CRAC Shells

EPC SHELL: Conclusion

The law is constitutional/unconstitutional because it [passes/fails] [level of scrutiny].

EPC SHELL: Rule

Under the 14th Amendment, the government may not deny equal protection of the laws. The level of scrutiny depends on the classification used.

EPC SHELL: Step 1

STATE ACTION: The Equal Protection Clause applies because [government actor].

EPC SHELL: Step 2 Classification

• Facial? → triggers scrutiny automatically

• Facially neutral? → must show:

  • discriminatory purpose + effect ( cases: Washington v. Davis, Arlington Heights)

If no intent → Rational Basis

EPC Shell: Step 3 Level of Scrutiny

• Race / national origin → Strict Scrutiny

• Gender → Intermediate Scrutiny

• Everything else → Rational Basis

EPC SHELL Step 4: Apply strict scrutiny

Compelling interest

Narrowly tailored (no over/under-inclusiveness)

“Racial classifications are presumptively invalid and rarely survive.”

ANALYSIS:

• The government’s interest is/is not compelling because ________.

• The law is/is not narrowly tailored because ________ (over/underinclusive, less restrictive alternatives).

EPC SHELL Step 4: Intermediate scrutiny

Important interest

Substantially related

• “exceedingly persuasive justification” (gender)

“The government may not rely on overbroad generalizations about gender.”

ANALYSIS:

• The government’s interest is/is not important because ________.

• The law is/is not substantially related because ________.

• The justification does/does not rely on stereotypes.

EPC Shell Step 4: Rational Basis

• Legitimate interest

• Rationally related

• Highly deferential

BUT: If animus → fails (Romer, Cleburne, Moreno)

ANALYSIS:

• The government has a conceivable legitimate interest in ________.

• The law is/is not rationally related because ________.

If animus:

• The law appears motivated by animus because ________.

EPC SHELL: Conclusion again

The law is constitutional/unconstitutional because it [passes/fails] [level of scrutiny].

SDP Shell: Conclusion

The law is constitutional/unconstitutional because it [does/does not] infringe a fundamental right and [passes/fails] the applicable level of scrutiny.

SDP Shell: rule

Substantive Due Process protects fundamental rights from government interference.

SDP Shell: Step 1 ID the right

Carefully define it (THIS IS HUGE POST-** Glucksberg/Dobbs)

• Enumerated → fundamental

• Unenumerated → must be:

  • deeply rooted in history

  • implicit in ordered liberty

SDP Shell: Step 2 infringement?

Must be:

• Direct and substantial (not incidental)

SDP Shell: Step 3 level of scrutiny

• Fundamental → Strict Scrutiny

• Not fundamental → Rational Basis

SDP Shell: Step 4 apply

Strict Scrutiny

• Compelling interest

• Narrowly tailored

Rational Basis

• Legitimate interest

• Rationally related

SDP Shell: analysis

• The asserted right is ________.

• Defined narrowly, the right is ________.

• This right is/is not fundamental because ________ (history/tradition).

• The law does/does not directly and substantially interfere because ________.

SS:

• The government’s interest is/is not compelling because ________.

• The law is/is not narrowly tailored because ________.

RB:

• The government has a legitimate interest in ________.

• The law is/is not rationally related because ________.

SDP Shell: Conclusion again

The law is constitutional/unconstitutional because it [does/does not] infringe a fundamental right and [passes/fails] the applicable level of scrutiny.

PDP Shell: Conclusion

The government did/did not violate procedural due process because it did/did not provide constitutionally sufficient procedures before depriving the plaintiff of a protected interest.

PDP Shell: Rule

The Due Process Clause requires that the government provide notice and an opportunity to be heard before depriving an individual of life, liberty, or property.

Courts analyze PDP claims in three steps:

1. Protected interest

2. Deprivation

3. What process is due (Mathews balancing)

PDP Shell: Step 1 protected interest?

Property

A property interest exists where there is a legitimate claim of entitlement created by law (not a mere expectation).

Examples:

• Welfare benefits (Goldberg)

• Tenured/public employment (Roth / Perry)

Liberty

Includes:

• Freedom from restraint

• Stigma-plus (reputation + legal status change)

“Reputation alone is insufficient; there must be stigma plus alteration of legal status.”

PDP Shell: Step 2 deprivation

The government must have intentionally or recklessly deprived the individual of that interest.

“Negligent conduct does not trigger procedural due process.”

PDP Shell: Step 3 What Process Is Due (Mathews Test)

(1) Private Interest

How important is the interest?

• High → survival (e.g., welfare)

• Lower → financial/administrative benefits

(2) Risk of Error + Value of Additional Safeguards

• Are current procedures unreliable?

• Would added procedures reduce error?

(3) Government Burden

• Cost

• Administrative difficulty

PDP Shell: Step 4 what procedures are required?

After balancing, identify required procedures:

• Notice (timing + content)

• Hearing (pre vs post deprivation)

• Opportunity to present evidence

• Cross-examination

• Neutral decisionmaker

PDP Shell: Analysis

• The private interest is [high/low] because…

• The risk of error is [high/low] because…

• Additional safeguards would [help/not help] because…

• The government burden is [high/low] because…

PDP Shell: Conclusion again

Balancing these factors, the Constitution requires/does not require [specific procedures], and the government did/did not provide them, so the law is constitutional/unconstitutional.

