; capable of repetition yet evading review

• Ex: pregnancy (Roe v. Wade)

what are political questions

• where the question of the case is too political for the Court to step in

• Allows Court to avoid ruling on things it doesn’t want to rule on; avoidance doctrine

what are the 6 elements of political questions established in Baker v. Carr by Justice Brennan

1. a textually demonstrable constitutional commitment of the issue to a political branch

• It’s another branch’s job to do this

2. a lack of judicially discoverable/manageable standards for resolving it

• Courts don’t know how to handle this

3. the impossibility of deciding without an initial policy determination of nonjudicial discretion

• In order to make this decision you have to make a policy choice

4. the impossibility of a court being able to take independent resolution while respecting the other branches

• If the Court rules on this it would be stepping on another branch’s toes

5. an unusual need for unquestioning adherence to a political decision already made

• Must defer to another branch of government

6. potentiality of embarrassment from multiple different pronouncements from various branches on the same question

• Embarrassing to have different branches express different opinions on this issue

Luther v. Borden (1849)

what constitutes a state’s republican form of government = political question

Goldwater v. Carter (1979)

questions regarding conduct of foreign relations = political question

Nixon v. U.S. (1993)

procedures used by Senate to try impeachments = political question

what’s an example of how SCOTUS lacks enforcement power & money

Southern states resisted Brown v. Board & Eisenhower had to send national guard for enforcement

what is original jurisdiction

first court to hear a case

what is appellate jurisdiction

hearing an appeal from a lower court

what jurisdiction does SCOTUS have

• SCOTUS has very narrow original jurisdiction (Article III, Section 2)

  • Cases affecting ambassadors, public ministers/consuls, cases where a state is a party

• SCOTUS mostly exercises appellate jurisdiction over appeals from US Circuit Courts or state supreme courts

how do most SCOTUS cases reach the Court

• filing petition for writ of certiorari to appeal decision to SCOTUS

  • writing appeal & submitting to the Court

• Court has discretionary jurisdiction over writs for cert; doesn’t have to take any

what is the rule of four

justices hold vote in conference & if 4 justices vote to hear the case they’ll grant cert

what is mandatory jurisdiction

rare circumstances where SCOTUS has to hear a case only if the appeal comes from a federal district court that had a 3 judge panel & granted/denied injunctive relief

when will SCOTUS hear cases from state supreme courts

• only if they involve a question of federal law

• If the case only dealt with a state Constitution the Court won’t hear it

• Can only appeal to SCOTUS if state supreme court’s decision violates Constitution

what are ways for courts to prevent injury before it occurs

declaratory judgment, injunction, temporary restraining order