FREE SPEECH SHELL: Conclusion

The regulation is constitutional/unconstitutional because it [is/is not] a permissible restriction on speech under the First Amendment.

FREE SPEECH SHELL: rule

The First Amendment protects speech from government restriction. Courts evaluate speech claims by determining:

1. Whether speech is protected

2. The type of restriction

3. The applicable level of scrutiny

FREE SPEECH SHELL: step 1 threshold issues

• State action?

• Substantial burden? (ban, penalty, licensing)

Check tripwires:

• Vagueness

• Overbreadth

• Prior restraint

If triggered → likely unconstitutional

FREE SPEECH SHELL: step 2 what kind of speech?

Unprotected

• Incitement (Brandenburg)

• Fighting words

• True threats

• Obscenity

If unprotected → regulation likely valid

Lesser Protected

• Commercial → Central Hudson

• Conduct → O’Brien

• Defamation → Sullivan

Fully Protected

• Political speech

• Viewpoint expression

FREE SPEECH SHELL: step 3 type of regulation

Content-Based

→ Strict Scrutiny

Viewpoint-Based

→ Almost always invalid

Content-Neutral

→ Intermediate Scrutiny (TPM)

FREE SPEECH SHELL: step 4 Forum Analysis (if gov property)

• Public forum → strict / TPM

• Limited forum → reasonable + viewpoint neutral

• Nonpublic → reasonable

ANALYSIS:

• This is a [public / limited / nonpublic] forum.

• The restriction is/is not reasonable and viewpoint neutral.

FREE SPEECH SHELL: step 5 apply scrutiny

Strict Scrutiny

• Compelling

• Narrowly tailored

Intermediate (TPM)

• Important interest

• Narrowly tailored (NO LRA required)

• Alternative channels

FREE SPEECH SHELL: scrutiny analysis

If UNPROTECTED

• The speech falls within ________ (e.g., incitement) because ________.

If STRICT SCRUTINY

• The government’s interest is/is not compelling because ________.

• The law is/is not narrowly tailored because ________.

If INTERMEDIATE (TPM)

• The government’s interest is significant because ________.

• The regulation is/is not narrowly tailored because ________.

• Alternative channels do/do not exist because ________.

FREE SPEECH SHELL: Conclusion, again

The regulation is constitutional/unconstitutional because it [is/is not] a permissible restriction on speech under the First Amendment.

FREE RELIGION SHELL: Conclusion

The law is constitutional/unconstitutional under the [Free Exercise / Establishment] Clause.

FREE RELIGION SHELL: step 1 identify the claim

• Free Exercise?

• Establishment?

• BOTH? (often!)

FREE RELIGION - FREE EXERCISE: rule

The Free Exercise Clause protects religious practice from government interference.

FREE RELIGION - FREE EXERCISE: step 1 sincere religious belief?

(Seeger / Ballard)

FREE RELIGION - FREE EXERCISE: step 2 Is the Law Neutral & Generally Applicable?

YES → Smith

• No strict scrutiny

• Rational basis applies

NO → Lukumi / Fulton

• Strict scrutiny

FREE RELIGION - FREE EXERCISE: step 3 Apply Scrutiny

• Compelling interest

• Narrowly tailored

FREE RELIGION - FREE EXERCISE: step 4 RFRA (if federal law)

• Substantial burden?

• If yes → strict scrutiny

FREE RELIGION - FREE EXERCISE: analysis

If STRICT SCRUTINY

• The government’s interest is/is not compelling because ________.

• The law is/is not narrowly tailored because ________.

If SMITH (RB)

• The law is rationally related to ________.

FREE RELIGION - FREE EXERCISE: conclusion

The _________ law is constitutional/unconstitutional under the Free Exercise Clause because it is/is not a neutral and generally applicable law and therefore does/does not survive the applicable level of scrutiny.

THINK: “Neutral + Generally Applicable?”

FREE RELIGION - ESTABLISHMENT CLAUSE: rule

The Establishment Clause prohibits government endorsement or coercion of religion.

FREE RELIGION - ESTABLISHMENT CLAUSE: step 1 discrimination

If government favors a religion → Strict Scrutiny

FREE RELIGION - ESTABLISHMENT CLAUSE: step 2 Coercion / Endorsement

Does the government:

• Coerce participation?

• Endorse religion?

FREE RELIGION - ESTABLISHMENT CLAUSE: step 3 History & Tradition

Is the practice historically accepted?

FREE RELIGION - ESTABLISHMENT CLAUSE: step 4 - funding

• Neutral program? → allowed

• Excluding religion? → unconstitutional (Carson)

ANALYSIS

• The program is/is not neutral because ________.

• Religious entities are/are not treated equally because ________.

FREE RELIGION - ESTABLISHMENT CLAUSE: analysis

• The government action does/does not coerce religious participation because ________.

• It does/does not endorse religion because ________.

• It does/does not discriminate among religions because ________.

• Under history and tradition, ________.

FREE RELIGION - ESTABLISHMENT CLAUSE: conclusion

The _________ government action is constitutional/unconstitutional under the Establishment Clause because it does/does not coerce or endorse religion and is/is not consistent with historical practices and neutrality principles.

THINK: “Coercion / Endorsement / Neutrality?”

play in the joints

“The Constitution allows some space where the government may accommodate religion without being required to do so.”